Orth v. United States

• Decision Date: 06 July 1918
• Docket Number: 1600.
• Citation: 252 F. 566
• Parties: ORTH v. UNITED STATES.
• Court: U.S. Court of Appeals — Fourth Circuit

252 F. 566

ORTH v. UNITED STATES.

No. 1600.

United States Court of Appeals, Fourth Circuit.

July 6, 1918

Paul M Macmillan, of Charleston, S.C., for plaintiff in error.

J Waties Waring, Asst. U.S. Atty., of Charleston, S.C. (Francis H. Weston, U.S. Atty., of Columbia, S.C., on the brief), for the United States.

Before PRITCHARD, KNAPP, and WOODS, Circuit Judges.

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, Sec. 141 (Act March 4, 1909, c. 321) Sec. 141, 35 Stat. 1114 (Comp. St. 1916, Sec. 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...