Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1905-12-29
m THE SUPREME COURT or THE
STATE or NEVADA.

IN THE SUPREME COURT or THE
STATE or NEVADA.
In the Matter Of the Application Of
Frank p. Kelly In behalf Of u.
0suna, for Writ Of Habeas Corpus.
VIM. Woodbrra, Atty. for Petitioner.
Attorney General James G. Sweeney
for the State.
Upon the application of Frank p.
Kelly, in behalf Of H. Osuna, a writ
Of habeas corpus was issued return
able before this Court. 1t appears
from the return Of the writ that H.
Osuna is held In the custody of J. F.
Bradley, Sheriff Of Esmeralda County.
upon commitment of the Justice of
the eace of Hawthorne Township to
answer the charge of rape committed
upon one Harriet AveriH on the night
of the Sd of October. 1905.
1t is complained by petitioner that
this commitment was issued without
reasonable or probable cause and in
support of this contention the follow
ing specific charges are made res
pecting the testimony introduced upon
the preliminary examination of the
defendant
THAT the said prosecuting witness,
Harriet Averill, upon whom the said
crime of rape was alleged to have
been committed failed to appear and
testify at said examination; but
written statement signed by one Har-
ry Averill and attested by two wit
nesses day after the commission of
said alleged offense was admitted in
evidence by the said Justice Of The
Peace against the objection of the at
torney of said Osuna That no legal
testimony was given showing that
Harry Averill, who signed said state
ment, was the same person as Harriet
Averill mentioned in said complaint,
and upon whom the said rape was T.
legged to have been committed That
no legal evidence was introduced by
the State at said examination, which
is shown by 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 rape
or any other offense had been commit
ted on Harriet Averill, or upon Harry
Averill, or that there was sufficient
cause to believe the said Osuna guilty
1t appears from the record that
Osuna was arrested and brought be
fore the Justice of the Peace at Haw-
thorne on the 6thd ay of October, 1908,
and the complaint of the prosecuting
witness, charging him with the crime
of rape, read to him. At the reque st
of the defendant the examination was
continued until October 10th, at
which time the defendant appeared
with his attorney and the examine.
ton was proceeded with. 1t appears
that the complaining witness was not
present and her name was called at
the door without response. The deD-
uty sheriff, A. N. Jones, was then
called and sworn as witness and tes-
titled that when he brought the de-
PENDANT to Hawthorne that the COM
plainant and her mother accompanied
them. Upon being asked, Where IS
Harry Averill now?" answered: II
think she has gone" The absence of
this important witness. who is called
in the testimony both as Harriet end
as Harry Averill, and who is shown
at one time to have been within reach
OF the process of the court, is not
accounted for in the record nor does
it appear what steps were taken to
procure her testimony at the hearing.
Upon this showing OF the absence
OF the witness Harriet Averill, the
District Attorney offered in evidence
what purDorted to be written state
ment of the facts of the alleged rape
signed by the said Harriet Averill on
the evening of the 4th of October,
in the presence of witnesses and de-
clared in the ir presence to be true
statement of the facts OF the alleged
crime. This written statement was
admitted in evidence over tie objec-
ton of the defendants attorney
A witness to this written statement,
Robert A. LOvegrove, Farmer IN
charge of the Walker Lake Indian
Reservation, was permitted. over de-
PENDANTS objection to testify that he
had written this statement for the
complainant as she detailed the
facts, that he read the same over %
her before she signed it. and that he
warned her of the seriousness of the
charge she was making against the
defendant
S. w. Hance, telegraph operator.
residing at the place where the crime
- dilSS0u " nave Uctu COI1ulittCu,
was. also. permitted to testify, over
defendants objection, that he was a
witness to the written statement and
heard the complainant detail the facts
therein stated; also, that at noon OF
the same day that the ssid Harriet
Averill had come to his Office and
had made the same charges against
the defendant to him. and. that at her
solicitation, he dictated telegram II
| her mother. who was then in Sar
Francisco, relative to the assault and
requesting her to come home at once
copy of this telegram was offered
and admitted in evidence over the Ge
PENDANTS objection.
DR.. F. c. Paehe, physician resi1
| ing at Hawthorne, was also permitted
to testify, over DEFENDANTS objection
1 that at the time Of making an exam
Il