
    MAHONEY v. CHAPMAN, Superintendent of Prison.
    No. 12372.
    Circuit Court of Appeals, Fifth Circuit.
    July 16, 1948.
    James J. Mahoney (in pro. per.) of Raiford, Fla., for appellant.
    J. Tom Watson, Atty. Gen. of Florida, and Reeves Bowen, Asst. Atty. Gen. of Florida, for appellee.
    Before HUTCHESON, McCORD, and WALLER, Circuit Judges.
   PER CURIAM.

This appeal is from “a final decision by a court of the United States in a proceeding in habeas corpus where the detention complained of is by virtue of process issued out of a State court.” Under the provisions of Section 466, Title 28 U.S.C.A., a certificate of probable cause is a jurisdictional prerequisite to such an appeal, The appellant does not present such certificate, but, on the contrary, there appears in the record a finding and order (by the district judge) that “petitioner’s motion for a certificate of probable cause is denied without prejudice as this court cannot conscientiously sign such a certificate.” The record standing thus, the appellant has applied to this court to grant him a certificate of probable cause.

The judges of this court have, therefore, examined the record to determine whether the certificate applied for should issue. Upon such examination they have become convinced, upon the authority of Donald Wade v. Nathan Mayo, 1948, 68 S.Ct. 1270, not only that the certificate should issue, but that the judgment should be reversed. It is, therefore, ordered that a certificate of probable cause issue, and that the judgment be reversed and the cause remanded for trial of the issues tendered on appellant’s application for the writ of habeas corpus.  