119 P. 526 | Cal. Ct. App. | 1911
Petitioner was committed to the custody of the chief of police on account of nonpayment of a fine imposed by a police judge in a certain proceeding wherein petitioner was charged with cohabitation and adultery with a married woman named. The affidavit of complaint upon which the proceedings before the police court were based charged that, on a day named, in the city of Los Angeles, "the crime of adultery and cohabitation was committed by Francis A. Sullivan (petitioner herein), who at the time and place last aforesaid did willfully and unlawfully live with one Corinne Royse in a state of cohabitation and adultery, the said defendant Francis A. Sullivan being then and there an unmarried man, and the said Corinne Royse being then and there a married woman." The sufficiency of this affidavit is the question for determination. The proceeding was based upon section 269a of the Penal Code, as amended March 21, 1911 [Stats. 1911, p. 426], which provides that "every person who lives in a state of cohabitation and adultery is guilty of a misdemeanor and punishable by a fine," etc.
Adultery is defined by section 93 of the Civil Code as "the voluntary sexual intercourse of a married person with a person other than the offender's husband or wife." It was made to appear in the affidavit of complaint that petitioner was not a "married person"; hence he was shown to be incapable of committing the offense. *280
Conceding that petitioner was not, for the reason given, charged with committing the substantive offense as the same is defined by the code, it is, nevertheless, insisted by respondent that, inasmuch as the complaint alleged the woman with whom he cohabited to be a married woman, and therefore guilty of adultery, he must be deemed a principal under the provisions of section
While unnecessary to the decision of this case, we are of the opinion that it manifestly was not the intent of the legislature, by said section
The prisoner is discharged.
