An averment in an indictment for murder that the defendant is "a
white person and not an Indian" is sufficient to show that he is
outside of the first two clauses of Rev.Stat. § 2146.
Page 155 U. S. 546
An averment in an indictment that the defendant was not a
citizen of the Indian Territory will be sustained as a sufficient
averment that he does not come within the provisions of Article 38
of the Treaty of April 28, 1866, with the Choctaws and Chickasaws,
14 Stat. 769, 779, when no challenge of the indictment in this
respect is made prior to the trial and the question is only made by
motion in arrest of judgment.
A charge in an indictment which charges that the defendant
administered to the deceased strychnine and other poisons with the
unlawful and felonious intent to take his life, and that so
administered they did have the effect of causing death, is
sufficient.
In charging the causing of death by poisoning, it is unnecessary
to aver that the poison was taken into the stomach of the
deceased.
On June 16, 1894, the plaintiff in error was adjudged guilty of
the crime of murder by the Circuit Court of the United States for
the Eastern District of Texas, and sentenced to be hanged. This
sentence has been brought to this Court for review by writ of
error. The record contains only the indictment, the judgment, and
the motion in arrest thereof. The indictment charges:
"That one Thomas Westmoreland, a white person, and not an
Indian, nor a citizen of the Indian Territory, late of Pickens
County, Chickasaw Nation, Indian Territory, in the district and
circuit aforesaid, on the fifteenth day of June in the year of our
Lord eighteen hundred and ninety-three, in Pickens County, in the
Chickasaw Nation, in the Indian Territory, the same being annexed
to and constituting a part of the said Fifth Circuit, and annexed
to and constituting a part of the Eastern District of Texas for
judicial purposes, and being within the jurisdiction of this Court,
did unlawfully, fraudulently, and feloniously, and with his malice
aforethought, and with certain drugs and poisons, to-wit,
strychnine and certain poisons to the grand jurors unknown, then
and there given and administered by the said Thomas Westmoreland to
one Robert Green with the unlawful and felonious intent of the said
Thomas Westmoreland then and there to take the life of him, the
said Robert Green."
"And he, the said Thomas Westmoreland, did then and there, by
administering the said poison as aforesaid, unlawfully, knowingly,
and feloniously poison him, the said Robert
Page 155 U. S. 547
Green, from the effects of which said poison he, the said Robert
Green, did languish, and languishing did then and there die, on the
fifteenth day of June, A.D. eighteen hundred and ninety-three, and
within a year and a day from said date."
"And the said grand jurors aforesaid, upon their oaths
aforesaid, do say that upon the day aforesaid at the place
aforesaid, with said poison aforesaid, used as aforesaid, and in
the manner aforesaid, the said Thomas Westmoreland did unlawfully,
feloniously, and with his malice aforethought, kill and murder the
said Robert Green, the said Thomas Westmoreland and he, the said
Robert Green, being then and there white persons, and not Indians,
nor citizens of the Indian Territory, contrary to the form of the
statute in such cases made and provided, and against the peace and
dignity of the United States of America."
MR. JUSTICE BREWER, after stating the facts in the foregoing
language, delivered the opinion of the Court.
It is not denied that the Circuit Court for the Eastern District
of Texas has jurisdiction over offenses against the laws of the
United States committed in that portion of the Indian Territory
described in the indictment, Act of March 1, 1889, c. 333, 25 Stat.
783, 786, §§ 17, 18, but it is insisted that by section
2146, Rev.Stat., such jurisdiction does not
"extend to crimes committed by one Indian against the person or
property of another Indian, nor to any Indian committing any
offense in the Indian country who has been punished by the local
law of the tribe, or to any case where, by treaty stipulations, the
exclusive jurisdiction over such offenses is or may be secured to
the Indian tribes respectively,"
and that no indictment can be held sufficient which does not
expressly negative the exceptions contained in this section.
See also
Page 155 U. S. 548
26 Stat. 94, c. 182, § 30;
In re Mayfield,
141 U. S. 107. The
defendant and the deceased are described as "white persons, and not
Indians, nor citizens of the Indian Territory." The first clause in
section 2146 is taken from the twenty-fifth section of the Act of
June 30, 1834. c. 161, 4 Stat. 729, 733, and it was held in
United States v.
Rogers, 4 How. 567,
45 U. S. 573,
that adoption into an Indian tribe did not bring the party thus
adopted within the scope of such exception, the Court saying:
"Whatever obligations the prisoner may have taken upon himself
by becoming a Cherokee by adoption, his responsibility to the laws
of the United States remained unchanged and undiminished. He was
still a white man, of the white race, and therefore not within the
exception in the act of Congress."
The term "Indian" in section 2146 is one descriptive of race,
and therefore the defendant, described as a white man, and not an
Indian, is shown to be outside the first two clauses of section
2146.
But it is insisted that Article 38 of the Treaty with the
Choctaws and Chickasaws of April 28, 1866, 14 Stat. 769, 779,
provides that
"every white person who, having married a Choctaw or Chickasaw,
resides in the said Choctaw or Chickasaw Nation or who has been
adopted by the legislative authorities is to be deemed a member of
said nation, and shall be subject to the laws of the Choctaw and
Chickasaw Nations according to his domicile, and to prosecution and
trial before their tribunals, and to punishment according to their
laws in all respects as though he was a native Choctaw or
Chickasaw,"
and that therefore the indictment should also negative the
conditions of this article. But it is charged that the defendant
and the deceased were not "citizens of the Indian Territory." Force
must be given to this term in the indictment, and, while it may be
conceded that it is not the most apt to describe citizenship in an
Indian tribe, yet it is not an unreasonable construction to hold
that it refers to all citizenship which could possibly be acquired
in the Indian Territory, including therein citizenship in any
Indian tribe domiciled within such limits. At least, as no
challenge was made of the indictment prior to the trial and the
question was only
Page 155 U. S. 549
raised by motion in arrest, and as, further, that which was
intended is obvious, it is fair to rule that any merely technical
defect in this language was cured by the verdict.
Again, it is objected that the indictment is insufficient in
that it fails to allege that the defendant knew that that which he
is charged to have administered to the deceased was a deadly
poison, and also that the poison was taken into the stomach of the
deceased. Neither of these objections is well taken. It is charged
that he administered the strychnine and other poisons with the
unlawful and felonious intent to take the life of the deceased, and
that, so administered, they did have the effect of causing death.
It matters not whether he knew the exact character of the
strychnine or other poisons. It was murder if he unlawfully and
feloniously administered any poison with the design of taking life
and that which he so administered did produce death. At the common
law, though it was necessary to allege the kind of poison
administered, nevertheless proof of the use of a different kind of
poison was regarded as an immaterial variance.
"If A. be indicted for poisoning of B., it must allege the kind
of poison, but if he poisoned B. with another kind of poisoning,
yet it maintains the indictment, for the kind of death is the
same."
2 Hale P.C. 185; 2 Bishop Crim.Pro. §§ 514, 555. So
also it is unnecessary to aver that the poison was taken into the
stomach of the deceased. The crime would be complete if the poison
was by hypodermic injection, or otherwise, introduced into the body
of the deceased, and, affecting the heart or other organ, caused
the death. The indictment need not specify in detail the mode in
which the poison affected the body or the particular organ upon
which its operation was had. It is enough to charge that poison was
administered, and that such poison, so administered, caused the
death.
These are all the objections made to the indictment, and, as its
sufficiency is the only question presented for consideration, it
must be held that no error is apparent in the record, and the
judgment is
Affirmed.
