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STATE OF MONTANA v. TOMICH

No. 19021.

332 F.2d 987 (1964)

The STATE OF MONTANA, By and Through the Attorney General of the State of Montana, Forrest H. Anderson, Edward Ellsworth, Warden of the Montana State Prison, Respondents and Appellants, v. John J. TOMICH, Petitioner and Appellee.

United States Court of Appeals Ninth Circuit.

Rehearing Denied August 4, 1964.

Attorney(s) appearing for the Case

Forrest H. Anderson, Atty. Gen. of Montana, and Donald A. Garrity, Asst. Atty. Gen. of Montana, Helena, Mont., Donald J. Beighle, Powell County Atty., Deer Lodge, Mont., for appellants.

R. Lewis Brown, Jr., Butte, Mont., for appellee.

Before POPE and HAMLEY, Circuit Judges, and KILKENNY, District Judge.

KILKENNY, District Judge:

At the conclusion of a full dress hearing, in a habeas corpus proceeding, the trial court ordered that the appellee be discharged from the custody of the Warden of the Montana State Prison, unless the State of Montana within ten days from that date granted appellee a new trial. From that order, the appellants prosecute this appeal.

In the court below, the appellee challenged the validity of his confinement on two grounds:

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