United States ex rel. Smith v. Brierly

OPINION OF THE COURT

HASTIE, Circuit Judge.

This is an appeal by the Commonwealth of Pennsylvania from a judgment of a district court granting habeas corpus to Frank Smith, a prisoner confined pursuant to a state conviction of felony murder, without prejudice to the right of the state to retry him.

At Smith’s trial it was shown and not denied that he and two confederates, who were tried separately, had committed an armed robbery of a taproom in the course of which they herded the patrons down steps into a cellar. There it was discovered that one of the patrons was bleeding from head injuries,…