The appellant was charged by information with the crime of adultery, under § 2457 Rem. Comp. Stat. [P. C. §8769], which provides as follows:
“Whenever any married person shall have sexual intercourse with any person other than his or her lawful spouse, both such persons shall be guilty of adultery and upon conviction thereof shall be punished by imprisonment in the state penitentiary for not more than two years or by a fine of not more than one thousand dollars: Provided, That no prosecution for violation of the provisions of this section shall be commenced except on complaint of the husband or wife *538made before a committing magistrate, or by filing an affidavit with tbe prosecuting attorney, nor after one year from tbe commission of tbe offense.”
Tbe information contains no statement that the prosecution bad been “commenced ... on complaint of tbe husband or wife made before a committing magistrate or by filing an affidavit with tbe prosecuting attorney.” Tbe appellant objected to tbe information for tbe reason of such omissions. Section 2457 was enacted by tbe legislative session of 1917 (Laws of 1917, p. 341), and prior to that time §205, cb. 249, Laws of 1909, p. 950, was in effect, which was exactly in tbe same language as § 2457, except that there has been added “ or by filing an affidavit with tbe prosecuting attorney.”
This court in State v. La Bounty, 64 Wash. 415, 116 Pac. 1073, bad occasion to consider tbe exact question now before us, under tbe act of 1909, and Judge Dunbar, in rendering tbe opinion of tbe court, said:
“One of tbe rights of defendant charged with this crime would be to know whether tbe complaint bad been made by tbe husband or wife as prescribed by law. This information be would have a legal right to have before be could be put upon trial. Tbe only way that be could obtain it would be from tbe information or indictment itself. If tbe indictment or information did not disclose this fact, it would be subject to a demurrer as any other indictment would be that did not comply with tbe terms of tbe law upon which it was based. Tbe demurrer would have to be decided upon tbe face of tbe information, and not upon testimony adduced. Hence, we conclude that tbe statute prescribes a rule of law instead of a rule of evidence. ’ ’
This decision would seem to be conclusive of tbe matter before us and to entitle tbe defendant to bis discharge.
*539The information in the instant case was verified by one of the same name as the person stated in the charging part of the information as being the husband of the woman charged jointly with the defendant with the crime, and some contention is made that this is a sufficient compliance with the statute. We do not so view it. The statute provides that the offended husband must file an affidavit with the prosecuting attorney, and a mere verification of an information is not a compliance with the statutory requirement, nor does this verification meet the rule laid down by Judge Dunbar that the information shall disclose the fact that the complaint has been made as prescribed by law. Section 2051, Rem. Comp. Stat. [P. C. § 9261], relating to verification, is as follows:
“All informations shall be verified by the oath of the prosecuting attorney, complainant, or some other person.”
The verification in the instant case is merely that the subscriber to it has read the information, knows the contents thereof and believes the same to be true. It cannot be held that this is the affidavit contemplated by the statute. The verification, under § 2051, need not be made by the complainant.
Under the authority of the La Bounty case, supra, the judgment is reversed and the defendant discharged.
Main, C. J., concurs.