In Re Cooper

THE COURT.

The petitioner is held in custody on a charge of violating the provisions of section 269a of the Penal Code, as amended March 21, 1911, which provides that “every person who lives in a state of cohabitation and adultery is guilty of a misdemeanor and punishable by a fine not exceeding one thousand dollars, or by imprisonment in the county jail not exceeding one year, or by both.” The prosecution was instituted against her and one Claud C. Miller jointly, and the deposition upon which the warrant of arrest was issued and upon which the commitment for examination was based stated as follows: “That on the 27th day of December, 1911, at and in Los Angeles City, in the county of Los Angeles, state of California, the crime of cohabitation and adultery was committed by Claud C. Miller and Grace Cooper who at the time and place last aforesaid, did willfully and unlawfully live and cohabit one with the other in a state of cohabitation and adultery; the said defendant Claud C. Miller being then and there a married man; and the said Grace Cooper being then and there an unmarried woman; and the said Claud C. Miller and the said Grace Cooper not being married one to the other; and the said Grace Cooper at all times herein mentioned did know that he, the said Claud C. Miller, was a married man and was married to a woman other than herself.” The question upon which a decision is sought is whether upon these facts petitioner, being an unmarried woman, is guilty of the offense defined by the section above quoted.

Section 269b of the Penal Code, as amended March 21, 1911,

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by the same act that amended said section 269a, provides: “If two persons, each being married to another, live together in a state of cohabitation and adultery, each is guilty of a felony and punishable by imprisonment in the state prison not exceeding five years.” The origin of these two sections is an act entitled: “An act to punish adultery,” approved March 15, 1872 (Stats. 1871-72, p. 380), section 1 of which was the same as section 269a, except that the words “open and notorious” were contained therein, immediately preceding the words “cohabitation and adultery,” and section 2 of said act was the same as the portion of section 269 above quoted with the same exception. By act approved March 21, 1905 (Stats. 1905, p. 656), these two sections were incorporated in the Penal Code as sections 269a and 269b, and by an act approved March 21, 1911, (Stats. 1911, p. 426), the two sections were amended by striking opt the words “open and notorious.” We have thus referred to the history of the legislation on this subject for the purpose of showing that the only purpose of the amendment of 1911 was to dispense with the element of the notoriety of the adulterous relation, which under the law as it formerly existed was as essential as the adulterous relation itself