People v. Gates, No. 10,024

No. 10,024 | Cal. | Jul 1, 1873

By the Court:

The defendant was convicted of the crime of living in a state of open and notorious cohabitation and adultery with a certain woman named in the indictment. The conviction was had under the second section of the Act of 1872, entitled “An Act to punish adultery” (p. 380). The offense consists in living “in a state of open and notorious cohabitation and adultery;” the notoriety is as material in making out the offense as is the fact of adultery committed.

In this case, while the evidence tends in some degree to show that the defendant committed adultery with the woman named in the indictment, there is not the slightest proof of a living with her in a state of notorious adultery or cohabitation within the intent of the statute. (Wright v. The State, 5 Blackford R. 358.)

Judgment reversed and cause remanded for a new trial.