[3] We are not persuaded by the argument. It is true that, notwithstanding the provisions of section 265 of the Judicial Code, a federal court of equity will on a proper showing enjoin proceedings in a state court which would have the effect of defeating or impairing the jurisdiction of the federal court, or the orders or decrees which it has made. See cases cited, supra.

[4] But the principle thus stated had no application to the case at bar, and the contention of appellant, that the facts stated in the bill bring the case within the principle, rests upon an erroneous conception of the character of the United States Court in the Indian Territory, which rendered the decrees in question, and of its relation to the District Court of the United States for the Northern District of Oklahoma.

The origin and history of the United States Court in the Indian Territory is to be found in the following acts of Congress: Act of March 1, 1889 (25 Stat. 783, c. 333); Act of May 2, 1890 (26 Stat. 81, c. 182); Act of March 1, 1895 (28 Stat. 693, c. 145); Act of June 7, 1897 (30 Stat. 62, 83, c. 3); Act of June 28, 1898 (30 Stat. 495, 496, c. 517); Act of July 1, 1898 (30 Stat. 571, 591, c. 545); Act of May 27, 1902 (32 Stat. 245, 275, c. 888); Act of April 28, 1904 (33 Stat. 573, c. 1824).

The court thus established, though in unorganized territory, was quite similar to the courts established by Congress in organized territories. These courts were not courts of the United States within the meaning of article 3 of the Constitution of the United States. They were legislative courts, established by virtue of the power of the Congress to make rules and regulations respecting the territories of the United States (Const. art. 4, § 3, cl. 2). The jurisdiction of these legislative courts was what the Congress made it. Usually, as in the case of the United States Court in the Indian Territory, the jurisdiction extended far beyond the limits fixed by article 3 of the Constitution of the United States for courts of the United States. The judges were appointed for a fixed term, usually four years, subject to removal. American Ins. Co. v. Canter, 1 Pet. 511, 7 L. Ed. 242; Benner v. Porter, 9 How. 235, 13 L. Ed. 119; Clinton v. Englebrecht, 13 Wall. 434, 20 L. Ed. 659; McAllister v. United States, 141 U. S. 174, 11 S. Ct. 949, 35 L. Ed. 693;

The pleadings and procedure in these legislative courts were governed, not by the Revised Statutes of the United States, but directly by congressional enactment or by territorial legislation. Thiede v. Utah Territory, 159 U. S. 510, 16 S. Ct. 62, 40 L. Ed. 237; Summers v. United States, 231 U. S. 92, 102, 34 S. Ct. 38, 58 L. Ed. 137.

In American Ins. Co. v. Canter, supra, the court said:

"These courts, then, are not constitutional courts, in which the judicial power conferred by the Constitution on the general government can be deposited. They are incapable of receiving it. They are legislative courts, created in virtue of the general right of sovereignty which exists in the government, or in virtue of that clause which enables Congress to make all needful rules and regulations, respecting the territory belonging to the United States. The jurisdiction with which they are invested is not a part of that judicial power which is defined in the third article of the Constitution, but is conferred by Congress, in the execution of those general powers which that body possesses over the territories of the United States. Although admiralty jurisdiction can be exercised in the states in those courts only which are established in pursuance of the third article of the Constitution, the same limitation does not extend to the territories. In legislating for them, Congress exercises the combined powers of the general and of a state government."

In Benner v. Porter, supra, the court said: "The distinction between the federal and state jurisdictions, under the Constitution of the United States, has no foundation in these territorial governments; and consequently no such distinction exists, either in respect to the jurisdiction of their courts or the subjects submitted to their cognizance. They are legislative governments, and their courts legislative courts; Congress, in the exercise of its powers in the organization and government of the territories, combining the powers of both the federal and state authorities. There is but one system of government, or of laws operating within their limits, as neither is subject to the constitutional provisions in respect to state and federal jurisdiction. They are not organized under the Constitution, nor subject to its complex distribution of the

powers of government, as the organic law; but are the creations, exclusively, of the legislative department, and subject to its supervision and control."

courts of the new state. The courts of the United States, inferior to this court, having no jurisdiction except as conferred by Congress, congressional legislation is necessary to

"There is no Supreme Court of the United States, nor is there any District Court of the United States, in the sense of the Constitution, in the territory of Utah. The judges are not appointed for the same terms, nor is the jurisdiction which they exercise part of the judicial power conferred by the Constitution or the general government. The courts are the legislative courts of the territory, created in virtue of the clause which authorizes Congress to make all needful rules and regulations respecting the territories belonging to the United States."

