dissenting.
The hearing judge considered the evidence presented in the federal court as well as the admission of the prosecutor that the allegations of Harris were substantially true.
It would probably serve no purpose to have an evidentiary hearing. The Honorable Fred Erisman, the district judge who tried the case 29 years ago, is dead.
It is unlikely that the present prosecutor would concede in a case that was tried in 1950 that Harris is entitled to release if the prosecutor who tried the case were available and would testify contrary to allegations before the hearing court.
If the majority wants the evidence in the companion case involving Hatch which was considered by the hearing judge, such could be sent to this Court for review. The hearing judge found that the facts in the Hatch case were the same as those in the present case. Hatch, on the same facts as found by the hearing judge, was granted relief in a federal court.
Without any assurance or probability that any other evidence is available, the hearing judge must conduct an evidentiary hearing. After the hearing, Harris will no doubt be returned to Huntsville, and in all probability the new record will contain no more than what was already considered by the hearing court.
This Court should not order an evidentia-ry hearing but should order the hearing judge to furnish us with what he considered in concluding that relief should be granted.
ROBERTS, J., dissents. W. C. DAVIS and CLINTON, JJ., join in this dissent.