Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1906-01-07
IN THE SUPREME COURT OF THE
STATE OF NEVADA.

STATE OF NEVADA.
In the Matter Of the Application of
Frank p. Kelly in behalf Of u.
Osuna, for Writ Of Habeas Corpus.
VIM. WOODBURY., Atty. for Petitioner.
Attorney General James G. Sweeney
for the State.
Upon the application of Frank ?.
Kelly, in behalf of H. Osuua, 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 ]. 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 AveriIl, upon whom the said
been committed failed to appear AMI
testify at said examination; but
written statement signed by one Har-
ry Averill and attested by two wit
nesses a 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
tCrnev of said Osuna. That no legal
testimony was given showing that
Harry Ayerill, who signed said state
nent, was the same person as Harriet
AyeTill mentioned in said complaint.
and upon whom the said 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-
timCny 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
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
of committing a 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, Ut
which time the defendant appeared
with his attorney and the examina
fiO~ a,c
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 a witness and tes
titled that when he brought the de
i PENDANT to Hawthorne that the com
plainant and her mother accompanied
| them. Upon being asked, Where IS
Harry Ayerill now" answered: Il
think she has gone" The absence OF
this important witness who is called
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
! it appear what steps were taken &c
procure her testimony at the hearing
Upon this showing Of the absence
Of the witness Harriet Averill, the
| District Attorney offered in evidence
what purported to be written state
ment Of the facts of the alleged rape
signed by the said Harriet Averill Oh
the evening Of the 4th of October.
in the presence of witnesses and de-
clared in the ir presence to be a true
/! statement Of the facts OF the alleged
crime. This written statement was
admitted in evidence over the objec
ton of the defendants attorney.
| A witness to this written Statement:
! Robert A. Lovegrove, Farmer n
charge Of the Walker Lake Indiaa
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 Il
her before she signed it. and that he
warned her OF the seriousness Of the
charge she was making against ths
defendant
S. w Harce, a telegraph operator
residing at the place where the crime
is alleged to have been committed
was, also, permitted to testify. owe
defendants objection, that he was
witness to the written statement and
heard the complainant detail the fact:
therein stated also, that at noon o
the same day that the said Harrie
Averill had come to his Office ant
had made the same charges agains
the defendant to him, and, that at he
solicitation, he dictated a telegram t.
her mother, who was then in Sal
Francisco, relative to the assault AM
requesting her to come home at oncc
A copy of this telegram was offere
1 and admitted in evidence over the &c
PENDANTS objection.
DR.. F. G. Pache, a physician resi-
ing at Hawthorne, was also permitte
to testify, over defendants objectio,
that at the time of making an eXan
! inatin1, of the nprSnn Of the cor