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Emanuel PEA, Appellant, v. UNITED STATES of America, Appellee.

No. 17824.

United States Court of Appeals District of Columbia Circuit.

Argued Sept. 24, 1963.

Decided Oct. 10, 1963.

Petition for Rehearing Denied Nov. 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 J udges.

PER CURIAM.

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 is*443sue.” 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.

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