CARRICO, Justice.
This writ of error, awarded W. K. Cunningham, Jr., Superintendent of the Virginia State Penitentiary, challenges the ruling of the trial court, rendered in a habeas corpus proceeding, that Louis Norwood Smith was being detained by the Superintendent without lawful authority.
On April 4, 1960, Smith was indicted for incest by the Grand Jury of the City of Hampton. On the same date, he was also indicted by the same grand jury for rape.
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