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UNITED STATES v. BRIERLY

No. 16652.

384 F.2d 992 (1967)

UNITED STATES of America, ex rel. Frank SMITH v. Joseph R. BRIERLY, Superintendent, State Correctional Institution, Philadelphia, Pennsylvania 19130, Commonwealth of Pennsylvania, Appellant.

United States Court of Appeals Third Circuit.

Decided November 9, 1967.

Attorney(s) appearing for the Case

Benjamin H. Levintow, Asst. Dist. Atty., Philadelphia, Pa. (Alan J. Davis, Asst. Dist. Atty., Chief, Appeals Division, Richard A. Sprague, First Asst. Dist. Atty., Arlen Specter, Dist. Atty., on the brief), for appellant.

Robert J. Sugarman, Dechert, Price & Rhoads, Philadelphia, Pa., for appellee.

Before McLAUGHLIN, HASTIE and FORMAN, Circuit Judges.

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...

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