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U.S. Supreme Court

Westmoreland v. United States, 155 U.S. 545 (1895)

Westmoreland v. United States

No. 765

Submitted December 10, 1894

Decided January 7, 1895

155 U.S. 545


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."

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