In McAllister v. United States, supra, the court quoted the foregoing excerpts with approval.

When the state of Oklahoma was created, in part out of the Indian Territory, and the courts of the newly organized state, and the newly created Circuit Courts and District Courts of the United States for the newly created judicial districts, were established, the United States Court in the Indian Territory went out of existence. Its jurisdiction ceased. The newly created courts were entirely distinct from the United States Court in the Indian Territory. They were also unrelated to it, except in so far as a relationship may be said to have been created as to pending cases by express legislation of Congress. Some of the pending cases were transferred to the state courts; some to the Circuit and District Courts of the United States-the division depending upon the character of the cases. See sections 16 and 17, Act of June 16, 1906 (34 Stat. 267, c. 3335). It required legislation to transfer the pending cases to the new courts. Benner v. Porter, supra; Koenigsberger v. Richmond Co., supra.

In the case last cited the court said (158 U. S. at page 48 [15 S. Ct. 754]):

"But when a territory is admitted into the Union as a state, upon the same footing as all the other states, the territorial government and courts cease to exist, and matters of national cognizance remain within the power and jurisdiction of the nation, but other matters come under the power and jurisdiction of the state; and then it becomes important to distinguish, as to pending suits, whether they are of a federal or of a municipal character, and to provide by law that those of the first class should proceed in the courts of the United States, and those of the second class in the

state into the Union, to take jurisdiction of cases previously commenced in the courts of the territory, and not yet finally adjudged." (Italics ours.)

Neither the section of the act of Congress which created the new Circuit and District Courts of the United States (section 13 of the act last above cited [Comp. St. § 1088]), nor the sections which conferred on the new courts jurisdiction over pending cases which were transferred (sections 16 and 17), vested in those courts jurisdiction to protect the judgments and decrees of the defunct United States Court in the Indian Territory. Only from the authority of Congress could such jurisdiction be derived.

In Kline v. Burke Construction Co., 260 U. S. 226, 234, 43 S. Ct. 79, 82 (67 L. Ed. 226, 24 A. L. R. 1077), the court said:

That

"Only the jurisdiction of the Supreme Court is derived directly from the Constitution. Every other court created by the general government derives its jurisdiction wholly from the authority of Congress. body may give, withhold, or restrict such jurisdiction at its discretion, provided it be not extended beyond the boundaries fixed by the Constitution. Turner v. Bank of North America, 4 Dall. 8, 10 [1 L. Ed. 718]; United States v. Hudson & Goodwin, 7 Cranch. 32 [3 L. Ed. 259]; Sheldon v. Sill, 8 How. 441, 448 [12 L. Ed.,1147]; Stevenson v. Fain, 195 U. S. 165 [25 S. Ct. 6, 49 L. Ed. 142]. The Constitution simply gives to the inferior courts the capacity to take jurisdiction in the enumerated cases, but it requires an act of Congress to confer it."

The inherent power existing in the District Court of the United States for the Northern District of Oklahoma to protect by injunction its own jurisdiction and its own judgments cannot properly be exercised to protect the jurisdiction and judgment of another court. Such a claim is not even advanced. Inasmuch as the facts stated in the bill did not show that the judgment for which protection was asked was a judgment of the court from which protection was sought, it follows that the bill did not set up a cause of action in equity, and for that reason was properly dismissed.

As this view disposes of the appeal, it is unnecessary to consider other questions raised by counsel.

Decree affirmed.

HOSTETTER v. UNITED STATES

(two cases).

(Circuit Court of Appeals, Eighth Circuit. December 21, 1926.)

Nos. 7519, 7520.

