Powell v. Wiman Opinion

    IN THE

F r c f  f

United States Court of Appeals
FOR THE FIFTH CIRCUIT

N o .  1 8 3 6 8

WILLIAM K. POWELL,
Appellant,

versus

MARTIN J. WIMAN, Warden of Kilby Prison, 
Montgomery, Alabama, ET AL.,

Appellees.

Appeal from  the United States District Court for the 
Middle District o f Alabama.

(February 24, 1961.)

Before RIVES, BROWN and WISDOM, Circuit Judges.

RIVES, Circuit Judge: The Supreme Court vacated the 
judgment of this Court on former appeal,1 and remanded 
this case to the district court “for a full hearing.”2 The

1 That judgment denied leave to appeal in forma pauperis 
from the judgment of the district court denying Powell’s 
application for habeas corpus.
2 E x  Parte Powell, 1959, 361 U.S. 34.



2 Powell v. Wiman, et al.

district court at first construed the order of the Supreme 
Court to direct a full hearing on Powell’s motion for 
leave to appeal from the earlier judgment of the district 
court, but later granted Powell’s motion for a full hear­
ing on his application for habeas corpus.

Powell is imprisoned under a ten-year sentence im­
posed upon his conviction in the Circuit Court of Jefferson 
County, Alabama, of the offense of robbery, a capital 
crime under the laws of Alabama.3 Powell appealed 
pro se from that conviction, but no transcript of the 
evidence was filed and the judgment of conviction was 
affirmed by the Court of Appeals of Alabama in an 
unpublished per curiam decision.4 The Supreme Court 
of the United States denied Powell’s motion for leave 
to file a petition for writ of habeas corpus.5 * The Ala­
bama Court of Appeals denied his petition for writ of 
error coram nobis.® The Superior Court denied certio­
rari.7 Powell’s application for habeas corpus was denied 
without a hearing by the Circuit Court of Montgomery 
County, Alabama, and two earlier applications were simi­
larly denied by the federal district court. Thus, the fact 
accords with the implication of the Supreme Court’s 
order, that is, Powell has sufficiently exhausted the 
remedies available in the State courts.8

Following the Supreme Court’s order of remand, the 
district court, after a full and adequate hearing, entered

3 Alabama Code of 1940, Title 14, Section 415.
4 See E x  Parte Powell, Ala. App. 1958, 102 So.2d 923,
925.
B Powell v. Burford, 1957, 355 U.S. 888.
« E x  Parte Powell, Ala.App. 1958, 102 So. 2d 923.
7 Powell v. Alabama, 1958, 358 U.S. 850.
3 See 28 U.S.C.A. §2254.



Powell v. Wiman, et al. 3

a memorandum opinion finding adversely to Powell on 
each of his many contentions, and denied his petition 
for habeas corpus. From that judgment the present 
appeal is prosecuted. Of the many contentions presented 
on this appeal, it is necessary to consider only two:

I. Powell was not represented by counsel on 
his. arraignment for the capital offense of robbery.

II. The State suppressed vital evidence upon 
Powell’s trial.

As to the first contention, the district court found 
that Powell was arraigned upon the indictment and 
entered a plea of not guilty; that he was not then 
represented by counsel; that on the same day and during 
the same court appearance and shortly after Powell 
entered a formal plea of not guilty, the court appointed 
two attorneys to represent Powell; that, thereafter, the 
prosecuting attorney agreed that the arraignment be 
set aside if Powell’s court-appointed attorneys so re­
quested ;̂ that Powell and his attorneys decided against 
such action, and elected instead to conduct his trial on 
the plea of not guilty without pleading “not guilty by 
reason of insanity.” After carefully reading and study­
ing the record and exhibits, we agree with those fact 
findings of the district court.

While the present appeal has been pending, the Su­
preme Court of Alabama has ruled upon another capital 
case presenting much the same question of law that is 
posed by those facts.9 In that case the defendant was 
not represented by counsel at his arraignment and for

9 E x  Parte Hamilton, Ala.. 1960, 122 So. 2d 602.



4 Powell v. Wiman, et al.

three days thereafter. Upon trial, he was convicted 
and sentenced to death. The Supreme Court of Alabama, 
upon a finding that the defendant was not prejudiced 
by the late appointment of counsel, denied him leave 
to file in the trial court an application for writ of error 
coram nobis. On the 9th day of January 1961, the 
Supreme Court of the United States granted „ certiorari 
to review that decision. Hamilton v. Alabama, 1961,
No. 640.........U.S........... ,2 9  L.W.3203. We do not await the
decision of the Supreme Court in that case, and refrain 
from expressing any view on the question of law, be- 
cause the present case can and should be decided upon 
Powell’s other contention to the effect that the State 
suppressed vital evidence upon his trial. Consideration 
of that issue requires a detailed examination of the facts, 
as disclosed both by the transcript of the evidence upon 
Powell’s trial for robbery, now made available to an 
appellate court for the first time, and by the full hearing 
on Powell’s petition for habeas corpus conducted by the 
district court.

