R. M. Hardy, for Petitioners.
J. E. Powell, District Attorney, and E. T. Patrick, Deputy Attorney-General, for Respondent.
By the Court, McCarran, J.:
This is an original proceeding in habeas corpus. By the petition it appears that one Phil A. Williams and one John E. Lathrop were charged before the justice of the peace of Lake township, Humboldt County, with the crime of larceny from the person under circumstances not amounting to robbery. A preliminary examination was held, and the testimony in its entirety, as given and had at that examination, is made a part of the petition here.
The sole ground upon which petitioner relies for the release of the parties restrained of their liberty is that the evidence fails to establish reasonable or probable cause for the holding or detaining or restraining of the parties. In the recent case of Ex Parte Molino, 39 Nev. 360, 157 Pac. 1012, we said:
It is not required upon a preliminary examination, in order to warrant a magistrate in holding the accused to answer, that the evidence taken as a whole be sufficient to warrant a jury in reaching a conclusion of the guilt of the accused beyond a reasonable doubt.
In the matter at bar, however, we find nothing, even in the strongest evidence produced for the state, upon which reasonable or probable cause could be supported. The testimony of the complaining witness is perhaps the most direct; and yet at no place in his evidence do we find anything that would warrant the holding of the parties whose release is sought.
It appears that on the night on which the alleged offense was committed, the complaining witness had been drinking to a considerable extent. At the solicitation of Lathrop he went to the saloon conducted by the petitioner Williams. It appears that there they entered into a game of matching coin, and some money was exchanged. While there, the complaining witness exchanged coats with Lathrop; and his testimony in that respect is as follows:
Well, he said, Dutch, let's change coats,' and he tried to pull it off, but I let him have my coat, and at the same time he took my coat and put it on, and he was quick; he flopped this pocketbook over the bar, but I saw him.
Q. And where was that pocketbook before he flopped it over the bar? A. In my coat.
Q. In your right-hand pocket, the one you have previously described? A. Yes; I don't know whether the money lost out by being flopped over the bar or not, but I said to Williams, You come through with this pocketbook right away,' and he reached down and gave me this pocketbook back, and I put it in my pocket, and I didn't look at it, but I think I went over to Charlie Arobio's.
Q. Did you examine the pocketbook after the defendant Phil Williams handed it back to you? A. No.
Q. About how long was it after the defendant Lathrop tossed it over the bar before the defendant Phil Williams handed you back the pocketbook? A. Oh, maybe I could count to five or maybe to ten. He dropped it over and I ...