Breeding

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.

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…