(after stating the facts as above). It is wholly immaterial what statute was in the mind of the United States attorney when the indictment was preparеd and return made thereof by the grand jury, if the charge made is in violation of some statute. Williams v. U. S.,
By resolution dated January 31, 1922 (Comp. St. Ann. Supp. 1923, §§ 7677, 7678), whenever the Presidеnt finds, in any country in which the United States exercises extraterritorial jurisdiction, conditions of domestic violence exist which are or mаy be promoted by the use of arms or munitions of war procured from the United States, and makes proclamation thereof, it shall bе unlawful to export, except under such limitations as the President may prescribe, any arms or munitions "of war from any place in the Unitеd States to such country, until otherwise ordered by the President or by the Congress. Pursuant to such resolution the President, on March 4, 1922, declared that “whoever exports any arms or munitions of war in violation of section 1 [of the Joint Resolution], shall on conviction be punished by a fine not exceeding $10,000, or-by imprisonment not exceeding two years.” 42 Stat. 2264.
Bouvier defines “extraterritorial” as “jurisdiction exercised by a nation in other countries by treaty, as, by the United States in China. * *. *” Comp. St. §§ 7633-7635, 7638, prоvide that such jurisdiction be exercised by ministers and consuls of the United Stаtes to carry into effect the provisions of the treaty conferring power to arraign and try all citizens of the United States charged with offenses against the laws of China, and punishment for the same, full jurisdiction in controversies between citizens of the United States and others, and that such jurisdiction shall be exercised in conformity with the laws of the United States, which are extended over all citizens of the Unitеd States -in such country.
By Act June 30, 1906 (section 7688, C. S.), a United States court for China was established, and by act supra (section 7689) appeals and writs of error from the consular court to the United States Circuit Court of Appeals of the Ninth Circuit are provided for. The President had рower and jurisdiction conferred by such resolution, supra, and section 7678, C. S., provides for the punishment, as stated in the proclamatiоn. It was not necessary to set out the presidential proclamation in the indictment. The court takes judicial notice of the rulеs and regulations prescribed by the Executive Department. Caha v. U. S.,
The further objection that the indictment merely charges an attеmpt, and not a con-, summated offense, is more serious. The act provides a penalty for any one who “exports any arms or munitions of war in violation of section 1,” etc. It seems clear thаt this section has relation only to the consummated offense. Thеre is no penalty for attempting to export. The “attempt” is not “itself a separate offense,” and hence not within section 1035, R. S. (Comp. St. § 1701), which provides that a party charged with the commission of a crime “may be found guilty of an attempt to commit the offensе so charged, provided, that such attempt be itself a separate offense. ’ ’
The indictment does not charge the commission of a crime, but only an attempt to commit, which is not “itself a separate offense.” The motion to quash is granted.