Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1905-12-31


IN THE oup0eAlE COURT or the
STATE or NEVADA.
In tho ooatter e tho AppllcntIon q
Frank p. Kelly Ii behaif Of II.
oous1a, Tor Writ 81 b1aboae Corpus,
VIM. Woodburn, Atty. for Petitioner.
Attorney General James g. Sweeney
for tlae state.
Upon the application Of Frank p.
Kelly. In behalf Of H Osuna, Z 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 ]. r..
Bradley, Sheriff Of Esmeralda County.
upon q commitment Of the Justice of
the eace Of hawthorne Township to
answer the charge Of rape committed
upon one Harriet Averill 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 SUecific 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 a
written statement signed by one Har-
ry Averill and attested by two wit
nesses day after the commission If
said alleged Offense was adpitted 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 l.
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 anv 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
of committing a public offense."
1t appears from the record that
Osunay was arrested and brought BE.
fore the Justice of the Peace at Haw.
thorne on the 6thd ay Of October. 1905
and the complaint Of the prosecuting
witness, charging him with the crime
of rape, read to him. At the request
of the defendant the examination was
continued until October 10th. at
which time the defendant appeared
with his attorney and the examina.
ton was proceeded with. 1t appears
that the complaining witness was not
present and her name was called at
the door without response. The dep
uty sheriff, A. N. Jones, was then
called and sworn as witness ard ties
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: Il
think she has gone" The absence of
in the testimony both as Harriet and
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
1t appear what steps were taken to
procure her testimony at the hearing
Upon this showing OF the absence
or the witness Harriet Averill, the
District Attorney offered in evidence
what purported to be written state.
ment OF the facts OF the alleged raDe
signed by the said Harriet Averill on
the evening OF the 4th OF October.
in the presence OF witnesses and de-
clared II the If presence to be true
statement OF the facts or the alleged
crime. This written statement was
admitted in evidence over the objec-
ton of the defendants attorney
witness to this written statement
hobert A. Loyegrove. Farmer N
Gna'se VI NO WAheT LAKE Iiiuian !.
ness,Iva,ion, was perMitleu. over ue
lenuan.s oo1e..ion' - .esliy ena.
Hdu WIfttcH Ills SudtcAHtAt III TIE