Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1905-12-24


IN TIE oUpHeME COURT or THE
4TA1E or NEVADA
I n the Na<toe ~ ing Application -
Frank Kelly IN bossalf 81 =.
Oeemn, Tor Writ q tsshoaa Gorpue-
Wm- Woooo0rn, Atsy. TOR PeSlteoner.
Axtoruey Neeer ~ '0Amee - sweeney
TOR tne state.
Upon the. application OF. Frank r:
Kelly, IN benan OF II Osuna, q writ
OF hapeas corpus was ISSUED return
aDle before TINS Court appears
from tne return OF the WITH tnat =.
OsunAi y ,heM IN the custody o. = IF.
bfAdley,f 6neTaHs oE Esmerasda county.
upon commitment loI the Jhstlces OF
the edce OF HaWtnorne township 70
answer Ntnez cnafge OF rape commlttca
ulsOn Cnbs r1ArIset hyefai on the snisAe
Oh. 1aes 5u- OF Ceeo0sr. ASOO2@s s 1921
y ~ implanted Dy petltfoner that
tnis commitment was issued without
reasonaDie or propaDie cause ana IN
support OF stnas contenoion the ioiioW-
Ing specinc charges are smAae res-
Pecllng the testmony intIo0ucou upon
the preilmlnary examination OF the
+ DEFENDANT:
mat the SAID prosecuting witness,
Harriet sAveriii. upon whom the said
crime OF rape was alleged to. have
been committed failed to appear and
testify at said examination; but a
written statement signed by one Har-
ry pAyerlil and attested by two wit
nfsses DAY aIter the compassion u
said alleged onense was admitted in
evidence by the SAID Justice OF me
Peace against the objection of the at
torney OF said Osuna. That no legal
testimony was given showing that
L Harry AVerlil, who signed said stale
ment, was the same person as Harriet
i Averill mentioned in said complaint,
and upon whom the sand rape was +
legged to have been committed. That
no legal evidence was introduced by
| the State at said examination, which
is shown by a certified copy of the tes-
timony taken at said examination, and
which is hereunto annexed and made
a part OF this petition. That there
was no proof that the crime of raDe
i or .anv other cffeAse had been commit
! ted on Harriet Averiil. or upon Harry
d Averili. CT tEat there was sufficient
L cause to believe the said Osuna guilty
Eof committing a public offense.
1t appears from the record that
eOsuna was arrested and brought be
lore the. Justice OF the Peace at Haw-
athorne on the 6fhd ay CT october. 1903,
and the complaint OF the prosecuting
witness, charging him with the crime
EOf rape. read to him. At the request
apf the defendant the examination was
continued until October 10th. at
which time the defendant appeared
with his attorney and the examina-
aicn was proceeded with. 1t appears
that the complaining witness was not
present and her name was called at
the door without response. The de0-
] atv sheriff. A. N. Jones. was then
! called and sworn as witness and tes-
tined that when he brought the de-
fendanf TO hawthorne that the CON-
nia1nant. ana her mother accompanies
them. Upon being asked, where $
Harry AverlH snowW answered: II
tnlnK sne mas gone me absence. OF
TINS im1ortant witness, who IS called,
In the testimony both as Harriet and
! as Harry Averili, and who Is shown
az one ume TO nave been WITHIN reach
! OF the process OF the court IS not
!, accounted Tor IN the record nor does
] IL appear what steps were taken to
procure her testimony At the hearing.
Upon this sAowlng OF the absence
| OF the witness Harriet AVeriN. tAe
District Attorney onered in evidence
what purported to be q written state
menr OF the facts OF the alleged raDe
I signed DIV the said HARRIET AvefiH on
the evening OF the 4th al October.
In the presence OF witnesses and de-
ciared IN the If presence to be q true
| statement OF the facts OF the alleged
crime. Inis written statement was
admitted IN evidence over the once
ZION q the deIendants attorney-e1 I.
witness TO TINS written Statement
rupsle' - I. -, rs,us raI1l =
p. ur 'ne )" a.ne Ae ,nu, a. 4
1850 as'n, cas pei M4s. u7.. u,ei -.
. 49,. uoJc...on' - scsuIy .ua'
/ nau ms a.., - IL l'.
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