1. Criminal law 620(1)—Consolidation of indictments for conspiracy and substantial offense held permissible (Comp. St. § 1690). Indictments for conspiracy to transport in interstate commerce a stolen automobile and for so transporting stolen automobile may be consolidated for trial, under Rev. St. § 1024 (Comp. St. § 1690), as embracing charges for acts or transactions connected together.

2. Criminal law 620(1)-Any error in consolidation of Indictments is waived, in absence of objection and exception.

There having been no objection or exception to consolidation of indictment for trial, any error in that respect was waived.

3. Criminal law 29-Parties may be punished both for conspiracy to transport stolen automobile in interstate commerce and for such transportation.

Conspiracy to transport a stolen automobile in interstate commerce, pursuant to which conspirators stole and so transported it, and such transportation, constitute separate of fenses, for both of which the parties may be punished.

4. Constitutional law 268-Criminal law 620 (1) -Trying one at single trial before single jury for more than one infamous crime, and imposing separate punishment is not unconstitutional (Comp. St. § 1690; Const. Amend. 5).

For federal court to try one at a single trial before a single jury for more than one infamous crime, indictments for which have been consolidated pursuant to Rev. St. § 1024 (Comp. St. § 1690), and imposition of punishment for each, is not violative of Const. Amend. 5.

5. Criminal law

1216(2)-Where indictments have been consolidated for trial, court can impose cumulative sentences.

Federal court can impose cumulative sentences for offenses, indictments for which have been consolidated for purpose of trial.

6. Receiving stolen goods-Driving automobile between states is "transportation." Moving automobile under its own power from one state to another is "transportation"

in interstate commerce.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Transport-Transportation.]

In Error to the District Court of the United States for the District of Colorado; John Foster Symes, Judge.

Harry H. Hostetter was convicted of conspiracy and of transporting a stolen automobile in interstate commerce, and brings error. Affirmed.

Daniel E. Bird, of Kansas City, Mo. (F. W. Driscoll, of Kansas City, Mo., on the brief), for plaintiff in error.

Roy H. Blackman, Asst. U. S. Atty., of Denver, Colo. (George Stephan, U. S. Atty., of Denver, Colo., on the brief), for the United States.

Before KENYON, Circuit Judge, and SCOTT and JOHN B. SANBORN, Distriet Judges.

SCOTT, District Judge. On the 18th day of April, 1925, two indictments were returned against the defendants Harry Hostetter and Clifford Obermeyer in the District Court of the United States for the District of Colorado. Indictment No. 3127, docketed in this court as cause No. 7519, charges in substance that said Hostetter and Obermeyer, on or about the 20th day of January, 1925, did knowingly and feloniously transport and cause to be transported in interstate commerce from the city of Pueblo, in the county of Pueblo, in the state and district of Colorado, to and into the city of Franklin, in the county of Morgan, in the state of Illinois, a certain motor vehicle, to wit, one Ford coupé automobile, bearing motor number 10418093, which automobile was then and there the property of one H. C. Philbrick, of the city of Coolidge, in the county of Hamilton, state of Kansas, and which automobile had theretofore on the 12th day of December, 1924, been stolen from said Philbrick at said city of Pueblo, all as said Hostetter and Obermeyer then and there well knew.

Indictment No. 3129, docketed in this court as cause No. 7520, charges in substance that said Hostetter and Obermeyer, on or about the 1st day of December, 1924, at the city of Pueblo, in the state and district of Colorado, did willfully, knowingly, feloniously, etc., conspire, combine, confederate, and agree together and with one Edward A. Griggs to commit certain offenses against the United States, to wit, to violate the Act of Congress of October 29, 1919 (Comp. St. §§ 10418b10418f), in this: That it was the purpose and object of said conspiracy to willfully, unlawfully, feloniously, etc., transport or cause to be transported in interstate commerce from the city of Pueblo and county of Pueblo, in the state and district of Colorado, to the city of Franklin, in the county of Morgan, state of Illinois, a certain Ford coupé automobile, describing the same automobile as that described in indictment No. 3127, which said automobile was the property of one Harold C. Philbrick, of the city of Coolidge, county of Hamilton, state of Kansas, knowing the same

