Opinion
No. 17824.
Argued September 24, 1963.
Decided October 10, 1963. Petition for Rehearing Denied November 5, 1963.
Mr. Henry Lincoln Johnson, Jr., Washington, D.C. (appointed by the District Court), for appellant.
Mr. Jerome Nelson, Atty., Dept. of Justice, with whom Mr. David C. Acheson, U.S. Atty., Frank Q. Nebeker and Joseph A. Lowther, Asst. U.S. Attys., were on the brief, for appellee.
Before EDGERTON, Senior Circuit Judge, and DANAHER and McGOWAN, Circuit Judges.
The defendant appeals from a conviction of second degree murder and assault with a dangerous weapon. A detective questioned him and got a confession while he was under arrest and lying wounded in a hospital. In keeping with the spirit of Rule 5(b), F.R.Crim.P., we might have expected that the detective would have warned him of his right to remain silent. The record does not show whether the detective did so. It does not show that either the prosecution or the defense "sought to ventilate the issue." In these circumstances we cannot reverse. Hawkins v. United States, 109 U.S.App.D.C. 338, 341-342, 288 F.2d 122, 125-126 (1960) (concurring opinion).
Affirmed.