Ernest Cox v. Harold J. Cardwell, Warden

O’SULLIVAN, Senior Circuit Judge.

We consider the appeal of Harold J. Cardwell, Warden of the Ohio State Penitentiary, from an order of the United States District Court for the Southern District of Ohio, directing that appellee Cox be given a new trial in the Court of Common Pleas of Greene County, Ohio. There, on March 1, 1966, a jury had convicted him of armed robbery.

The prosecution evidence at trial was that at 8:30 in the evening of November 10, 1965, a small store located in Beaver Creek Township, Ohio, was held up by two men. The clerk on duty at the time identified appellee Ernest Cox…