On Sunday night, September 25, 1955, Mr. L. O. Brown 
closed his ice cream store in Birmingham, Alabama, at 
a late hour. He and his wife, with about $25.00 in 
currency from the day’s receipts, arrived home after 
11:00 P.M. As their automobile stopped at their garage 
and Mrs. Brown started to get out, a man with a pistol 
approached the driver’s side and ordered Brown to have 
his wife get back in the car; Mrs. Brown, of course, 
complied. Brown later identified that man as one James 
Hatt, and it is now established without dispute that the 
robber was James Hatt. Brown offered Hatt the money



Powell v. Wiman, et al. 5

which was in a cloth sack on the seat beside him, but 
Hatt at that time declined and ordered him instead to 
drive out of town. Hatt got in the back seat and held 
the pistol on Brown, directing him where to drive, first 
16 or 17 miles down the Highway toward Montgomery, 
then turning off on a road that led from the Montgomery 
Highway to the Atlanta Highway, then turning off down 
a little-traveled dirt road for about a hundred yards, 
where Hatt ordered Brown to stop and turn off his lights. 
Hatt took the sack of money and searched the automobile 
for more, but without success. He then took the auto­
mobile keys, made Brown let the air out of the tires, 
ordered him to get back in the car and shut the door, 
and, according to Brown’s testimony on Powell’s criminal 
trial: “He said I am going to watch and if you open
that door the light will come on, and made some state­
ment as to how he could shoot, he had been shooting 
squirrels since he was a boy. And he said after a car 
stops in the highway and I have gotten in it and gone 
you can do what you want to.”

The Browns stayed in their automobile for a “good 
while,” but neither saw nor heard a car stop on the near­
by highway. Finally, they got out, walked to the high­
way, found a telephone, and reported the robbery. The 
Browns did not see Powell at the scene of the crime.

The next scene is at a tourist home in Leeds, Alabama, 
on the night of September 30, 1955, five days after the 
robbery. There B. M. Dinkin, a Deputy Sheriff of 
Jefferson County, and John Pledger, Chief of Police of 
Leeds, arrested Hatt. In the room with Hatt was the



appellant, William K. Powell. Under the mattress of 
the bed the officers found a pistol with a shoulder 
holster, some cartridges, a “slapjack,” a pair of rubber 
gloves, and a mask. Upon Powell’s criminal trial, Hatt 
admitted that these articles belonged to him.

Powell and Hatt were taken to police headquarters in 
Leeds, where they were questioned jointly by Officers 
Pledger and Dinkin and by the Mayor of Leeds. Hatt 
admitted having committed the armed robbery, but 
Powell has made no confession either then or at any 
subsequent time. Upon their arrival in Birmingham, 
Hatt was taken to the office of the prosecuting attorney, 
where he gave a detailed written statement. In due 
course, Hatt and Powell were separately indicted for 
the offense of the armed robbery of L. O. Brown.

Powell was tried on January 25 and 26, 1956 on his 
plea of not guilty, and, as has been stated, was con­
victed and sentenced to ten years imprisonment. Hatt 
pleaded guilty on December 14, 1956 to the lesser of­
fense of larceny from the person, and, on the recom­
mendation of the prosecuting attorney, was sentenced 
to five years imprisonment.10

10 The inference is inescapable that Hatt received favorable 
consideration because of his testimony against Powell. The 
State prosecuting attorney testified in the habeas corpus 
hearing before the district court:
“Q. Now, is it your testimony that Hatt did or did not 

receive lighter treatment in Birmingham because of his 
testimony against Powell?

“A. I—I— I recommended to the court that he be imprisoned 
in the penitentiary for a term of five years.

“Q. And what did the court do; did he follow your recom­
mendation ?

“A. Yes.”

