Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1905-12-27
IN THE SUPREME COURT OF THE
4aATe oEsNeVADA.Ts 4tI1ft81

IN THE SUPREME COURT or THE
95SATE OFsNeNADA.Ts 80 5tlslif
In the Matter Of the Application Of
Frank Kelly I'm behxIf II.
osuna, for Z Writ Of Habeas Corpus.
VIM. Woodhdrn, ATTY. Tor Petitioner.
Attorney General lanes G. Sweeney
for the State.
Upon the application OF Frank r.
Kelly. In behalf Of III. Osuna, 4 writ
Of habeas corpus was issued return
able before this Court. It appears
from the return OF the writ that II.
Dsuna is SHIELD In the custody 6of j. 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 eAverfH on the night
of the Sd Of. October. 1905.
It 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
W
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 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
Ayerill mentioned in said complaint,
and upon whom the said rape was l.
legged to have lbeen committed That
no legal evidence was introduced by
the State at said examination, which
is shown by certified copy of the ties.
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
cause to believe the said Osuna guilty
of committing public offense"
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, 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. It appears
that the complaining witness was no,
present and her name was called al
the door without response. The del,
! uty sheriff, A. NJ Jones. was then
called and sworn as witness and ties
S titled that when he brought the de
PENDANT to. Hawthorne that the com
!. plainant and her mother accompanied
Them Upon being asked, where 4
Harry fAveriH NOW ?r answered. g
think she has gone. The absence so
this important witness. who is called
in the testimony both as Harriet and
rs Harry Averill, and who is shown
at one time to have been within reach
of the process q the court, is MOI
accounted for in the record nor doe:
it appear what steps were taken K
procure her Testimony at the hearing
I Upon this showing OF the absence
pfi the witness Harriet Ayeriu, eths
District Attorney offered. in evidences
what purported to be . written state
ments Of the facts 81 the alleged rape
signed by the said Harriet Aserill or
the evening iof thes eth Of October
In the presence, OF witnesses and de
clared in the ir presence to be Z true
statement Of the facts OF tie alleges
crime This written statement was
admitted in evidence over the. objec
ton Of the defendants attorney.
II A witness to this written statement
Robert A. LOvegrove, Farmer u
charge of the Walker Lake India7
Reservation, was permitted. over de
PENDANTS objection, to testify that h
had written this. statement for thu
complainant as she detailed TIL
facts, that he read the same over I;
| her before she signed lit. and that. h
warned her Of the seriousness Of tn,
charge she was making against tn
defendant =; e
8. w. FIance. telegraph operate,
residing at the place where the Grim
| is alleged to, have been committed
was. ALSO. permitted to testify, owe
defendants objection, that he was
witness to the written statement an
heard the complainant detail the fact
therein stated; Also. that at noon {
the same day that the said Harri.
Averiil had come to his ONCE an
had made the same charges .againi
the defendant to him. and, that at III
solicitation, he dictated q telegram
her mother. who was then in So
Francisco. relative to the assault ar
requesting her to come home, at enc
A copy of this telegram was offert
and admitted in evidence over the {
PENDANTS objection =.
DR.. r. c. Pache, a physician resi-
ing at Hawthorne. was also permit.
to testify, over defendants obiectio
that atathe time of making an exa1
nation Of the person OF the col