People v. Silva

SHAW, J.

The appellant, Manuel Silva, and one Mary Rodrigues, were jointly charged by indictment, under section 269a, Penal Code, with the crime of living “in a state of open and notorious cohabitation and adultery with each other, said parties not being then and there married to each other.” The indictment contained no direct charge that either of said parties was married at all. A demurrer was interposed to the indictment upon the grounds, among others: First, that the facts stated in the indictment did not constitute a public offense; and, second, that the indictment did not substantially conform to the requirements of sections 950, 951 and 952, Penal Code. The demurrer was overruled, and the trial resulted in the conviction of appellant, who thereupon made a motion in arrest of judgment, on substantially the same grounds specified in his demurrer. The motion was denied. The appeal is on the judgment-roll.

Section 269a provides that “every person who lives in a state of open and notorious cohabitation and adultery is guilty of a misdemeanor.” The indictment charges that “the said Manuel Silva and said Mary Rodrigues, before the finding of this indictment and between the 1st day of February, 1907, and the 14th day of January, 1908, and at and

[351]

in the county of San Luis "Obispo, state of California, did willfully and unlawfully live in a state of open and notorious cohabitation and adultery with each other, and the said Manuel Silva and the said Mary Rodrigues not being then and there lawfully married to each other, contrary,” etc. The general rule is that an indictment is sufficient which charges the offense in the language of the statute. “When the statute defines or describes the acts which shall constitute a particular offense, it is sufficient in an indictment to describe those acts in the language employed in the statute, applying them, of course, concretely to the person charged.”

{People

v.

Ward,

110 Cal. 369, [42 Pac. 894].) This is particularly true where the words used in the statute in' defining the offense have a well-recognized or technical meaning. In this case, not only does the statute specify just what acts shall constitute the offense, but in so doing employs words the meaning of which is furnished by the codes. Section 93, Civil Code, defines adultery as “the voluntary sexual intercourse of a married person with a person other than the offender’s husband or wife.” The exception to the rule is well stated by Mr. Justice Lorigan in