Page:Federal Reporter, 1st Series, Volume 9.djvu/912

 UNITED STATES V. MALONE. 897 �subsequently the words " shall be adjudged guilty of a felony" were dropped. Hence, what was once a felony by force of the United States Statutes bas ceased to be so through subsequent legislation. Independent thereof it must be considered that no conspiracy at common law was infamous except such as pertained to the subversion of justice. The conspiracy charged, for which the defendant has been found guilty on information, was not a conspiracy even to cause a felony to be committed, or to subvert the administration of justice. Still, under the rulings in Wynn's Case, if the conspiracy charged was not by act of congress declared infamous or a felony, the offence was rightfully prosecuted by information. Even if it had been a conspiracy to cause a felony to be committed, it would still be a simple misdemeanor. �The motion for arrest is overruled. �Cases cited and examined: Section 5440, Eev. St. ; Act April 21, 1806, (2 St. at Large, 404, 405 ; 4 St. at Large. 121 ; 13 St. at Large, 120 ;) 3 Cox, Crim. Cas. 229; 4 Ward. 265; Cooley, Blackstone, 186; 13 Johns. 82; Inre Ville, 2 Dod. 174; 12 Ward. 209; 2 Bish. 176; and those noted in Wynn's Case, ante, 886. ���United States v. Malone.* {Circuit Court, S. D. New T<yrk. December 20, 1881.) �1. IliDICTMENT UNDER SECTION 3266, REV. 8t.— iLWCrT DiSTILLING— MoTION TO �Vacate Judgment. �Where conviction was had at March term and sentence imposed at the follow- ing May term, and application made at October term to vacate judgment and commitment, held, that the application was too late, as according to the rules of court it should have been made in arrest of judgment, or for a new trial before sentence was imposed, aud that the term at which judgment was ren- dered having expired, no power remained in the court to vacate the judg- ment. �2. INDTCTMENT — SePAHATB CollNTS in — i}PPBCT OP. �Where a prisoner is convicted on the flrst count and acquitted on the second, the sentence of the court is a judgment that the verdict upon the second count did not make void the verdict upon the flrst count, and cannot be brought in review by a motion made after final judgment. �Each count of an indictment, in judgment of law, charges a separate and distinct offence, and is, in fact and theory, a separate indictment. Accord- ingly, where a prisoner is charged in two separate counts with having used two different stills at different times on the same day and at the same place, and is �•Reported >iy S. Nelson White, Esq., of the New York bar. �v.9,no.l5 — 67 ��� �