Gargano

Appellant was indicted in three counts, was arraigned, pleaded not guilty and was tried, convicted and sentenced on all counts of the indictment. The judgment sentencing appellant was entered on February 5, 1938. On February 12, 1943 — long after the expiration of the term of court at which the judgment was entered — appellant moved to vacate and set aside that part of the judgment which sentenced him on count 2 of the indictment, on the ground that that part of the judgment was void because counts 1 and 2 charged a single offense. The court heard the motion and, on May 24, 1943, made an order denying it. From that order this appeal was taken.

Questions presented are (1) whether we have jurisdiction of the appeal; if so, (2) whether the District Court had jurisdiction of the motion; and if so, (3) whether the motion was well founded.

First. With inapplicable exceptions, circuit courts of appeals have jurisdiction to review by appeal all final decisions in the district courts 1 and, with inapplicable exceptions, have no other appellate jurisdiction. Circuit courts of appeals have many times entertained appeals from orders denying motions to amend, modify, vacate or set aside…