B. J. Rhay, Superintendent, Washington State Penitentiary v. Don Anthony White

We affirm the District Court’s order in habeas corpus directing that appellee White be released from confinement by the Superintendent of the Washington State Penitentiary unless the State of Washington grants him a new trial within 120 days.

White is under conviction and sentence for two offenses of murder committed on the same day and made the subject of trial together. On the first slaying he was found guilty of murder in the first degree and given a death sentence, and on the second he was found guilty of murder in the second degree and given a life sentence.

The judgments were affirmed by the Supreme Court of the State of Washington in State v. White, 60 Wash.2d 551 , 374 P.2d 942 , and thereafter White un successfully engaged in collateral attack on various grounds and exhausted his state remedies in respect thereto. See White v. Rhay, 64 Wash.2d 15 , 390 P.2d 535, 537 , and White v. Rhay, 65 Wash.2d 711 , 399 P.2d 522 .

Only one of these grounds is involved in the appeal here, since it was on this single basis that the District Court granted the writ. That ground is whether on the elements before the trial court the situation presented such a substantial question of…