to have been stolen from the said Philbrick; and further charging, in substance, that after the formation of said conspiracy, and in pursuance of and to effect the object thereof, the said Hostetter and Griggs did on the 12th day of December, 1924, in the county of Pueblo and state of Colorado, steal, take and carry away the said automobile; and further in substance alleging that, after the formation of said conspiracy and in pursuance of and to effect the object thereof, on or about the 20th day of January, 1925, said Obermeyer did unlawfully and feloniously transport and cause to be transported in interstate commerce from the city of Pueblo, in the county of Pueblo, in the state and district of Colorado, to and into the city of Franklin, in the county of Morgan, state of Illinois, said automobile, then and there the property of said Philbrick, of the city of Coolidge, county of Hamilton, state of Kansas, and which automobile had theretofore on the 12th day of December, 1924, been stolen from said Philbrick, all as the said Hostetter, Obermeyer, and Griggs then and there well knew.

Edward A. Griggs was not made defendant in indictment No. 3129, and to each of the indictments in question the defendants Hostetter and Obermeyer appeared and pleaded not guilty, and thereupon the District Court, by appropriate form of order, consolidated the two indictments for the purpose of trial; no objection being interposed or exception saved to such consolidation. The causes thus consolidated were tried, and in each cause the jury returned a verdict finding the defendant Hostetter guilty as charged, and thereupon, on motion of the United States attorney, the court, on the verdict upon indictment No. 3127, sentenced said Hostetter to confinement in the penitentiary of the United States at Leavenworth, Kan., for a term of five years from and after the 15th day of May, 1925, and that he pay a fine of $2,000, and upon the verdict returned upon indictment No. 3129 (the conspiracy verdict) the court sentenced said Harry Hostetter to confinement in the penitentiary of the United States at Leavenworth, Kan., for a term of two years, and that he pay a fine of $5, and further ordered that the term of imprisonment on the conviction under indictment No. 3129, case No. 5054, should commence to run at the expiration of the term of imprisonment in case No. 5052.

The defendant Hostetter has sued out writ of error in each of the cases, and brings them to this court thereon. The cases were argued and submitted together; the assignments of error in each case being identical. Eight assignments of error were filed. No. 1 assigns

error on the consolidation of the two causes for trial; No. 2, in imposing two punishments; No. 3, in imposing a sentence in excess of two years for the offenses as charged in the indictments so consolidated; No. 4, in imposing more than one punishment; No. 5, in imposing a punishment in excess of the maximum punishment for a single violation of the act, and assigning as reason that the excessive judgment deprives defendant of his right to petition for a parole; No. 6, in imposing punishment at all, on a claim that the evidence fails to show that the automobile was transported in interstate commerce within the meaning of section 3 of the Act of October 29, 1919 (Comp. St. § 10418d); No. 7, in denying defendant's motion to exclude all of the evidence; and No. 8, in not arresting judgment on indictment in case No. 5052, because the act therein charged is the same as that charged in the indictment in case No. 5054, and subjects defendant to double penalty.

Counsel for plaintiff in error have not argued the eight assignments referred to separately and in order. The argument for plaintiff in error comprises a discussion of seven points or propositions. [1, 2] Point I. "Error of the court in ordering the indictments Nos. 5052 and 5054 consolidated, in that they are not of a like nature or like penalty and not authorized by section 1024 of the Revised Statutes of the United States."

Section 1024 of the Revised Statutes of the United States (Comp. St. § 1690) is in the following language:

"When there are several charges against any person for the same act or transaction, or for two or more acts or transactions connected together, or for two or more acts or transactions of the same class of crimes or offenses, which may be properly joined, instead of having several indictments the whole may be joined in one indictment in separate counts; and if two or more indictments are found in such cases, the court may order them to be consolidated."

