R. M. Hardy, for Petitioner.
Geo. B. Thatcher, Attorney-General, and J. A. Sanders, District Attorney, for Respondent.
By the Court, Norcross, C. J.:
This is an original proceeding in habeas corpus. By stipulation of respective counsel the matter was heard upon the petition and the demurrer thereto. The petition alleges that petitioner is unlawfully held and restrained of his liberty by the sheriff of Humboldt County. Upon
a commitment of the justice of the peace of Lovelock township, petitioner was held to answer to the crime of an assault with a deadly weapon with intent to do bodily injury to one P. H. Wolf, alleged to have been committed on the 17th day of April, 1916. It is the contention of petitioner that he was held to answer without reasonable or probable cause.
From the petition it appears that prior to the filing of the petition in this court a similar petition was presented to the Sixth judicial district court in and for Humboldt County on the 8th day of May, 1916, and after hearing upon the return to the writ, the application for petitioner's discharge was denied.
It is conceded by counsel for petitioner that the direct testimony of the witness for the state, Mrs. A. M. Anderson, taken alone was sufficient to establish reasonable and probable cause. It is contended, however, that the testimony of this witness was so modified upon cross-examination as to destroy the probative effect of her testimony given upon direct examination.
In Re Kelly, 28 Nev. 499, 83 Pac. 226, this court said:
We are not called upon on this hearing to pass upon the sufficiency of this evidence to warrant the conviction of the defendant, and upon that question express no opinion. In this connection it is proper to observe that a magistrate, in holding a defendant to answer for a crime, is not required to have submitted evidence sufficient to establish the guilt of the person charged beyond a reasonable doubt. As was said in a recent decision (In Re Mitchell, 1 Cal. App. 396, 82 Pac. 347): In order to hold defendant and put him on his trial, the committing magistrate is not required to find evidence sufficient to warrant a conviction. All that is required is that there be a sufficient legal evidence to make it appear that a public offense has been committed, and there is sufficient cause to believe the defendant guilty thereof.'
See, also, In Re Oxley and Mulvaney, 38 Nev. 385, 149 Pac. 992.
1. The attorney-general in his oral argument upon the hearing of this case stated, in effect, that in his opinion the evidence taken as a whole would not warrant a jury in reaching a conclusion of the guilt of the petitioner beyond a reasonable doubt. However, the correctness of his contention must be conceded that such a degree of proof is not required upon a preliminary examination to warrant the magistrate in holding a defendant to answer. (In Re Oxley and Mulvaney, supra; Ex Parte Heacock, 8 Cal. App. 420, 97 Pac. 77.)
2, 3. While it is said in Cyc.: The object of cross-examination is to weaken or disprove the case of one's adversary (40 Cyc. 2477, C)it is the province of the magistrate to consider the testimony as a whole and to give it such weight as in his judgment he thinks it is entitled to. It was the province of the magistrate and not the province of this court to determine to what extent the direct evidence of the witness was weakened or modified by the cross-examination. We know of no authorities holding, and we have not been cited to any such, as an invariable rule that the testimony of the witness given upon cross-examination must be accepted. Where modifying, varying, or conflicting with the testimony given upon direct examination it is the province of the magistrate, the court, or the jury, as the case may be, to determine the truth of the witness's testimony from the entire examination.
It cannot be said, we think, that the testimony of the witness, Mrs. A. M. Anderson, is not without some corroboration. From the transcript of the proceedings we quote the following ...