A complaint was filed in the county court of Sheri *735 dаn County, Nebraska, charging the relator, Vincent Skinner, with manslaughter in the death of Sophie Plenty Wounds. A preliminary hearing was held and the relator ordered committed to the county jail until discharged according to law or until bail in the amount of $5,000 was furnished.
The relator then commenced this action to obtаin a writ of habeas corpus upon the ground that his imprisonment was unlawful because the evidencе produced at the ■ preliminary hearing was not sufficient to sustain the order of the county court. The trial court found that the detention of the relator was unlawful and ordered that he be discharged from custody. The respondent, who is the sheriff of Sheridan County, Nebraska, has appealed from that оrder.
A transcript of the evidence introduced at the preliminary hearing was attached to and made a part of the petition. This evidence tends to show that Sophie Plenty Wounds appеared to be in good health on April 14, 1964; that she spent the night of April 14, 1964, at the relator’s house in Gordon, Nebraska, on his bed; that the relator and Sophie Plenty Wounds were in the relator’s house from about 7 р. m. on April 14, 1964, until about 8 a. m. on April 15, 1964; that on the morning of April 15, 1964, Sophie Plenty Wounds was found lying on the floor at the sidе of the bed in the relator’s house; that she was unconscious and had no clothes on; that she had severe bruises upon her arms, legs, and mouth; that the right side of her face was blue and swollen and her right eyе was closed; that the bruise mark on her face extended over to the side of her head neаr the temple; that she was carried to an automobile and taken to the Pine Ridge Hospital; that she did not recover consciousness; and that on April 22, 1964, she was, transferred to the Rapid City Hospital. Over the objection of the relator, a certified copy of a “Death Register” or deаth certificate was received in evidence. The certificate recited that Sophie Plenty Wounds died at *736 Rapid City, South Dakota, on April 23, 1964, as a result of head injuries.
The purpose of a рreliminary hearing is to ascertain whether there is evidence which justifies holding an accused for trial. Before an accused can be held to answer a charge upon information, he is entitled to a preliminary examination and there must be proof and a judicial determination that the оffense has been committed and that there is probable cause to believe that the aсcused committed the offense. Carson v. State,
A preliminary hearing is not a prosecution or trial. Evidence which will justify a finding by a committing magistrate that probable cause exists for the detention of a defendant need not be sufficient to sustain a verdict of guilty or show guilt beyond a reasonable doubt. Stаte ex rel. Pribyl v. Frank,
In a habeas corpus proceeding instituted for the purpose of testing the suffiсiency of the evidence produced at a preliminary hearing, the court will not weigh the evidеnce but will only inquire as to' the existence of evidence to sustain the charge. Neudeck v. Buettоw,
The relator in this case was charged with manslaughter. Manslaughter is the unlawful killing of anоther, either upon a sudden quarrel, or unintentionally, while in the commission of some unlawful act. § 28-403, R. R. S. 1943. It may cоnsist of the unintentional killing of a person, without malice, resulting from an unlawful assault and battery that in itself is not of a character or intended to cause death. Fisher v. State,
*737 ' In this case the relator was charged with cáusing the death of Sophie Plenty Wounds from injuries resulting from an unlawful assault and battery upon her. Thе evidence is. sufficient to sustain a finding that an assault and battery was committed upon Sophie Plenty Wоunds and that there is probable cause to believe that the. relator is guilty of that offense. There is no evidence as to the death or cause of death of Sophie Plenty Wounds other than thе certified copy of the South Dakota death register.
The rule in this state is that a death certificate is not competent evidence of the cause of death in a controversy where the cause of death is a material issue. Vanderheiden v. State,
Except for the death certificate, there was no evidence to establish thе death or cause .of death of Sophie Plenty Wounds. Thus, the evidence was not sufficient to sustain a finding that manslaughter has been committed and that the relator should be held for trial on that offense.
The preliminary hearing which has been held is not a bar to the filing of a new complaint and a hearing upon the new complaint. See, Fugate v. Ronin,
The judgment of the district court is affirmed.
Affirmed.