Hastie, Chief Judge, and Kalodner and Staley, Circuit Judges.
This is an appeal by the State of Pennsylvania from a judgment of a district court granting habeas corpus to Roy Metz, a state prisoner serving a life term for the murder of his wife. In granting the writ, the district court concluded that the course followed by the state trial court in requiring the accused to stand trial after the court, on its own initiative, had set aside a guilty plea, offended the Fifth Amendment stricture against double jeopardy as made applicable to state proceedings by the Fourteenth Amendment.
The record of the state proceedings shows that, after his indictment on a charge of willfully killing his wife, the accused pleaded guilty to the charge of murder generally.*fn1 This plea followed assurance by the prosecutor that he viewed the homicide as second degree murder and would recommend a sentence of not less than seven years.
The case came on for hearing as provided by state law to determine the degree of the offense. After several witnesses called by the prosecution testified to a willful killing, the accused testified at length. The following excerpts are pertinent:
"Q. (Counsel for Metz) Why did you do it? Why did you go to the cupboard and get the gun?
A. I went in the cupboard to get this gun in order to scare my wife again, but that time not to her. I told her I was going to use it on myself.
Q. Why did you tell her you were going to shoot yourself or words to that effect?
A. I remember her saying that she wouldn't live with me if I was the last man in the world.
Q. Did you get the gun out and point it at her or you?
A. I pointed it at myself.
A. She says, 'For God's sake, Roy, don't do anything like that. Think of your own people.' And I was still in grips, and she grabbed my hand, we had a struggle, and as far as I know, she was pulling on -- she was going down ...