People v. McGrath

The defendant was convicted in the superior court of a misdemeanor and has appealed from the judgment of conviction, urging as ground for reversal that he was found guilty of an offense with which he was not charged and upon which he was not tried.

The charge set forth in the information was that he drove a,n automobile over and along the public highway “while then and there under the influence of intoxicating liquor.” He entered a plea of not guilty thereto and was subsequently placed on trial before a jury. After deliberating upon its verdict for some time the jury returned into court for further instructions, and one of the questions propounded to the court by the foreman was whether it was permissible for the jury “to bring in a verdict of reckless driving.” The court referred the question to the attorneys, but they were unable to agree upon the proposition, the district attorney contending that such a verdict could be legally rendered, and counsel for appellant insisting to the contrary. After considerable discussion the court of its own motion instructed the jury as follows: “ . . . that the crime of reckless driving is included in the information in this case and that when…