It will be observed that this section includes three classes of charges which may be consolidated. First, "several charges against any person for the same act or transaction;" second, "or for two or more acts or transactions connected together;" and third, "or for two or more acts or transactions of the same class of crimes or offenses." Where two or more persons enter into a conspiracy to commit a particular offense, and subsequently one or more of them in pursuance of the conspiracy commit that offense, we think it beyond the realm of controversy that the facts perti

nent to the two offenses constitute "two or more acts or transactions connected together." It seems to us that such a case falls both within the letter and the spirit of section 1024. But there is another answer to this proposition; that is, there was no objection interpos-. ed or exception saved to the consolidation of these indictments, and even though there might be doubt as to our first conclusion, any error of the District Court in that respect would be waived. Logan v. United States, 144 U. S. 263, 12 S. Ct. 617, 36 L. Ed. 429. [3] Point II. That "the two indictments charge but one single offense, subject to but a single punishment."

This point is clearly without merit, nor do the cases cited by plaintiff in error in any manner sustain the proposition. The conspiracy alleged, if entered into, was an entirely separate offense, and might have been proven by entirely different evidence than the transportation of the automobile in interstate commerce, as alleged in the indictment in cause No. 7519. In cause No. 7520, the indictment alleges conspiracy and sets forth two separate overt acts-one, the larceny of the automobile within the state of Colorado; and the other, the transportation of the automobile in interstate commerce. Now, the conspiracy-that is, the confederation and agreement-having been alleged and established, the crime of conspiracy would be complete upon proof of the larceny as set forth in the first overt act, and the government would not be required to undertake any proof of transportation in interstate commerce. However, we think it equally clear and well settled that a conspiracy having as its object an offense against the United States is complete and independent in its criminal characteristic of the offense which may be the object of the conspiracy, and if such offense, the object of the conspiracy, happens thereafter to be committed by one of the conspirators, he may be punished for both offenses.

[4] Point III. "The United States District Court of Colorado was without jurisdiction to try defendant (or plaintiff in error) for more than one infamous crime at one trial before a single jury, for the reason that such an indictment is contrary to the expressed provisions of the Fifth Amendment, and if section 1024 of the Revised Statutes authorizes more than one punishment, such section clearly attempts to do what the Fifth Amendment guarantees cannot be done by Congress or a federal court, and was enacted by Congress without power or constitutional authority."

It seems to us that this point is likewise without merit, and we find nothing in the

authorities cited by counsel for plaintiff in error which ought to mislead counsel in urging such proposition to this court. [5] Point IV. "The trial court had no jurisdiction to assess cumulative, successive or consecutive sentence, as there is no federal statute authorizing such sentence, and the common law to which we look for precedents and interpretations does not sanction such sentences."

Point V. "There is no federal statute authorizing a federal judge to postpone the operation of a sentence, for a definite or indefinite period of time, or for any cause or reason, as this is the executive's prerogative."

What we have said to points II and III applies equally to points IV and V. The practice, often unavoidable, of imposing sentences upon separate counts of a single indictment, or of indictments consolidated, with provision for the running of such sentences consecutively, is too thoroughly established, and has been of two long a practice to require, either discussion or citation of authorities. True, it is not an infrequent practice for courts to impose one general judgment or sentence covering the several counts in a single indictment; but, where two indictments are consolidated for the purposes of trial only, each case has its own record. Indeed, the instant case illustrates the practice very clearly. Cause No. 7519 and cause No. 7520 come to this court upon two separate records, two separate assignments of error, and under two separate appeals, and are only argued and considered together for the purpose of convenience.

Point VI. "Because of excessive sentence defendant (or plaintiff in error) will be deprived of his right to petition for parole at the time entitled thereto under the provisions of the Parole Act of June 25, 1910," as amended (Comp. St. §§ 10535-10544).

This point is attempted to be sustained by citation of the case of O'Brien v. McClaughry (C. C. A.) 209 F. 816. The opinion in the cited case, as written, is not in our opinion an authority on the proposition quoted. It may not be inappropriate to say, however, that the case of O'Brien v. McClaughry follows the case of Munson v. McClaughry (C. C. A.) 198 F. 72, 42 L. R. A. (N. S.) 302, and that the United States Supreme Court, in the case of Morgan v. Devine, 237 U. S. 632, at page 640 et seq., 35 S. Ct. 712, 59 L. Ed. 1153, disapproved the case of Munson v. Mc-. Claughry, and we think both the McClaughry Cases in effect overruled.

[6] Point VII. "The indictment charges no offense against the United States and fails to