Page:Federal Reporter, 1st Series, Volume 9.djvu/913

898 FEDERAL REPORTER. �acquitted on one count and convicted on the other, there is no room to con- tend that the jury found him guilty and likewise not guilty of the same oiience. 3. Same — Avbkmbiit op Knowlebge in. �When a statute prohibits generally aud is silent as to intention, the plcader need not aver knowledge. �Motion to Vacate Judgment. �Sutherland Tenney, Asst. Dist. Atty., for the United States. �Roger M. Sherman, for defendant. �Benediot, D. J. The defendants were jointly indicted and tried together at the March term, 1881. The indictment contained three counts, framed under section 33G6 of the Revised Statutes. The first count charged, in substance, that the defendants, on the fifth day of May, A. D. 1879, unlawfully did use a still for the parpose of distil- ling spirits on premises where aie was manufactured, to-wit, on the premises No. 513 West Fifty-second street, in the eity of New York. The second count charged in substance that the defendants unlawfully and knowingly did use, and did aid and assist in using, a still for the purpose of distilling spirits on the premises No. 513 West Fifty-second street, on which said premises fermented liquor, to-wit, aie, was man- ufactured and produced. The third count charged, in substance, that the defendants unlawfully and knowingly did use a boiler for the purpose of distilling spirits on premises where aie was produced, that is to say, on the premises No. 513 West Fifty-second street, in the city of New York. The verdict of the jury upon the first count was not guilty as to Peter A. Malone and guilty as to Dominick Malone. On the second and third counts the verdict was not guilty as to both the defendants. Thereupon Peter A. Malone was discharged, and afterwards, and at the May term, on motion of the district attorney, Dominick Malone was sentenced to be imprisoned for the period of 16 months and to pay a fine of $1,000. �Now, at the October term of the court, application is made in behalf of the prisoner to vacate the judgment and commitment. This ap- plication is based on the proposition that the offence charged in the first count of the indictment is the same offence charged in the second count, and that the acquittai on the second count must prevail, and makes void the verdict upon the first count. To this there are sev- eral answers : �First. The objection, if valid, comes too late. By the rules of this court, when a conviction is had, sentence is deferred to the next term of the court for the purpose of affording opportunity to move mean- while in arrest of judgment or for a new trial, and the rules prescribe ��� �