the second degree.  He applied to the United States District Court for the Western District of New York for a writ of habeas corpus pursuant to 28 U.S.C. 2241, claiming that he is being held in custody in violation of the federal Constitution.  The District Court denied his application on the merits, and this is an appeal from that order.  We reverse.


2
On or about April 22, 1949 Hetenyi's wife was shot to death.  Approximately one month later, on May 19, 1949, Hetenyi was indicted by the Grand Jury of Monroe County, New York, for murder in the first degree, and he was thrice tried on this same indictment.1  At all three trials the evidence supporting the charge was circumstantial.


3
The first trial took placechanges in Hetenyi's religious affiliations were emphasized and Hetenyi was accused of being a 'renegade,' 'a man to whom religion is a fraud, who engages in it purely and simply for selfish reasons,' violated a 'rule of fundamental fairness in the protection of the individual against unjust prosecution.'  A new trial was ordered.


5
Hetenyi was then tried for the third time.  This third trial took place in March, 1953 in the Onondaga County Court, as Hetenyi had obtained a change in venue.  Once again he was tried upon the same 1949 indictment charging him with first degree murder; and as was done in the other two trials, the trial judge gave the jury the alternatives of returning a verdict of guilty of first degree murder, guilty