
    [No. 21157.
    In Bank.
    August 4, 1894.]
    Ex parte WALTER G. THOMAS, on Habeas Corpus.
    Criminal Law—Adultery—Void Judgment—Habeas Corpus.—Adultery is not made a crime by any statute of California, and mere adultery, without the parties living together in open and notorious cohabitation, does not constitute an offense; and a conviction upon a mere charge of the crime of adultery, and a judgment based thereon, is void, and a person held in custody under commitment based upon such judgment will be discharged upon habeas corpus.
    
    Hearing in the Supreme Court upon writ of habeas corpus.
    
    The facts are stated in the opinion of the court.
    
      George W. Monteith, for Petitioner.
    
      District Attorney William S. Barnes, for Respondent.
   The Court.

The return to the writ of habeas corpus issued herein shows that the petitioner was convicted in the police court of the city and county of San Francisco of the crime of adultery, and thereupon sentenced to be imprisoned in the county jail for one year, and that he is now held in custody under commitment based upon said judgment.

The judgment is void. Adultery is not made a crime by any statute of California. It is the living together in open and notorious cohabitation and adultery that is made criminal by the statute (Stats. 1871-72, p. 380), and it has been rightly held that mere adultery without the notorious cohabitation does not constitute the offense. (People v. Gates, 46 Cal. 52.)

The judgment being void the imprisonment is necessarily unlawful, and the prisoner must be discharged. It is so ordered.  