6 Powell v. Wiman, et al.



Powell v. Wiman, et al. 7

An Alabama statute provides that:

Ҥ307. Testimony of accom plices; must be 
corroborated  to authorize conviction o f fe lon y .—
A conviction of felony cannot be had on the 
testimony of an accomplice, unless corroborated 
by other evidence tending to connect the defend­
ant with the commission of the offense; and such 
corroborative evidence, if it merely shows the 
commission of the offense or the circumstances 
thereof, is not sufficient.”11

Corroborative evidence to the testimony of Hatt “tend­
ing to connect the defendant with the commission of the 
offense” consisted of testimony of Powell’s association 
with Hatt both before and after the robbery and Mr. 
Brown’s testimony that Powell had been employed by 
him for about six weeks during the Summer of 1955. 
Clearly, Powell could not have been convicted without 
Hatt’s testimony. Powell’s conviction or acquittal really 
turned upon whether Hatt was a credible witness.

In Alabama, “when a party places a witness on the 
stand, he thereby vouches for his credibility.”12 The 
State called Hatt as a witness against Powell after Hatt 
had pleaded not guilty by reason of insanity. Powell’s 
court-appointed attorneys, conscientious, able and dili­
gent, but very inexperienced—this was their first jury 
trial—attempted repeatedly to bring out Hatt’s mental 
condition on cross-examination. To this, the prosecution 
vigorously objected.

11 Code of Alabama 1940, Title 15, §307.
12 Equitable Life Assurance Society of U.S. v. Welch, Ala.,
1940, 195 So. 554, 559. See also, Oates v. Glover, Ala.,
1934, 154 So. 786, 787; Jones v. State, Ala., 1897, 22 So.
566; 3 Wigmore on Evidence, §898, pp. 386, et seq.



8 Powell v. Wiman, et al.

“Q. James, have you ever received mental treat­
ment?

“A. Yes, sir.
“MR. DEASON [the prosecutor]: Wait a minute, 

we object to that, immaterial, incompetent 
and illegal.

“MR. COLLINS [Defense]: I think it is.
“THE COURT: Yes, I will sustain it in that form.
“MR. DEASON: Yes, sir.
“MR. COLLINS: You sustain the objection, sir?
“THE COURT: Yes.

“Q................ are you also indicted for this crime?
“A. Yes.
“Q. How did you plead to that charge?
“A. Not guitly by reason of insanity.
“MR. COLLINS: Your honor, I would like to

inquire if they plan to go into his past 
psychiatric treatment.

“MR. DEASON: We object to that, this man is 
not on trial, just a witness.

“THE COURT: I sustain.
“MR. COLLINS: It is not material to his credi­

bility, is that right, sir?
“THE COURT: Just ask your question.

“Q. Do you feel that you are mentally capable 
of telling the truth in this case?

“MR. DEASON: Don’t answer that. We ob­
ject to that, if the Court please.

“THE COURT: Yes, sustain.

“MR. COLLINS: James, have you had a psy­
chiatric examination since you were arrested 
for this crime?

“MR. DEASON: Object, don’t answer.”



Powell v. Wiman, et al. 9

The State doggedly and successfully opposed every 
effort of the neophyte lawyers to cross examine the 
witness as to his insanity. And we might not criticize 
the State for so doing if it had not then had further 
information, not available to the defendant or his at­
torneys, which adversely reflected on Hatt’s sanity. 
The State prosecutor had received a letter dated 
October 12, 1955, from a Michigan attorney and had 
other information to the effect that Hatt had been 
confined in mental institutions in three different 
states.13 Hatt’s mental condition was a crucial issue. 
Evidence of Hatt’s insanity, if not sufficient to establish 
his incompetence as a witness, would have gone to the 
weight and credibility of his testimony.14 The success­
ful effort of the State prosecuting attorney to keep 
from the jury what he knew to be substantial evidence 
of Hatt’s insanity is not consistent with the high 
standard applicable to state prosecuting attorneys, as 
well as to United States Attorneys:

“The United States Attorney is the represen­
tative not of an ordinary party to a controversy, 
but of a sovereignty whose obligation to govern 
impartially is as compelling as its obligation to 
govern at all; and whose interest, therefore, in a 
criminal prosecution is not that it shall win a 
case, but that justice shall be done. As such, 
he is in a peculiar and very definite sense the 
servant of the law, the twofold aim of which is
13 That there was a real question as to H att’s mental con­
dition is shown by the fact that the month after Powell’s 
conviction Hatt was sent to the Alabama Insane Hospital 
for an examination.
14 Redwine v. State, Ala., 1952, 61 So.2d 724, 727; Garrett 
v. State, Ala., 1958, 105 So. 2d 541, 547; Hutcherson v. State, 
Ala.App., 1958, 108 So. 2d 177, 178.



