Scarpa

This is an appeal from a judgment of conviction of the defendant upon a charge of having violated the provisions of section 269b of the Penal Code, and from an order denying his motion for a new trial.

The foregoing section of the Penal Code, as amended in 1911, [Stats. 1911, p. 426], reads as follows: “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 amendment of this section made in 1911 consisted in striking from the former section the words “open and notorious,” before the phrase “cohabitation and adultery.” The contention of the defendant herein is that the evidence adduced at the trial was wholly insufficient to establish the charge that the defendant and the woman in question “lived together in a state of cohabitation and adultery.” This contention is based upon the fact, proven at the trial, that during the several months that the defendant and a woman, Mrs. Mae Beach, were asserted by the prosecution to have maintained illicit relations with each other, the defendant was living and cohabiting with his wife, and…

I dissent from the order denying a hearing in this court after decision of the district court of appeal, for the reason that however discreditably the evidence, as stated in the opinion, reflects upon the defendant, from the standpoint of morals, I dp not think it makes a ease within the purview of section' 269b of the Penal Code, under any fair construction of the provisions of that section. To constitute the felony there defined there must be, according to the express terms, a living together in a state of cohabitation, which means, as was well said in People v. Breeding, 19 Cal. App. 362 , [ 126 Pac. 181 ], “the living or dwelling together as husband and wife, ... in other Avords, a counterfeit of the marriage relation. ’ ’ I think we all agree that there is nothing in the evidence to show any such situation, unless it is to be found in the evidence as to the conduct of the parties in the city of San Jose between the evening of December 21, 1915, and the “early morning hours” of December 23, 1915. To hold that this transitory visit of these parties to the San Jose hotel, obviously made solely for the consummation of their immoral purposes, constituted the living together…