Biggs and Kalodner, Circuit Judges, and Van Dusen, District Judge.
This appeal is from the Order of the District Court for the Eastern District of Pennsylvania*fn1 denying the appellant David Almeida's petition for a writ of habeas corpus.
The questions presented are as follows:
(1) Was Almeida deprived of liberty without due process of law because the Commonwealth allegedly obtained his indictment "by the knowing and wilful suppression of evidence and the knowing and wilful presentation of untrue testimony" to the grand jury?
(2) Was the application to Almeida of the rule of Commonwealth v. Moyer, 357 Pa. 181, 53 A.2d 736 (1947) and Commonwealth v. Almeida, 362 Pa. 596, 68 A.2d 595, 12 A.L.R.2d 183 (1949), cert. den. 339 U.S. 924, 70 S. Ct. 614, 94 L. Ed. 1346 (1950), decided subsequent to the homicide which resulted in Almeida's conviction of murder in the first degree, an ex post facto application in violation of the due process clause of the federal Constitution; otherwise stated, was the act for which Almeida was convicted a crime when it was committed and was his conviction therefor in violation of the ex post facto provision of Article 1, § 10 of the federal Constitution?
(3) Was the determination of what constituted murder under the Pennsylvania Penal Code, 18 P.S. § 4701, as applied to Almeida's case, based upon laws too vague and indefinite to support his conviction and therefore a deprivation of his liberty without due process of law?
(4) Does Almeida's sentence to life imprisonment for murder constitute a denial of the equal protection of the laws since the decision in Commonwealth v. Redline, 391 Pa. 486, 137 A.2d 472 (1958)?
(5) Was Almeida's retrial, following a prior grant of the habeas corpus writ on his application, barred by the proscription against "double jeopardy" in the light of the prosecutor's misconduct "going to the integrity of the trial process?"
Discussion of the issues presented must be prefaced by this factual background:
On January 30, 1947, Almeida and two confederates, Hough and Smith, perpetrated an armed robbery of a supermarket in Philadelphia, Pa. Almeida and Hough were each armed with.45 caliber revolvers; Smith had a.22 caliber revolver. As the three men attempted to flee the scene they engaged in a gun battle with police. Cecil Ingling, an off-duty policeman who, by mere coincidence, had also come upon the scene, accompanied by his wife, was killed by a bullet wound in the head while attempting to capture Hough who was firing directly at the police. During a subsequent pursuit of the robbers' car by police, Hough was arrested when he fell out of it as it made an abrupt turn; Smith and Almeida escaped but were later apprehended.
The three men were indicted for the murder of Ingling on April 1, 1947, on the Commonwealth's theory that it was a homicide in the commission of a felony.
Mrs. Ingling and Hough both appeared before the grand jury which returned the indictment for murder, pursuant to which Almeida was later tried in June, 1948, and found guilty of murder in the first ...