10 Powell v. Wiman, et al.

that guilt shall not escape or innocence suffer.
He may prosecute with earnestness and vigor— 
indeed, he should do so. But, while he may 
strike hard blows, he is not at liberty to strike 
foul ones. It is as much his duty to refrain 
from improper methods calculated to produce 
a wrongful conviction as it is to use every 
legitimate means to bring about a just one.”15

The evidence goes further, and shows that the State 
prosecuting attorney permitted Hatt to testify without 
correction to material facts directly contrary to the 
written statement which the attorney had previously 
taken from Hatt.

Upon cross-examination by Powell’s counsel, Hatt 
testified:

“Q. (BY MR. COLLINS:) Now, Jam es, I 
believe you said you came to Leeds, Ala­
bama, with the defendant, you weren’t 
exactly certain when, Friday, Saturday or 
Sunday, is that right?

“A. I can’t say when.
“Q. But, you remember going to Leeds, Ala­

bama, with the defendant?
“A. Yes.
“Q. But, you don’t know whether it was Sun­

day or two days before then or two days 
after that?

“A. Well, it was before Sunday.
“Q. It was before Sunday?
“A. Yes.
“Q. Probably Saturday?
“A. Saturday or Friday or somewhere.
15 Berger v. United States, 1935, 295 U.S. 78, 88.



Powell v. Wiman, et al. 11

“Q. Where did you go then, where did you 
stay, you probably located yourself some 
place?

“A. In the rooming house.
“Q. You went to the rooming house?
“A. Yes.
“Q. Friday or Saturday with the defendant 

Powell?
“A. Yes.
“Q. And you didn’t know what time, you didn’t 

know whether it was day or night?
“A. No, I don’t remember what it was.
“Q. And then you and the defendant, you 

stated, went out and drove by Mr. Brown’s 
house, is that correct?

“A. Yes, the Sunday before the robbery I 
believe it was.

“Q. After you had been in town a couple of 
(sic) three days?

“A. Yes.”

The State did not disclose that it had strong reason
to believe that testimony to be untrue. Yet the State
then had in its possession a written statement from
Hatt that on the Friday and Saturday before he robbed
L. O. Brown on Sunday he had committed two other
armed robberies, the one on Friday in Tampa, Florida,16

18 H att’s statement described the Tampa robbery as follows: 
“Q. Did you pull any robberies in Tampa before you left? 
“A. Yes.
“Q. Where?
“A. We got $6 off a taxi-cab driver.
“Q. Where was that?
“A. In Tampa. I am pretty sure it was in Tampa.
“Q. Do you know what part of the city that was?
“A. No, I don’t  even know that city.
“Q. Do you remember when that was with reference to the 

present time, how many days ago?
“A. Week ago last Friday. Today is Friday, isn’t  it?
“Q. Yes.



12 Powell v. Wiman, et al.

and the other on Saturday in Montgomery, Alabama.17 
According to Hatt’s statement, he met Powell for the

“A. Week ago today.
‘‘Q. You got $6 from him?
“A. Yes.
“Q. How did you get the money?
“A. Well, Bill, he took me— he told me to go to such and 

such a corner where he knew— he knew that town, and 
I didn’t, and he said he would he there waiting for me, 
so, I got a cab and told him to take me to that corner, 
and I was pretty tight right then. I couldn’t  hardly 
walk straight. I called the bartender, and had the 
bartender call, and the cab came, and I got there, and 
he was there only just a minute, and once I pulled the 
gun on him—

“Q. Where was Bill when you pulled the gun on him?
“A. He was parked right behind us about 15 yards, I guess, 

parked in a car.
“Q. After you pulled this gun on the taxi-cab driver and 

got the money from him, where did you go?
“A. We headed— Bill went and picked up his clothes and 

headed out of town. We headed out of town.”
17 H att’s statement described the Montgomery robbery as
follows:
“Q. Where was that?
“A. Montgomery, I believe.
“Q. What did you get there?
“A. $12.
“Q. Who did you rob there?
“A. Cab driver.
“Q. When was that?
"A. Saturday night, I believe it was.
“Q. That was the night before you came into Birmingham?
“A. Yes, sir.
“Q. Where was he when you got the money?
“A. Well, we— he said, ‘get a cab.’
”Q. Who said that?
“A. Bill Powell.
“Q. All right.
“A. He said— I used his suitcase, mostly to make it look 

like I was traveling on a bus and was a veteran going 
to the Veterans Hospital, and he drove out there and 
picked out a place back off the road a little ways, and 
I took him— I told him to take me to the Veterans 
Hospital, and when he turned around the corner to take 
me to the hospital, I told him to drive straight around 
into a little grove like. There was trees around, kind 
of like a city dump.

