Clayton v. State

Decision Date19 December 1932
Docket NumberCrim. 3823
Citation55 S.W.2d 88,186 Ark. 713
PartiesCLAYTON v. STATE
CourtArkansas Supreme Court

Appeal from Howard Circuit Court; A. P. Steel, Judge; affirmed.

Judgment affirmed.

Tom Kidd, for appellant.

Hal L Norwood, Attorney General, and Pat Mehaffy, Assistant, for appellee.

OPINION

MEHAFFY, J.

Paul Clayton was indicted, tried and convicted in the Howard Circuit Court for causing an abortion. The indictment omitting the formal part, reads as follows: "The said Paul Clayton in the county and State aforesaid, on the 30th day of June, 1932, did unlawfully and feloniously administer and prescribe to one Eunice Burk, a woman with child, before the period of quickening, a quantity of drugs and medicine with intent then and there and thereby to produce an abortion, against the peace and dignity of the State of Arkansas."

Mrs Nona Burk, the mother of Eunice Burk, testified that Eunice was 17 years old at the time of her death. Paul Clayton was paying her attention. Witness did not know that her daughter was sick until Saturday after she had gotten sick on Friday. She had left home and had gone to another daughter of witness at Center Point. Witness testified that she had physicians to attend her; that Paul Clayton came on Sunday evening and brought some medicine. Dr. Roberts wrote a prescription, and Paul Clayton had it filled and brought it up there. Witness said that Clayton asked her if the doctor told her what he had written the prescription for, and witness told him that he had not. Clayton said your daughter has blood poison, and that he had some medicine that might do her good. He stayed all night, and said he would take her to the hospital. Her daughter said she was going to die. Did not see the medicine he fixed up, but was in the room when he attempted to give it to her. This was after the abortion had occurred. The medicine which was brought had been prescribed by Dr. Roberts and Dr. Storey. Witness did not know of any medicine that Clayton had there.

Veda Kelley, a sister of Eunice Burk, testified that she lived at Center Point in June and July; that Eunice Burk was her sister and 16 years old. Eunice died at witness' home. She came there on the 7th day of June and died on the 17th of July. Paul Clayton came there while she was there and stayed ten or fifteen minutes. Eunice was in bed. He came up two weeks before she was taken sick and carried her off and was gone about an hour. He gave her some medicine on the porch and told her to take it if what he did didn't do her any good. Witness saw him give her the medicine; did not hear him say anything else. This was about two weeks before she got sick. Eunice left witness' house and came back on June 7. She ate supper and went to bed. The foetus passed Saturday evening and night. Clayton stated that he was responsible for her condition. She was on the porch when Paul gave her the medicine, and witness was standing in the front room. She could see them, but they could not see her. There was a little morphine tablet colored green and white about the size of an aspirin tablet. She got in a car and went off with Clayton about two weeks before she got sick. We went to see Dr. Storey. She came back on Friday and took her bed, and on Saturday evening gave birth to the child. Dr. Storey treated her about a week and then Dr. Roberts was called. They had a consultation and prepared the prescription, that is the medicine which Clayton brought up there. There was a bottle and some tablets Dr. Roberts prescribed. Clayton had some more.

Dr. Storey testified that he had been practicing medicine for 27 years; had occasion to treat women with child; was a graduate of the School of Medicine of Memphis. Treated Eunice Burk on June 10 at his office. Examined her and found a mess or something inside her womb and it was soft doughy, and made a vaginal examination and introduced a speculum and found there a condition of puss and bloody water coming from the womb; took a syringe, washed it out and sterilized it with iodine. She was with child and the foetus was dead. He was called to see her Saturday and was back Monday, and the foetus had passed. In his opinion the foetus had been dead about a month or six weeks. There is a drug which will produce the death of the foetus. Witness continued to treat the girl until about two weeks before her death. Dr. Roberts and Dr. Chambers and his son were there. Witness testified that there is a drug which will produce an abortion, and that he could name and describe it. Witness had been treating Mrs. Kelley for two or three years, but saw Eunice Burk the first time on June 9. He had never treated Eunice before this time.

Mrs. Joe Head testified in substance that she had known Eunice Burk prior to her death; had known her about four weeks; that Mr. Sheffield carried her to the home, and she remained there until Eunice died. She went there on Sunday, and part of the foetus was removed by Dr. Roberts and Dr. Chambers on Monday. Clayton came up there to bring some medicine which Dr. Roberts had prescribed. Clayton told witness he was responsible for the girl's condition; he did not say he was responsible for the abortion. Witness is not a registered nurse.

Dr. Roberts testified that he lives in Nashville, and is a graduate of the University of Arkansas, and has practiced medicine 34 years; he was called to see Eunice Burk Sunday evening June 19, and found an incomplete abortion; administered to her for blood poisoning; went back Monday and made an examination and found that part of the bones of the skull had not passed and removed them; did not attend her any more. It is a very rare thing that medicine administered to a mother will cause abortion. There is a drug, supposed to be, when administered in enormous doses will produce an abortion, but the chances are it will kill the mother. If it causes sufficient pain to rupture the membrane, the foetus would die and pass out, and, if it did not pass out, it would become decomposed. If an abortion had been caused by the use of instruments and the foetus had failed to pass, a condition would be like witness found there. An abortion is usually done by dilating the mouth of the uterus and introducing instruments. Witness received information that the foetus passed about eight days before he performed the operation.

