(dissenting) — I cannot concur in the foregoing opinion.
The decision in State v. La Bounty, 64 Wash. 415, 116 Pac. 1073, was not good law either, and should be overruled. The opinion in that case contained not a single citation' of authority upon the question. It was there held that it was necessary to allege that the offended spouse complained of the accused in order to properly allege the crime of adultery under the statute.
*541The statute provides that the complaint may be made by the offended spouse before a committing magistrate, or by filing an affidavit with the prosecuting attorney. The "record in this case shows that the prosecution was commenced by the injured spouse by a complaint made before a committing magistrate, who committed appellant to the superior court for trial upon the accusation. That complied with the statute as to the complaint being made by the injured spouse. It certainly has never been necessary in the prosecution of any criminal charge to allege that proceedings had been had in an inferior tribunal. The supreme court of Minnesota, in passing upon a case under a similar statute constituting adultery on the part of a married woman, the sole dfference between it and our statute, except that the statute there did not provide for a complaint being made before a committing magistrate, held that where a complaint was made before a committing magistrate and the accused bound over for trial to the district court, the case had been properly commenced by the injured spouse. State v. Dlugi, 123 Minn. 392, 143 N. W. 971, decided in 1913.
The supreme court of Iowa decided in 1914 that, where an information charging the defendant with having committed the offense of adultery was signed and sworn to by his wife, the prosecution was commenced on her complaint. State v. Conklin, 164 Iowa 718, 146 N. W. 821.
The information in this case was signed and sworn to by Joe Beten, the injured spouse, which alleged that appellant had committed the offense of adultery on August 11, 1922, and prior thereto, with Mary Beten at the time the lawful wife of Joe Beten, and not the wife of appellant. The facts alleged in the information and the fact that they were sworn to by Joe Beten cer*542tainly distinguish, this case from the La Bounty case, supra, in any event.
The judgment should therefore he affirmed.
Mitchell, J., concurs with Holcomb, J.