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 do not think it makes a case 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 livingtogether in a state of cohabitation, which means, as was well said in People v. Breeding, 19 Cal.App. 362, [126 P. 181], "the living or dwelling together as husband and wife, . . . in other words, 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 livingtogether intended by the statute appears to me to be unwarranted by any fair reading of the law.
Lorigan, J., concurred, *Page 458