ORTH v. UNITED STATES, 252 F. 569

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 indirectly, 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 his discovery and arrest, after notice or knowledge of the fact that a warrant or process has been issued 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 (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 William Knobloch, 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 charged that the defendant harbored and concealed the convict, William Knobloch, so as to prevent his discovery and arrest. Knobloch escaped from the Atlanta penitentiary on August 29, 1916. Some time in September, 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. The defendant was convicted on both counts of the indictment, but was sentenced only to pay a fine of $100 and imprisonment for two months. This was less than the maximum penalty provided by the statute.

We think the motion should have been granted in accordance with the views expressed in the opinion this day filed in No. 1600, 252 Fed. 566, - C. C. A. -, a similar case against the same-defendant. But, as we held in that case, there was no prejudicial error in refusing to direct a verdict of acquittal on the first count or in the sentence; for the conviction under the second count was well supported by the evidence, and tfie sentence was not in excess of the maximum provided for the offense.

The defendant testified in his own behalf on his trial for aiding Fay concerning the assistance he gave to Knobloch when he came to Charleston in September. Against the objection of the defendant, the court allowed this testimony to be introduced in this case, as in the nature of an admission or a confession. It is earnestly insisted that this was a violation of the constitutional right of the defendant thafi. he should not be required to testify against himself. The point is not well taken.

The defendant was not under constraint or compulsion to testify in his trial for aiding Fay, and therefore his testimony in that case was admissible in any other legal proceeding, just as any other-confession or admission would have been. Affirmed. <&wkey;I<’or other oases see same topic & KISY-NUMBISR. in all Key-Numbered Digests & Indexes