ORTH v. UNITED STATES, 252 F. 566

WOODS, Circuit Judge.

The defendant was convicted and sentenced under an indictment charging violation of the following statute : "Whoever shall rescue or attempt to rescue, from the custody of any officer or person lawfully assisting him, any person arrested upon a warrant or other process issued under the provisions of any law of the United States, or shall, directly or indireeilj, aid, abet, or assist any person so arrested to escape from the custody of such officer or other person, or shall harbor or conceal any person for whose arrest a warrant or process has been so issued, so as to prevent bis discovery and arrest, after notice or knowledge of the fact that', a warrant: or process has been is,sued for the apprehension of such person, shall be fined not more than one thousand dollars, or imprisoned not more than six months, or both.” Criminal Code, § 141 (Act March 4, 1909, c. 321) § 141, 35 Stat. 1114 (Comp.

St. 1916, § 10311). The first count charged that the defendant aided, abetted, and assisted Robert Fay, a person under arrest and convicted under the laws-of the United States, and in the custody of the warden of the United States penitentiary at Atlanta, to escape from that custody. The second count charges that the defendant harbored and concealed the convict, Robert Fay, so as to prevent his discovery and arrest. The defendant was convicted under both counts, and sentenced to imprisonment for twelve months and a fine of $1,000 and the costs of the prosecution.

Fay escaped from the Atlanta penitentiary on August 29, 1916. On September 23, 1916, he appeared in Charleston, S. C., where the defendant lived, and as the evidence tended to show was by the defendant aided and protected, and assisted to leave Charleston. Under this state of the proof, the defendant’s counsel requested the District Judge to direct a verdict of acquittal on the first count of the indictment. The motion was refused, and the defendant was convicted on both counts. We think the motion should have been granted.

The evidence furnished no foundation for conviction of the charge of aiding Fay to escape from lawful custody. When the physical control has been ended by flight beyond immediate active pursuit, the escape is complete. After that aid to the fugitive is no longer aiding his escape. 2 Wharton, Cr. L. 2606; 1 Russell on Crimes, 467; 10 R. C. L. 579; Smith v. State, 8 Ga. App. 297, 68 S. E. 1071; State v. Ritchie, 107 N. C. 857, 12 S. E. 251. The evidence is clear that.

Fay had escaped altogether from the Atlanta penitentiary, and was at large entirely free from custody for some days before the defendant, Orth, rendered him assistance in Charleston. But this conclusion does not effect the conviction on the second count charging that the defendant harbored and concealed Fay.. Nor does it require a new trial, for the only prejudice to the defendant was in the cumulative sentence of twelve months, which was in excess of the statutory maximum for a single offense.

Separate criminal acts in a single transaction may be split up into as many counts relating to the transaction as the United States attorney may think necessary, so that if the facts as proved turn out to befinsufficient for conviction on one count the government may have the benefit of them on another charge to which they are applicable,, and a verdict- of conviction on all of the counts is not available as a ground for arrest of judgment or for a new trial. United States v. Dickinson, 2 McLean, 328; Fed. Cas. No. 14,958; Reg. v. Truman, 8 Car. & P. 727; United States v. Howell (D.

C.) 65 Fed. 402, and authorities cited. In this case under a single state of facts and a .single course of conduct, the defendant was charged in one count with aiding, abetting, and assisting Fay to escape, and in the other with harboring- and concealing Fay as an escaped convict, so as to prevent his discovery and arrest. The pumslmient for both offenses is precisely the same. The conviction being under the same statute denouncing related offenses and being based on one act or course of conduct, there should have been but one sentence, not exceeding the maximum fixed by the statute.

But the only relief to which the defendant is entitled is to have the case remanded, so that the sentence may be imposed according to law. Stevens v. McClaughry, 207 Fed. 18, 125 C. C. A. 112. 1 L. R. A. (N. S.) 390; Halligan v. Wayne, 179 Fed. 112, 102 C. C. A. 410; Munson v. McClaughry, 198 Fed. 72, 117 C. C. A. 180, 42 L. R. A. (N. S.) 302; O’Brien v. McClaughry, 209 Fed. 816, 126 C. C. A. 540; Williams v. United States, 168 U. S. 382-398, 18 Sup. Ct. 92, 42 L. Ed. 509; Ulmer v. United States, 219 Fed. 641, 134 C. C. A. 127.

It is therefore adjudged that the case be remanded to the District Court for reseutence of the defendant. <©^»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes ©e»Foi other casen s:oe samo topic &, KJÜV-NUMBEB, in all Key-Numbered Digests & Indexes