
    WYATT HAGAN et al. v. STATE.
    No. A-9901.
    Jan. 7, 1942.
    (121 P. 2d 315.)
    Mac Q.. Williamson, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., and O. E. Enfield, Co-. Atty., of Arnett, for the State.
    C. B. Leedy, of Arnett, for defendants.
   BAREFOOT, P. J.

Wyatt Hagan and Esther Bender were charged in the district court of Ellis county with the crime ,of adultery, were tried, convicted and defendant Wyatt Hagan assessed a fine of |500 and costs and defendant Esther Bender1 assessed a fine of f200 and costs. Both defendants have appealed.

This case was filed in tbis court on tbe 27tb day of July, 1940. On tbe 17tb day of February, 1941, a motion was filed to abate tbe same as to tbe defendant Wyatt Hagan for tbe reason that said Wyatt Hagan died on February 10, 1941. On tbe 19tb day of February, 1941, an order was entered abating, tbe same as to tbe defendant Wyatt Hagan for tbe reason above stated. Hagan v. State, 71 Okla. Cr. 262, 110 P. 2d 928. Tbis appeal is now pending as to tbe defendant Esther Bender.

A number of errors are presented which we now deem it unnecessary to consider. Tbe only question necessary for consideration is as to whether tbe evidence was sufficient to sustain tbe charge of “open and notorious” adultery under tbe principles announced by tbe former1 decisions of tbis court. Tbe statute upon which tbis charge was based is Oklahoma Statutes 1931, section 1837, O. S. A., Title 21, § 871, which is as follows:

“Adultery is tbe unlawful voluntary sexual intercourse of a married person with one of tbe opposite sex; and when tbe crime is between persons, only one of whom is married, both are guilty of adultery. Prosecution for adultery can be commenced and carried on against either of tbe parties to tbe crime only by bis or her own husband or wife as the case may be, or by tbe husband or wife of the other party to the crime: Provided, that any person may make complaint when persons are living together in open and notorious adultery.”

In construing tbis statute it has been tbe uniform bolding of tbis court that, before a prosecution may be bad under tbe above section, it is necessary for tbe injured spouse to commence tbe prosecution:

“Provided, that any person may make complaint when persons are living together in open and notorious adultery.” Gill v. State, 32 Okla. Cr. 278, 240 P. 1073, 1074; Heacock v. State, 4 Okla. Cr. 606, 112 P. 949; Stone v. State, 12 Okla. Cr. 313, 155 P. 701.

In the instant case the prosecution was not commenced or prosecuted by the husband oí defendant, but by other parties. It was therefore necessary for the proof to show that there was a living together in “open and notorious.” adultery as provided by the statute.

We do not consider it necessary to go- into a detailed discussion of the evidence. We have carefully examined the record and the able briefs filed, and from such examination have come to the conclusion that the evidence was insufficient to establish “open and notorious” adultery as pronounced by the former decisions of this, court. Defendant Esther Bender was living as the housekeeper of her co-defendant Wyatt Hagan. There is evidence in the record and circumstances, sufficient to- sustain the finding by the jury of adultery had defendant 'been prosecuted by her husband as provided by the statute, but there was an utter lack of proof that she was living in “open and notorious” adultery so- far as the citizens of Shattuck, where she resided, were concerned.

In the early case of Copeland v. State, 10 Okla. Cr. 1, 133 P. 258, it is said:

“Except where persons, are living together in open and notorious adultery they cannot be prosecuted under the laws of Oklahoma unless such prosecution is commenced and carried on by the wife or husband of one or the other of the offending parties. * *
“To constitute living together in open and notorious adultery the parties must reside together publicly, in the face of society, as if the conjugal relations existed between them, and their illicit intercourse must be habitual.”'

See, also, Kitchens v. State, 10 Okla. Cr. 603, 140 P. 619. In Burns v. State, 17 Okla. Cr. 26, 182 P. 738, it is said:

“Haying occasional illicit intercourse, without a public or notorious living together, is not sufficient to constitute the offense of living in a state of open and notorious adultery. To> constitute ‘open and notorious adultery,’ the parties must reside together publicly in the face of society, as if the conjugal relation existed between them.”

In Mathis v. State, 60 Okla. Cr. 58, 61 P. 2d 261, it is said:

“Except where persons are living together in open and notorious adultery, they cannot be prosecuted under the laws of Oklahoma unless such prosecution is commenced and carried on by the wife or husband of one or the other of the offending parties, * * *
“To' constitute ‘living in open and notorious adultery’ under the statute, there must be something more than occasional illicit intercourse indulged in. The parties must reside together in the face of society, as if conjugal relations existed between them, and their so living and the fact that they are not husband and wife must be known in the community in which they reside.”

See, also, Barber v. State, 15 Okla. Cr. 588, 179 P. 790; Spencer v. State, 14 Okla. Cr. 178, 169 P. 270, L.R.A. 1918F, 592; Rachel v. State, 71 Okla. Cr. 33, 107 P. 2d 813; Roberts v. State, 27 Okla. Cr. 97, 225 P. 553.

Applying the law as above announced to the facts as shown by the record in this case, we find that the evidence failed to establish an “open and notorious” living together of the defendants Wyatt Hagan and Esther Bender. The court should have sustained the demurrer to the evidence and the motion to> return a verdict of not guilty.

For the reasons above stated, the judgment and sentence of the district court of Ellis county is reversed, with directions to discharge the defendant Esther Bender.

JONES and DOYBE, JJ., concur.  