Ex Parte Dickinson

• Citation: 132 S.W.2d 243
• Decision Date: 08 September 1939
• Docket Number: No. 6130.,6130.
• Parties: Ex parte DICKINSON.
• Court: Court of Appeal of Missouri (US)

132 S.W.2d 243

Ex parte DICKINSON.

No. 6130.

Springfield Court of Appeals. Missouri.

September 8, 1939.

"Not to be published in State Reports."

Original proceeding in habeas corpus by George R. Dickinson to obtain release from custody of C. S. Wattenbarger, as Jailer of Barton County, Missouri.

Petitioner released.

Harry Seneker and Walter E. Bailey, both of Carthage, for petitioner.

J. Carol Combs, of Lamar, for respondent.

FULBRIGHT, Judge.

This is an original proceeding for a writ of habeas corpus. Petitioner states that on June 14, 1939, a complaint signed and sworn to by Elizabeth Dickinson was filed in the justice court of John Pahlow, Justice of the Peace within and for City Township, Barton County, in which the petitioner, George R. Dickinson, was charged with the crime of forgery and the uttering and passing of a forged check on or about June 12, 1939; that on June 14, 1939, a state warrant based on said complaint was issued by said Justice of the Peace ordering the arrest of petitioner; and that under the authority of said warrant, C. S. Wattenbarger, Sheriff of Barton County, on June 19, 1939, took petitioner into custody and before said Justice. Petitioner further states that he was without counsel, waived a preliminary hearing, was bound over to the September term of the Circuit Court of said county, and upon his failure and inability to give bond, was committed to the Barton County jail where he has since been held in custody. He further alleges that Elizabeth Dickinson, who signed and swore to the complaint, and upon which the charge of forgery and the uttering and passing of said check is based, is the lawful and wedded wife of George R. Dickinson, the petitioner; that as his wife she is incompetent to testify as a witness against him and incompetent to make and swear to a criminal complaint of this character against her husband; that the relationship of husband and wife existed between petitioner and Elizabeth Dickinson long before the alleged offense, and existed at the time of said alleged offense; and that the parties at this time are in fact and in law husband and wife. It is further alleged that on June 19, 1939, the prosecuting attorney of Barton County filed in the Circuit Court of said county an information charging the offense of forgery and of uttering and passing a forged check; and that the same is based upon the facts and information set forth in the complaint of Elizabeth Dickinson, wife of petitioner.

Respondent filed his return in which he admitted substantially all the material allegations in the petitioner's pleadings, except that Elizabeth Dickinson was not a competent witness against petitioner and not competent to sign and swear to the complaint upon which the warrant herein was issued. He admits that Elizabeth Dickinson was at all times mentioned in the pleadings the wife of petitioner, and states that:

"On the 19th day of June, 1939, the petitioner was duly arraigned before the said John Pahlow, Justice of the Peace, and waived preliminary hearing in said cause and was by the said John Pahlow, Justice of the Peace, bound over to the September Term of the Circuit Court of Barton County, Missouri, at which time bond for the petitioner's appearance in Circuit Court was fixed by said Justice of the Peace, at two thousand dollars and upon petitioner's failure to produce bond in said sum, the commitment above described was duly executed and issued and petitioner was placed in the custody of the said C. S. Wattenbarger as Jailer of Barton County, Missouri, under and by virtue thereof.

"C. S. Wattenbarger further states that neither of the Appellate Courts nor the Supreme Court of the State of Missouri have finally determined the competency of a wife to sign a complaint against her husband, nor the competency of a wife to testify against her husband in a criminal matter in any case where the facts were such as are found in the case of the State of Missouri against George R. Dickinson, now pending in the Circuit Court of Barton County, Missouri, by virtue of which the petitioner herein is...