Silva

Appellant was convicted under an indictment charging four separate violations of the internal revenue laws, in respect to the setting up and operation of a still without registration, in the Northern district of California, on or about May 19, 1928, and the judgment im: posed a separate punishment for each charge.

In respect to the first count, without success appellant moved for arrest of judgment. This count charges only a failure to register the set-up still with the “internal revenue collector,” and in that particular it is subr stantially identical with counts 1, 2, and 3 of the indictment considered by the Circuit Court of Appeals of the Second Circuit in United States v. Lecato et al., 29 F.(2d) 694 . For the reasons there assigned, vre agree with that court that the defect is vital, and accordingly hold it was error to deny the motion in arrest of judgment.

As to the judgment on counts 2, 3, and 4: There was no motion challenging the sufficiency of the evidence, no request for instructions of any character, and no exception to instructions given; hence there is not properly before us any question touching these subjects.

The still was by the prohibition agents found set…