Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1906-01-03
IN THE SUPREME COURT OF THE
STATE OF NEVADA.

In the Matter of the Application OF
Frank p. Kelly in behalf OF 4.
Osuna, for Writ Of Ha5eas Corpus
. I'm. Woodburn, Atty. for Petitioner
Attorney General James G. sweeney
for the State.
Upon the application Of Frank ?.
1elly, in behalf OF H. Osuna, writ
of habeas corpus was issued return
able before, this Court It appears
rom the retu of the writ that II
0suna is held in the custody of j. +
3radley. Sheriff Of Esmeralda 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
It is complained by petitioner that
this commitment was issued without
reasonable or p obab9e cause and IN
support Of this contention the follow
ing specific charges are made res
Decting 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 AMI
testify at said examination; but a
written statement signed by one Har-
ry AVerill and attested by two wit
nesses a day after the commission IF
said alleged offense was admitted in
evidence by the said Justice of the
Peace against the objection OF the at
tornev Of said Osuna. That no legal
testimony was given showing thai
Harry Averill WHIP signed said state
ment, was the same person as Harriet
Ayerill mentioned in said complaint
and upon whom the said rane was I
legged to have been committed That
no legal evidence was introduced hy
the state at said examination, which
is shown by certified copy OF the ties
timonv taken at said examination, anC
which is hereunto annexed and made
part Of this petition. That there
wes no proof that the crime of rape
or anv ether offense had been commit
ted on Harriet Averill, or upon Harry
Averill, or that there was sufficieu
cause to believe tho said Osuna guilt!
of committing public offense."
It appears from the record this
Osuna was arrested and brought he
fore the Justice of the Peace at Haw
thorne on the 6thd ay of October, 1905
and the complaint of the prosecutin.
witness, charging him with the crime
of rape, read to him. At the reQues
of the defendant the examination wa
continued until October 10th, al
which time the defendant appearei
with his attorney and the examine
ton was proceeded with 1t appears
that the complaining witness was NO
present and her name was called a
the door without response. rhe deD
uty sheriff. A. N. Jones, was the
called and sworn as witness and ties
titled that when he brought the de
PENDANT to Hawthorne that the CON
j plainant and her mother accompanie,
them. Upon being asked, Where =
Harry Ayerill now" answered.: g
think she has gone" The absence o
this important witness, who is called
in the testimony both as Harriet AM
as Harry Averill. and who is show
! at one time to have been within reacl
! of the process Of the court, is no
accounted for in the record nor doe
it appear what steps were taken +
procure her testimony at the hearing
Upon this. showing. Of the abseno
OF the witness HARRIET Averill, tn
! District Attorney offered in evidenc
what purported to be- a written, stats
ment of the facts, of the alleged rapl
signed by the said Harriet Averill o.
the evening Of the 4th Of October
in the presence OF witnesses and ID
clared in, the ir presence to be- q tru
statement of the facts, or, the allege,
crime. This written statement wa
admitted In evidence over the obje<
ton Of the defendants attorney.
A witness to this written statement
Robert A. Loyegrpye. Farmer
charge of the Walker Lake India
Reservation, was permitted. over d,
PENDANTS objection. to testify that b
had written this statement fer tn
facts, that he read the same over !:
her before she signed it. and that b
warned her Of the seriousness Of tn
charge she. was making against tn
t defendant,
7 S. w. Hance, a telegraph operate
residing at the place where the Grim
is alleged to have been committee
was, also. permitted to testify. ov-
defendants objection. that he was
witness to the written statement an
heard the complainant detail the fac
therein stated: also. that at noon
the. same day that the said Harri
Averill had come to his Office ar
had made the same charges again
the defendant to him, and, that at h
solicitation, he dictated a telegram
her mother, who was then in 8;
Francisco, relative to the assault al
requesting her 70 come home at ono
copy of this telegram was offer
and admitted in evidence over the &
PENDANTS objection.
Dr. F. C. Pache, a physician res
ing at Hawthorne, was also permit
to testify, over defendants objectic
that at the time of making an exa
ination of the person Of the CO.