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Ex Parte Nagel

October 1917

IN THE MATTER OF THE APPLICATION OF W. A. NAGEL FOR A WRIT OF HABEAS CORPUS.


Mack & Green, for Petitioner.

J. H. White, District Attorney, and Leonard B. Fowler, for Respondent.

By the Court, McCarran, C. J.:

This is an original proceeding in habeas corpus.

The petitioner, W. A. Nagel, is held on commitment issuing out of the justice's court of Rawhide township, Mineral County, State of Nevada, by F. B. Balzar, sheriff of said county. Said commitment is as follows:

“To the Sheriff of the County of Mineral: An order having been made this day by me that W. A. Nagel be held to answer on the charge of murder, committed in said township and county, on or about the 26th day of August, 1917, you are commanded to receive him in your custody and detain him until he is legally discharged, and to be committed to the custody of the sheriff of said county. Dated this 14th day of September. Alexander Proskey, Justice of the Peace of Said Township.”

By these proceedings petitioner seeks to be admitted to bail. Article 1, section 7, of the constitution provides:

[41 Nev. 86, Page 87]

“All persons shall be bailable by sufficient sureties, unless for capital offenses when the proof is evident or the presumption great.”

In furtherance of his application for release on bail, petitioner filed in this court a transcript of the proceedings before the committing magistrate in Rawhide township. Petitioner relies entirely upon this transcript, and contends that this transcript discloses a lack of evident proof and the absence of great presumption. In view of the fact that defendant must appear for trial before a jury in the district court, it might be improper for this tribunal to pass in detail upon the weight or conclusiveness of the evidence as set forth in the record of the committing magistrate. Any comment which we may deem necessary to make here is not to be regarded as passing upon the conclusiveness of the evidence as it is before us in the record.

The party deceased, whose death petitioner is accused of producing, appears to have made a number of statements immediately prior to her death as to the cause of her injuries and as to the parties who produced them. Several witnesses testified that the deceased stated that her injuries had been received at the hands of a Mrs. Rose. In the testimony of the witness Mabel Rollins we find the following:

“Q. Will you state, as near as you can remember, the exact words used by Mrs. Kelly, in answer to Mrs. Flynn's inquiry? A. She said Mrs. Byrd—who, every time after she named her, she called her Mrs. Rose—she said that Mrs. Byrd hit her with a cleaver, and Mr. Nagel said, ‘Go to it.'”

From the testimony of the witness H. W. Guinan it appears that, in a conversation had with the witness the day following that on which the deceased received the injuries that caused her death, petitioner made the following voluntary statement:

“Q. Have you had more than one conversation with Mr. Nagel after this affair? A. I did.

“Q. You can state when and where, and what was said. A. The next conversation ...


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