Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1906-01-05
N THE SUPREME COURT OF THE
STATE OF r.EVADA. So
n the Matter Of the Application of
Frank p. Kelly in behalf Of =.
Osuna for Writ Of Eaheas Cnrnus

Frank p. Kelly in behalf Of =.
Osuna, for Writ Of Habeas Corpus.
WOODBURY., Atty. for Petitioner.
,t-c rney General James G. Sweeney
or the State.
: Upon the application Of Frank p.
Zelly, in behalf of H. Osuna, writ
# habeas corpus was issued return
able before this Court. It appears
rom the return of the writ that III.
0suna is held in the custody of J. F.
Bradley. Sheriff Cf Esmeralda County,
unon commifm ent of the Justice of
ne eace of hawthorne Township to
answer the charge of rape committed
Upon enc Harriet Averill on the night
If 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
7eeting the testimony introduced upon
the preliminary examination of the
defendant
THAT the said prosecuting witness.
Famiet Averin, upon whom the said
crime of rape wes alleged to have
been committed failed to appear AMI
= u
written statement signed by one Har-
ry Averill and attested by two wit
ntSses 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
tornay Of said Osuna That no legal
testimony was given showing that
Harry hverin, who signed said state
men+, was the same person as Harriet
AveriN mentioned il said complaint,
and upon whom the said rape was 4
l0ged to have been committed. That
no legal evidence was introduced by
the State at said examination which
is shown by cert ed copy OF the tes-
timony taken at said examination. and
which is hereunt0 annexed and made
q part Of this petition That there
was no proof that the crime of raDe
or anv other Offense had been commit
ted on Harriet Averil. or upon Harry
Averil or that there was sufficient
cause to believe tho said Osuna guilty
of committing a public offense."
It appears from the record that
Osura was arrested and brought be
fore the Justice Of the Peace al Haw-
thorne on the 6thd ay of October 1905.
and the complaint of the prosecuting
witness, charging him with ihe crime
of rape. read to him. At the request
of the defendant the examination was
continued until October 10th, az
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 deo-
uty sheriff A N. Jones, was then
called and sworn as witness and ties
tilted 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: 81
think she has gone" The absence of
! this important witness. who is called
| in the testimony both as Harriet and
] as Harry Averiil, 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 to
procure her testimony at the hearing
Upon this showing of the absence
of the witness Harriet Averill. the
DlStTlCI Attorney Ou0I0Q III eV1u0nCe
/ what purported to be a written state
ment of the facts of the alleged rape
signed by the said Harriet A~rill on
! the evening OF the 4th of October.
I in the presence of witnesses and de-
clared in the ir presence to be 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 IN
charge of the Walker Lake Indian
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 u
her before she signed it. and that he
warned her Of the seriousness of the
charge she was making against the
defendant
S. w. Hance, telegraph Operator
residing at the place where the crime
is alleged to have been committed
was, also. permitted to testify. ovel
| defendants objection, that he was q
witness to the written statement and
heard the complainant detail the facts
| 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 +
her mother, who was then in Sal
Francisco. relative to the assault ans
requesting her to come home at once
A copy of this telegram was offere
and admitted in evidence over the &c
} PENDANTS objection
DR.. F. C. Pache, a physician resi-
ing at Hawthorne, was also permitte
to testify. over defendants objection