Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1906-01-04
IN THE SUPREME COURT OF THE
STATE OF NEVADA


STATE OF NEVADA.
In the Mater of the Application of
Frank p. Kelly in behalf of =.
Osuna, for 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. OsunaCa 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 Esmeralda County,
upon a commitment of the Justice of
the eace of hawthorne Township to
answer the charge of rape committed
upon one Harriet Averill 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
Meeting the testimony Introduced upon
the preliminary examination of the
defendant
THAT the said prosecuting witness.
Harriet AveriN, upon whom the said
crime of rape was alleged to have
been committed failed to appear AMI
testify at said examination; but
written statement signed by one Far-
ry Averiii 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 Os~na. That no Legal
testimony WAS given showing that
Harry Ayeriil, who signed said state
me1t. was the same person as Harriet
Averi!l mentioned in said complaint
and upon whom the said rape was 4
legged to have been committed. That
no legal evidence was introduced by
the State 1T said examination. which
is shown by a certified copy Of the tes-
timOnv taken at said examina ton, and
which is hereunto annexed and made
part Of this petition. That there
was no proof that the crime of raDe
or anv other offense had been commit
ted on Harriet Averill, or upon Harry
Averill. or that there was sufficient
cause to believe tho said Osuna guilty
of committing public offense."
1t appears from the record that
OSuna was arrested and brought be-
fore the Justice CT 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, ~
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 a witness and tes-
titled that when he brought the de-
PENDANT to Hawthorne that the CON-
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 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
District Attorney offered in evidence
what purported to be a written state
ment of the facts of the alleged raoe
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 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 -
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, over
defendants objection, that he was a
witness to the written statement and
heard the complainant detail the facrs
therein stated: also. that at noon OF
the same day that the said Harriet
Averill had come to his Office anu
had made the same charges against
the defendant to him. and, that at her
solicitation, he dictated telegram II
her mother. who was then in San
Francisco, relative to the assault anil
requesting her to come home at once
A COPY of this telegram was offerei
and admitted in evidence over the &c
| PENDANTS objection.
DR.. F. c. Pache, a physician resi1
| ing at Hawthorne. was also permittej
to testify, over defendants objection
that at the time Of making an exam
ination of the person Of the corn
plainant some days after the alleged
offense was committed she informed
him that the defendant had made
| criminal assault uDOn her and wit