“Q. Close to the Veterans Hospital?
“A. Yes, back of it.
“Q. That was last Saturday night?
“A. Yes.



Powell v. Wiman, et al. 13

first time in Tampa just before the Tampa robbery, and 
Powell was an accomplice in the Tampa robbery and 
in the Montgomery robbery. Hatt’s statement as to 
Powell’s participation in those robberies was, of 
course, hearsay as against Powell, and would not in 
any event have been admissible against Powell on his 
prosecution for the robbery of L. O. Brown. However, 
when Hatt testified that he had been with Powell at 
Leeds, Alabama, on Friday or Saturday, or for two or 
three days before the robbery of L. O. Brown on Sunday 
the State had good reason to believe that that testimony 
was false, and it could not allow it to go uncorrected.

Further, the State knew that Hatt’s admissions con­
trary to his testimony were admissions of two armed 
robberies which the jury could well have believed to 
have a bearing on Hatt’s credibility. Indeed, Hatt’s 
admissions in the statement as to his activities earlier 
in the week preceding his robbery of L. O. Brown re­
flected on his credibility to the n’th degree. According 
to his statement in the possession of the State prosecut­
ing attorney, Hatt admitted the possession of three 
pistols which he had stolen from a gun store in West 
Palm Beach, Florida, “a week ago last Tuesday.” He

“Q. Then, when you got out there and stopped, what did 
you do?

“A. I told him to strip his clothes off so I could have time 
to walk away.

“Q. Did he undress?
“A. He took all but his shoes.
“Q. What did you do with his clothes?
“A. Buried them across the city on the other side of town.
“Q. Do you know about where you buried them?
“A. I don’t  know whether it is— there is a state prison you 

go by, and I don’t know whether it was on this side or 
that side.

“Q. Who was with you when you buried the clothes?
“A. Bill Powell. He covered them up.”



14 Powell v. Wiman, et al.

further admitted that on Wednesday he had held up a 
bartender and a woman customer in West Palm Beach 
and got $33.00 from them. Hatt stated that no one was 
with him on either of those occasions. According to 
Hatt’s statement, he had forced the bartender whom he 
had robbed to drive him in the bartender’s car about 
75 miles on the highway toward Tampa where he “let 
him out on the highway to hitch hike back, and I took 
the car on a ways further and dropped it off.” At 
Tampa, according to the statement, Hatt met Powell, 
whom he said he had never seen before.

To summarize, Hatt’s statement, in the possession of 
the State’s attorney, admitted that during the week 
preceding the robbery of L. O. Brown, Hatt had com­
mitted a burglary, and armed robbery, a kidnapping, and 
the theft of an automobile before meeting Powell, and 
and had committed two other armed robberies with 
the claimed assistance of Powell.

While the State was willing to vouch for Hatt’s 
credibility, it is extremely doubtful whether the jury 
would have agreed if it had been furnished this evi­
dence which remained in the exclusive possession of 
the State. Not only did the State fail to disclose that 
Hatt’s statement contradicted Hatt in a most material 
part of his testimony, and reflected on, if it did not 
indeed destroy, his credibility, but it affirmatively 
represented to the jury that Hatt had told in the 
statement the same story that he told on the witness 
stand.



Powell v. Wiman, et al. 15

“Q. (BY MR. DEASON:) Now, he has asked 
you if you talked to anybody in the solici­
tor’s office. I wil ask you if on the 30th 
day of September, 1955, if you didn’t make 
a complete statement about your activity 
in this robbery down at the solicitor’s 
office, is that correct?

“A. Yes.
“Q. You remember me down there?
“A. No.
“Q. Asking you certain questions and a man 

writing them down?
“A. I can’t say for sure.
“Q. Well, you remember making a statement 

down at the solicitor’s office, is that cor­
rect?

“A. I remember telling my story.
“Q. In other words, you remember telling your 

story the same day you were arrested, 
that is correct, isn’t it?

“A. I can’t say for sure whether it was the 
same day or not.

“Q. Immediately after, shortly after.
“A. Yes, sir.
“Q. And did you tell the same story then that 

you are telling on the witness stand?
“A. Yes.”

