
    No. 9726.
    In the Matter of the Application of PAUL MALONE and DORIS ANN MALONE, His Wife, for a Writ of Habeas Corpus.
    299 Pac. (2d) 455.
    Decided July 30, 1956.
    
      Messrs. Jones, Olsen & Dowlin, Billings, Mr. S. Y. Larrick, Mr. M. Deam Jellison, Kalispell, for Petitioners.
   MR. CHIEF JUSTICE ADAIR:

The duly signed and verified petition of Paul Malone and Doris Ann Malone, his wife, addressed to the Chief Justice and filed in the office of the clerk of the Supreme Court of Montana on July 24, 1956, was on that day presented and orally argued by petitioners’ counsel, Paul G. Olsen, Esq., of Billings, Montana.

From the statements set forth in the petition and those made in answer to questions put to petitioners’ counsel during his oral argument, it appears:

That the petitioners, Paul Malone and Doris Ann Malone, are husband and wife; that from a used car dealer at Kalispell, Montana, the petitioners purchased a second hand automobile on an installment contract of sale and purchase, signed by petitioners as purchasers; that the seller of said second hand automobile assigned said installment contract of sale and purchase to the Conrad National Bank in Kalispell, Montana; that because of business and financial difficulties the petitioners became unable to pay certain of the installments on the contract when and as they became due;

That on July 16, 1956, the petitioners were arrested in Yellowstone County, Montana, under authority of a warrant of arrest issued by Henry Madsen, a justice of the peace of Flathead County, based upon a complaint charging the alleged concealment by petitioners of said second hand automobile, which complaint was subscribed by J. L. Hensley, an employee of the Conrad National Bank in Kalispell, Montana, but not subscribed or sworn to by the county attorney of Flathead County in which county it was issued as is required by R.C.M. 1947, section 94-5905.

The petition, inter alia, further states: That the petitioners were taken into custody by the sheriff of Flathead County, Montana, and that they are now by him kept and incarcerated in the Flathead County jail in Kalispell, Montana, under the criminal charge of having concealed from the vendor an automobile in the value of over $50.00, but the complaint fails to state that the complainant is the vendor of such automobile, or that the vendor of such automobile has been defrauded, or that the vendor made any demand upon the petitioners for possession of the automobile after default was made in the installment payments due under the contract of sale and purchase.

In their verified petition the petitioners further state:

“That Doris Ann Malone, one of the petitioners herein is presently pregnant and expecting birth of the child sometime during this month of July and the Sheriff of Flathead County, Mr. Richard Walsh has confined Doris Ann Malone illegally in a jail cell that is known to be without water and toilet facilities and said confinement being* solitary in a dirty, filthy, lice and rat ridden cell block without any regard for her health, mental condition and without any concern for the expectant child by authorities of Flathead County. The authorities and complainant in Flathead County have been contacted and they refuse to give any consideration to the health and well-being* of Doris Ann Malone or the expectant child and the expectant child may have the stigma of being born in a jail that has been rated as one of the worst in the country for many obvious reasons.”

It is ordered that a writ of habeas corpus issue as prayed for in the petition; that such writ be directed to Richard Walsh, sheriff of Flathead County at Kalispell, Montana, commanding him to have the body of Paul Malone and the body of Doris Ann Malone, his wife, before the Honorable Dean King, the duly elected, qualified and acting judge of the district court of the eleventh judicial district of the State of Montana, in and for the County of Flathead or before any other district judge who may at the time be presiding, sitting or acting in said district court, for, on behalf of, or in the place or stead of the Honorable Dean King, district judge aforesaid, and that the said Richard Walsh as sheriff of Flathead County, Montana, or his undersheriff or deputy sheriff have the body of Paul Malone and the body of Doris Ann Malone, his wife, in the courtroom of said district court in the City of Kalispell, County of Flathead, in the State of Montana, on Tuesday, the 31st day of July 1956, at the hour of 2:00 o’clock P.M. of that day, to do and receive what shall then and there be considered concerning the said Paul Malone and Doris Ann Malone, his wife, together with the time and cause of the detention of each of said persons; and that the said sheriff have then and there the said writ of habeas corpus and that he make due return thereon.

It is further ordered that said writ may be served by any peace officer of the state or by any other person qualified to serve process or summons under the provisions of the Revised Codes of Montana of 1947.  