Dr. W. H. Chambers testified substantially to the same facts as the other physicians.

There was some evidence introduced as to the credibility of the witnesses.

Sheriff Wilson testified about making a search of the home of Roy Ferguson, where Eunice Burk's mother lived.

Harold Cornish testified that he carried the mail from Dierks to Nashville, and that he remembered carrying Eunice Burk from Center Point to Dierks.

Dr. W. B. Simpson testified in substance that he lives in Nashville, been practicing medicine 33 years; graduate of Tulane University, New Orleans; had treated women for female diseases; did not know of any drug which would cause an abortion. Medical science does not teach there is a drug that will cause an abortion. Any doctor knows that when a woman is four or five months pregnant there is no drug that will cause an abortion.

Mrs. Nora Burk was recalled and testified that she knew an abortion had been caused on her girl.

There was some evidence introduced by the State in rebuttal. The case is here on appeal.

There was a verdict of guilty fixing punishment of appellant at a fine of $ 50 and one year in the penitentiary, and judgment was entered accordingly.

Appellant first contends that the court erred in not granting his motion to require the State to elect upon which charge it would prosecute, that is, for procuring medicine or prescribing medicine. He alleges that the indictment charged two offenses, and cites and relies on Gramlich v. State, 135 Ark. 243, 204 S.W. 848. In that case appellant had been indicted for the crime of manufacturing intoxicating liquor and being interested in the manufacture of liquor. The court in that case, however, did not hold that the indictment charged two offenses, but held that it was not defective because it charged two offenses conjunctively. The indictment in the case at bar does not charge two offenses. It charges one offense, but charges that the crime was committed by administering and prescribing. It was proper to charge the offense as it is charged in this indictment, and proof of either administering or prescribing would sustain the charge. An indictment in the same language here used was upheld in the case of State v. Reed, 45 Ark. 333. One might be charged with administering and prescribing, and it might be shown in evidence that he did both. The statute provides that it shall be unlawful for any one to administer or prescribe any medicine, etc., and it was proper to charge the offense as having been committed by prescribing and administering.

It is next contended that the court erred in refusing to permit Dr Storey to testify and to tell the name of the drug which would cause an abortion. The appellant could not have been prejudiced by failure to name the drug because all that he claims that he could have shown by...

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10 cases
  • Walker v. State, 5186
    • United States
    • Arkansas Supreme Court
    • 31 de outubro de 1966
    ...a new trial. The matter still rests within the sound discretion of the Court. Little v. State, 161 Ark. 245, 255 S.W. 892; Clayton v. State, 186 Ark. 713, 55 S.W.2d 88; Sutton v. State, 197 Ark. 686, 122 S.W.2d 617; Puterbaugh v. State, 217 Ark. 686, 232 S.W.2d 984; and Hicks v. State, 219 ......
  • Sutton v. State
    • United States
    • Arkansas Supreme Court
    • 14 de novembro de 1938
    ...we review and reverse his action in that behalf only where it is made to appear that this discretion has been abused. Clayton v. State, 186 Ark. 713, 722, 55 S.W.2d 88. In view of the fact that the recanting witness was not brought into court for examination as to the circumstances relating......
  • Sutton v. State
    • United States
    • Arkansas Supreme Court
    • 14 de novembro de 1938
    ... ... discretion abides in the trial judge in granting or in ... refusing to grant a new trial on account of [197 Ark. 692] ... newly-discovered evidence, and we review and reverse his ... action in that behalf only where it is made to appear that ... this discretion has been abused. Clayton v ... State, 186 Ark. 713, 55 S.W.2d 88 ...          In view ... of the fact that the recanting witness was not brought into ... court for examination as to the circumstances relating ... ...
  • McClure v. State
    • United States
    • Arkansas Supreme Court
    • 22 de novembro de 1948
    ... ... criminal abortion have been in cases where medicine or drugs ... have been administered or prescribed: State v ... Reed, 45 Ark. 333; Burris v ... State, 73 Ark. 453, 84 S.W. 723; Davis v ... State, 96 Ark. 7, 130 S.W. 547; Winfrey v ... State, 174 Ark. 729, 296 S.W. 82; Clayton ... v. State, 186 Ark. 713, 55 S.W.2d 88; ... Thompson v. State, 163 Ark. 662, 260 S.W ...          In ... Burris v. State, supra, this court ... went to considerable length in treating of the word ... "administer," saying that the word as used in the ... statute does not signify ... ...
  • Request a trial to view additional results
1 forms
  • 08 58 MOTION FOR NEW TRIAL
    • United States
    • Arkansas Bar Association Arkansas Form Book Chapter 8 CRIMINAL PROCEDURE
    • Invalid date
    ...reasons: [(a) The prosecution's sole and main witness has recanted [his/her] testimony, § 16-89-130(c)(6-7). See, e.g., Clayton v. State, 186 Ark. 713, 55 S.W.2d 88 (1932); Cooper v. State, 246 Ark. 368, 438 S.W.2d 681 (1969) (apparently recognizing rule).] [(b) The verdict is against the l......

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