Thus the State actually bolstered Hatt’s testimony by 
reference to this statement, while keeping the contents 
of the statement to itself.

Hatt’s full written statement was first disclosed over 
the objection of the State in response to a subpoena 
duces tecum issued by the district court in the present



16 Powell v. Wiman, et al.

hearing. As we have heretofore stated, it does not 
appear that the Alabama Court of Appeals has had an 
opportunity to examine the transcript of evidence in 
Powell’s criminal trial. We make these remarks in 
justice to that Honorable Court. In the course of its 
opinion on Powell’s application for leave to file a writ 
of error coram nobis, the Alabama Court of Appeals 
said: “We are as zealous as anyone that our peniten­
tiaries should confine no one who is innocent.”18 We 
know that that is true. Nothing said in this opinion is 
meant to reflect upon the Court of Appeals of Alabama. 
That Court has had before it practically none of the 
evidence now before this Court.

It nonetheless remains true that, as reluctant as a 
federal court is to interfere with or upset the judg­
ment of a state court, we cannot allow the present 
judgment of conviction to stand. Whether or not any 
one of the instances which we have recited in which the 
State failed to disclose or suppressed evidence going 
to Hatt’s credibility would suffice by itself, the totality 
of all of them, under the circumstances of this case, 
leaves no doubt that Powell’s trial was attended by 
such fundamental unfairness as to amount to a denial 
of due process of law.

“ . . . it is established that a conviction
obtained through use of false evidence, known 
to be such by representatives of the State, 
must fall under the Fourteenth Amendment 
. . . .  The same result obtains when the State,
18 E x  Parte Powell, Ala.App., 1958, 102 So.2d 923, 927. 
Incidentally, we are not passing on the guilt or innocence 
of Powell, but simply on whether his trial met the standards 
of due process.



Powell v. Wiman, et al. 17

although not soliciting false evidence, allows 
it to go uncorrected when it appears . . . .

“The principle that a State may not know­
ingly use false evidence, including false testi­
mony, to obtain a tainted conviction, implicit in 
any concept of ordered liberty, does not cease 
to apply merely because the false testimony 
goes only to the credibility of the witness. The 
jury’s estimate of the truthfulness and relia­
bility of a given witness may well be deter­
minative of guilt or innocence, and it is upon 
such subtle factors as the possible interest of 
the witness in testifying falsely that a defend­
ant’s life or liberty may depend . . . .”19

Powell has now been imprisoned for more than five 
years. With good time and other allowances, his 
sentence will probably expire within less than another 
year. The Court’s duty upon a habeas corpus hearing 
is to “dispose of the matter as law and justice require.” 
28 U.S.C.A. §2243; cf. 28 U.S.C.A. §4106. From the 
present record, without more, it would appear that 
Powell’s discharge will best serve the ends of justice. 
A derhold v. O’Neill, 5 Cir., 1933, 66 F.2d 85; R eid v. 
Sanford, N.D. Ga., 1941, 42 F.Supp. 300, 303, 304; 39 
C.J.S. Habeas Corpus, Section 102, p. 690, n. 92.

This opinion has, however, gone beyond the findings 
of the district court, and even beyond the briefs of 
counsel, in elaborating upon the State’s suppression of, 
and failure to disclose, vital evidence upon Powell’s 
trial. Further, it is still not entirely clear whether

19 Napue v. Illinois, 1959, 360 U.S. 264, 269.



18 Powell v. Wiman, et al.

the State disclosed any evidence to Powell’s counsel 
before he was tried and convicted, which is, of course 
not shown by the transcript of evidence in his trial. 
Under such circumstances, we accord the State an 
opportunity to request a further hearing in the district 
court, and to make such showing of additional evidence 
from which the district court may determine whether 
such further hearing is warranted. The district court 
will, of course, require that the State act promptly. If 
the district court grants any further hearing, then, so 
far as is consistent with the rights of the State and of 
Powell to introduce all relevant evidence, the district 
court will expedite such hearing and the entry of a 
final judgment. The judgment of the district court is 
reversed and the cause remanded for further proceed­
ings consistent with this opinion.

Adm. Office, U.S. Courts— E. S. Upton Printing Co., New Orleans, La.

REVERSED AND REMANDED.

• EDWARD W. WADSWORTH
S. Court of Appeals,Fifth Circuit

'(M YVL^C'L^-------
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New Orleans, Louisiana FEB 2 *