Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1906-01-06


STATE OF NEVADA.
In the Matter Of the Application of
Frank p. Kelly in behalf of y.
Osuna, for a Writ Of Habeas Corpus.
VIM. WOODBURY., 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 Esmerada County.
upon commitment of the Justice of
the eace of hawthorne Township to
answer the charge of rape committed
upon enc Harriet Averill on the night
OF the Sd of October. 1905.
1t is complained by petitioner that
this commitment was issued without
reasonableeCr probable cause and N
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 rane was alleged to have
! been committed failed to appear AMI
testify at said examination; but a
I written statement signed by one Har-
ry Averill and attested by two wit
4 nesses a day after the commission If
/ said alleged Offense was admitted in
/ evidence by the said Justice Of he
! Peace against the objection OF the 1T
! tornev of said Osupa. That no Legal
/ testimony WIS given showing that
/ Harry Averill who signed said staiA-
/ ment, was the same person as Harriet
! Averill mentioned in said complaint.
and upon whom the said rane 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-
HrCny taken at said eXamna ton and
which is hereunto annexed and made
| a part of this petition. That there
was no proof that the crime Of rape
/ or arv 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 public offense."
It 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. 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 a 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: 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 tire 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
| of the witness Harriet Averill. the
District Attorney offered in evidence
what purDorted 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 in the ir presence to be a true
statement of the facts OF the alleged
crir :. This written statement was
admitted in evidence over the objec-
tom 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, 20 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 il. and that ne
warned her of the seriousness of the
charge she was making against the
defendant
S. W Hance. a telegraph operator
residing at the place where the crime
is alleged to have been committed
was, also, permitted to testify, over
defendants objection that he was Z
witness to the written statement and
heard the complainant detail the facts
therein stated; also. that at noon q
the same day that the said Harriet
Ayerill had come to his Office ant
had made the same charges against
the defendant to him, and, that at hel
solicitation he dictated telegram {
her mother, who was then in Sa!
Francisco, relative to the assault anT
requesting her to come home at once
COPY of this telegram was offere;
and admitted in evidence over the &c
PENDANTS objection.
Dr. F. C. Pache, physician resi-
ing at Hawthorne, was also permitte,
to testify. over defendants objection