People v. Breeding

SHAW, J.

Defendants were convicted upon an information charging them with the crime specified in section 269a of the Penal Code, it being alleged that on or about the twenty-fifth day of May, 1911, they did willfully and unlawfully live in a state of cohabitation and adultery with each other, etc.

[361]

The charge of living in a state of cohabitation and adultery, an offense which can be committed by one only who is married, necessarily implies that the accused was a married person. Hence, the failure to allege in direct terms that defendants were married did not render the information insufficient.

(People

v.

Silva,

8 Cal. App. 349, [97 Pac. 202].)

Since those only who occupy the status of married persons are capable of committing the crime with which defendants were charged

(Ex parte Sullivan,

17 Cal. App. 278, [119 Pac. 526];

In re Cooper,

162 Cal. 81, [121 Pac. 318]), and since by implication the information alleged that each of the defendants was lawfully married to other than his or her codefendant, it was, therefore, necessary, in order to justify a conviction, to prove such implied allegation of marriage. As to defendant Breeding, no evidence was introduced which in the slightest degree tended to establish this essential element of the

crime;

indeed, no evidence at all was offered touching the question. For this reason the court should have granted the motion made at the close of the evidence offered on behalf of the people for the dismissal of the prosecution as to defendant Breeding.

Section 269a of the Penal Code, prior to the amendment thereof in May, 1911, provided that every person who lived in a state of open and notorious cohabitation and adultery was guilty of a misdemeanor. By act of the legislature, approved March 21, 1911, and which became effective on May 20, 1911, the section was amended by striking out the words “open and notorious.” Prior to the time this amendment went into effect the acts with which defendants were charged constituted no offense whatever under the laws of this state.