(dissenting) — The infox-mation in this case was filed under section 2440, Rem. & Bal. Code, which provides, among other things, that “every person who shall live with or accept any earnings of a common prostitute,” shall be punished by imprisonment in the state penitentiary. The generally accepted definition of a common prostitute is a woman given to promiscuous sexual intercourse for hire or gain. Commonwealth v. Cook, 12 Metc. (Mass.) 93; State v. Gibson, 111 Mo. 92, 19 S. W. 980; Davis v. Sladden, 17 Ore. 259, 21 Pac. 140; Springer v. State, 16 Tex. App. 591; State v. Ruhl, 8 Iowa 447; State v. Stoyell, 54 Me. 24, 89 Am. Dec. 716.
It occurs to me that the legislature had this class of prostitutes in mind when it enacted the above section, else why refer to their earnings. I am therefore of opinion that the instx-uction complained of was erroneous and calls for a reversal of the judgment. If the woman was not a common prostitute, as thus defined, the appellant is guilty of another and lesser offense, for which he should be prosecuted and punished.