Tomich

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:

(1) That certain evidence used against him during the course of the trial, was obtained by an unlawful search and seizure in violation of the provisions of the Fourth and Fourteenth Amendments to the Constitution of the United States.

(2) That appellee, due to the ineffectiveness of counsel, was denied a fair trial as guaranteed by the Sixth Amendment.

The trial court found in favor of appellee on both points.

The judgment is affirmed on our holding that the findings of the trial court on the search and seizure are not clearly erroneous. We do not reach the second point.

Appellee was convicted in the district court of the State of Montana of the crime of burglary in the first degree: His applications for relief to the district and supreme courts of the…