In re Kelly

• Citation: 83 P. 223,28 Nev. 491
• Decision Date: 18 December 1905
• Docket Number: 1,688.
• Parties: In re KELLY.
• Court: Supreme Court of Nevada

83 P. 223

28 Nev. 491

In re KELLY.

No. 1,688.

Supreme Court of Nevada

December 18, 1905

Application by Frank P. Kelly, on behalf of H. Osuna, for a writ of habeas corpus. Writ dismissed.

Wm Woodburn, for petitioner.

Jas. G Sweeney, Atty. Gen., for the State.

NORCROSS J.

Upon the application of Frank P. Kelly, in behalf of H. Osuna, a writ of habeas corpus was issued returnable before this court. It 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 peace of Hawthorne township, to answer the charge of rape committed upon one Harriett Averill on the night of the 3d 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 following specific charges are made respecting the testimony introduced upon the preliminary examination of the defendant: "That the said prosecuting witness, Harriett Averill, upon whom the said crime of rape was alleged to have been committed, failed to appear and testify at said examination, but a written statement, signed by one Harry Averill, and attested by two witnesses, 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 attorney of the said Osuna; that no legal testimony was given showing that Harry Averill, who signed said statement, was the same person as Harriett Averill mentioned in said complaint, and upon whom the said rape was alleged 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 testimony 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 rape, or any other offense, had been committed on Harriett Averill or upon Harry Averill, or that there was sufficient cause to believe the said Osuna guilty of committing a public offense." It appears from the record that Osuna was arrested and brought before the justice of the peace at Hawthorne on the 6th day 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 examination was proceeded with. It appears that the complaining witness was not present, and her name was called at the door without response. The deputy sheriff, A. N. Jones, was then called and sworn as a witness, and testified that, when he brought the defendant to Hawthorne, the complainant and her mother accompanied them. Upon being asked, "Where is Harry Averill now?" answered, "I think she has gone." The absence of this important witness, who is called in the testimony both as Harriett 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 Harriett Averill, the District Attorney offered in evidence what purported to be a written statement of the facts of the alleged rape, signed by the said Harriett Averill on the evening of the 4th of October, in the presence of witnesses, and declared in their presence to be a true statement of the facts of the alleged crime. This written statement was admitted in evidence over the objection of the defendant's attorney. A witness to this written statement, Robert A. Lovegrove, farmer, in charge of the Walker Lake Indian Reservation, was permitted, over defendant's objection, to testify that he had written this statement for the complainant as she detailed the facts, and that he read the same over to 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, a telegraph operator, residing at the place where the crime is alleged to have been committed, was also permitted to testify, over defendant's objection, that he was a witness to this written statement, and heard the complainant detail the facts therein stated; also, that at noon of the same day the said Harriett Averill had come to his office and had made the same charge against the defendant to him, and that at her solicitation he dictated a telegram to her mother, who was then in San Francisco, relative to the assault, and requesting her to come home at once. A copy of this telegram was offered, and admitted in evidence over defendant's objection. Dr. F. C. Pache, a physician residing at Hawthorne, was also permitted to testify, over defendant's objection, that at the time of making an examination of the person of the complainant, some days after the alleged offense was committed, she informed him that the defendant had made a criminal assault upon her, and with violence accomplished his purpose.

The position taken by counsel for the petitioner that these statements of the complainant were made at a time too remote to form a part of the res gestae, were hearsay, and for that reason were inadmissible, must be sustained. State v Campbell, 20 Nev. 126, 17 P. 620. It appears, however, from the record that after the complainant had signed the written statement, the witness Lovegrove called in the defendant, and that the witness read the statement over to him; that at the same time the witness warned the complainant that it was a serious charge she was making, and that she had better be careful what she said; that she said it was true; that he then told the defendant that he would place him under arrest, to appear before a court to answer the charge; that he asked the defendant what he had to say to the charge, and that the defendant said he "would answer before a court, or when it was time to make them." This portion of the testimony of the witness does not seem to have been considered by counsel upon either side in the presentation of this case, as standing in a different position from the testimony relative to the statements of the complainant heretofore referred to, made without the presence of the defendant. We think, however, it presents a question worthy of careful consideration of court and counsel, but, as it has not been presented in...