Page:Federal Reporter, 1st Series, Volume 9.djvu/914

 UNITED BTATES V. MALONE. 899 �that notice of such a motion must be filed within three days after the conviction, and the minutes of the trial, as settled by the judge who tried the case, be filed before the first day of such subsequent term. In this case the prisoner was sentenced at the term subsequent to the conviction, in the absence of any motion for a new trial or in arrest of the judgment in pursuance of the rules, and he cannot now, at this late day, after j adgment, and when bis term of imprisonment bas partly expired, upon a motion like the present, urge an objection which, if valid and taken in the manner prescribed by the rulcs, would have arrested the judgment. By omitting to comply with the irules the prisoner must be deemed to have waived the right to raise in this court any question proper to be raised in the manner required by the rules. �Second. The judgment sought to be vacated was rendered at the May term of this court, and this application is made at the October term thereafter. The term at which the judgment was entered hav- ing expired, no power remains in the court to vacate the judgment. Bank v. Labitut, 1 Woods, 11 ; Bank of U. S. v. Moss, 6 How. 31. �Third. The question now presented in regard to the effect of the verdict rendered upon the second count was necessarily involved in the question of sentence, andwhen the prisoner was sentenced it was necessarily adjudged by the court that the verdict upon the second count did not make void the verdict upon the first count. �That determination cannot now be brought in review by an appli- cation like the present, made after final judgment. �It is said, however, that the judgment is void because there is no conviction, the defendant having been acquitted on the second count. But how can the judgment be held void when the court had jurisdic- tion of the person and of the subject-matter, and the record shows a valid in dictment, a verdict of guilty upon one of its counts, and a sen- tence such as the law permits for the offence charged in such count ? If there was error, as manifestly there was not, in the determination made at the trial in regard to the effect of the verdict of acquittai upon the second count, such error would not make void the sentence pronounced upon the verdict of guilty which the record shows to have been rendered on the first count. �Moreover, the contention in behalf of the prisoner that error was committed at the trial in construing the verdict to be a verdict of guilty rests upon the assumption that the offence charged in the sec- ond count is the same offence charged in the first count. The as- sumption is without foundation. ��� �