The herald., 1897-09-25

10 nave the name naDltatlOn.
I'm State VS.. Crowner, ct al, Sc Mo-,
150, the court says: The defendants In
this case are charged with living in a
state Of open and notorious adultery.
The offense consists of an open and no.
torious living or cohabiting together.
Occasional Illicit intercourse will not
constitute the offense. The statute was
intended to provide against persons who,
in defiance of morality and OF the good
or we'll being Of society, should openly
live together. They must reside togeth-
er publicly, in the face Of society, as if
the conjugal relation existed between
them. Their Illicit intercourse must be
habitual.'
And, in Searles VS.. People, 13 ILL.,, 597,
It Is said: In order to constitute this
crime the parties must dwell together
openly and notoriously upon terms as
II the conjugal relation existed between
them In other words. they must CO.
habit together. There must be an habit
ual Illicit intercourse between them.
The object of the statute was to pro-
hibit the public scandal and disgrace of
the living together of persons of oppo-
site sexes notoriously in Illicit intimacy,
which outrages public decency, having
a demoalizing and debasing influence
upon society,"
WHAT CONSTITUTES OFFENSE
ut is to be presumed that our legisla-
ture, when the act Of 1872 was passed,
was familiar with the meaning of these
words as construed by the court. and
used them accordingly. At any rate, it
is an old and familiar rule in the con-
struction Of statutes that, where words
are used which have received judicial
Interpretation, it will be presumed that
they were adopted with the meaning
which had thus been attached to them.
"The statute requires not only CO.
ha abitation in the sense used in the Ian
guage of the cases cited but also that
II must be open and notorious. Mere
clandestine adultery does not come up
to the requirement of the statute, or,
as stated in State VS.. Crowner supra,
They must reside together publicly, in
the face of society, as if the conjugal
relation existed between Them
"The few cases that appear in our own
state reports are on the line of those
already cited from other states. In
People VS.. Gates, 46 CAL, the defendant
was convicted under the second section
Of the act of 1872, set out in the fore part
OF this opinion; and on appeal the judg-
ment of the lower court was reversed.
In the opinion of the court the following
occurs: In this case, while the evil
dence 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 his
living with her in a state of notorious
adultery or cohabitation within the in
tent of the statute
Eek parte Thomas, 103 Cal, 497 was an
application to the supreme court to be
discharged on habeas corpus. The petit
toner had been convicted under the
first section of the act in question, for
the mlsdemeanor there charged. The
court said: The judgment is void.
Adultery is not made a crime by any
statute Of California. 1t is the living
together in open and notorious coha BIZ
tation and adultery that is made crimi-
nal by the statute, and 1t has been right
ly held that mere adultery, without the
notorious cohabitation does not consti-
tute the offense.' And the prisoner was
discharged.
"At the examination Of the petitioner
DelOIS tue magistrate the QlSlTlCL al
torney'S office was represented, and it
appears from the transcript of the tes-
timony taken that the evidence tending
to show the guilt Of the petitioner was
as fully given as it could be at the trial.
Yet it is very apparent that 1t falls far
short of showing probable cause of the
commission of the crime charged
against him under the law.
LAW MUST NOT BE PERVERTED
1.-The hearing of this case on the writ
was postponed from time to time, so as
to have the district attorney repre- sent
ed; and, when submitted, leave was
granted to file brief in reply to the au-
thorities cited on behalf of the petition
er. But no brief has been filed, proba-
bly, because authorities cannot be pro-
duced to support the commitment on the
testimony in the case.
However immoral and reprehensible
the conduct of the petitioner may have
been, yet he must be prosecuted and
held for trial only in pursuance of the
law as it exists; and it is not given to the
courts nor judges to make laws to fit the
occasion. The Imprisonment of the pc
titioner on the commitment in question
is without authority of law, and he
must therefore be discharged, and it is