United States of America Ex Rel. Malachi Beard, Jr. v. Alfred T. Rundle, Supt.

OPINION OF THE COURT

ALDISERT, Circuit Judge.

Finding that defendant was indigent following conviction, and that he did not know, and was not told by his privately retained attorney, of the right to ap pointed counsel on appeal, the district court granted a writ of habeas corpus. The Commonwealth has appealed, urging reversal on the basis of our recent decision in United States ex rel. O’Brien v. Maroney, 423 F.2d 865 (3 Cir.1970).

The district court’s decision, which antedated our opinion in O’Brien, relied on United States ex rel. Smith v. McMann, 417 F.2d 648, 654 (2 Cir.1969), in which the…