Feige v. State

Decision Date30 April 1917
Docket Number350
PartiesFEIGE v. STATE
CourtArkansas Supreme Court

Appeal from Garland Circuit Court; Scott Wood, Judge; reversed.

Cause reversed and remanded.

O. H Sumpter, for appellant.

1. The court erred in instructing the jury and in refusing the instructions requested by the defendant. A mere mistake or error of judgment, or a mere want of skill, where there is not gross negligence or ignorance, will not render a practitioner liable. 21 Cyc. 769; 38 Ark. 605. The first second, third and fourth were error.

2. The fifth, as to the punishment, was error. Kirby's Dig § 2408. The jury should have been left to fix the penalty. 12 Cyc. 611, 641-2.

3. It was error to refuse defendant's requests Nos. 1 to 10. 12 Cyc. 384-5, 621-2; 59 Ark. 431; 64 Mich. 693; 8 Am. St. 863; 21 Cyc. 769; 38 Ark. 605.

4. The court erred in admitting and excluding evidence. Extracts from standard medical works are admissible. 3 McFadden Physical Culture, 1224-8, 1237-9, 1243, 1270, 1275, 1283 etc, 1298-9, 1315-17.

5. The evidence was insufficient and the verdict contrary to the evidence. 3 Greenl., Ev., §§ 129-9; 38 Ark. 605; Stewart Legal Medicine, p. 292-3, 57, 263-4.

John D. Arbuckle, Attorney General, and T. W. Campbell, Assistant, for appellee.

1. The instructions given were not erroneous. Kirby's Digest, § 1779, 5243; 64 Ark. 247; 69 Id. 558; 16 Id. 628; 78 Id. 132; 85 Id. 179; 82 Id. 64; 78 Id. 147. The remarks of the prosecuting attorney were not improper. 95 Ark. 321; 58 Id. 353; Ib. 473; 94 Id. 514. Nor were they prejudicial, and the court promptly cured any possible prejudice.

2. It was not error to refuse to permit to be read extracts from McFadden's Work on Physical Culture. It is not a recognized authority. 110 Ill. 219; 67 Cal. 13; 149 Mass. 68; 84 Mich. 676; 60 Miss. 460; 7 R. I. 336; 44 S.W. 513; 38 Md. 15; 77 N.C. 55.

3. The evidence fully supports the verdict, and the finding of the jury is conclusive. 95 Ark. 172; 104 Id. 162; 101 Id. 51; 100 Id. 330.

OPINION

HUMPHREYS, J.

Appellant was indicted at the March, 1916, term of the Garland Circuit Court for the crime of manslaughter, and at the September term thereof was tried and convicted on said charge and his punishment fixed by the jury at imprisonment in the State penitentiary for a period of twelve months. He filed his motion for a new trial, which was overruled, after which judgment was rendered and sentence imposed, from which judgment and sentence he has appealed to this court.

J. R. Stratton, who had been stricken with paralysis, employed appellant to treat the disease according to a fasting and water cure, which was being practiced by appellant. The fasting and water cure, practiced by appellant on his patients, required the patient to totally abstain from the use of foods, and drink all the water possible. Appellant took J. R. Stratton through a thirty-five-day fast. Stratton was seized with a severe attack of hiccoughs during the last seventy-five hours of the fast, and in order to relieve him and prevent death therefrom, appellant placed a wide leather strap around his body and buckled it up as tight as he could draw it. Mrs. Stratton became alarmed and insisted upon calling in other physicians. Appellant protested and insisted that he be permitted to continue the fasting and water cure. After consulting friends, Mrs. Stratton decided to call in other physicians. Appellant reluctantly yielded, and when the physicians came, advised against the use of a stimulant or strong medicines and rich foods. Appellant was discharged and Doctors Cox and Smith were employed. When they took charge of the patient, he was in a semi-coma, his pulse was weak, fast and intermittent. They gave him a hypodermic of sparteine and then treated him for hiccoughs and a weakened condition. He recovered from the hiccoughs but never recovered from the weakened condition and died at the expiration of five days.

The evidence on the part of the State tended to show that the treatment prescribed and administered to J. R. Stratton by appellant was irrational, unreasonable unscientific and was the proximate cause of his death.

The evidence on the part of appellant in a measure tended to show that the fasting and water cure, as practiced by him, was rational, reasonable and scientific and had wrought wonderful cures, and that it might have worked a cure on Stratton had he been permitted to continue the fast.

The cause was submitted to the jury on the theory that one who practices medicine for a remuneration would be guilty of involuntary manslaughter if death resulted to the patient on account of gross ignorance or lack of skill in selecting and administering the remedy. The instruction embodying this idea correctly declared the law as applicable to the theory advanced by the State.

The appellant's theory was to the effect that the remedy chosen was rational, reasonable and scientific; that the remedy chosen had been administered in a skillful manner; that the same remedy administered in the same way by him to other patients had greatly benefited and cured them; that this remedy had been selected and administered in good faith, believing it would cure the patient; that it was not the proximate cause of the death of J. R. Stratton, but if it were, that it was a mistake of judgment and not the result of gross ignorance and unskillful treatment on his part.

This court said in the case of State v. Hardister and Brown, 38 Ark. 605, quoting the syllabus: "For a mere mistake of judgment in the selection and application of remedies, resulting in the death of his patient, a physician is not criminally liable; but when death is caused by gross ignorance in the selection or application of remedies, by one grossly ignorant of the art he assumes to practice, he is criminally liable."

None of the instructions given clearly present the theory of appellant. Evidence was adduced at the trial showing that appellant possessed in a degree both knowledge of and skill in the use of the fasting and water cure, and that he had practiced it successfully. The evidence in the record warranted an instruction allowing for a mistake in judgment. Appellant was at least entitled to an instruction defining the difference between a felonious lack of knowledge and skill, on the one hand, and a mere mistake of judgment, on the other. In other words, the jury should not have been left in a position to confuse a mistake of judgment with gross ignorance or lack...

To continue reading

Request your trial
9 cases
  • State v. McMahan
    • United States
    • Idaho Supreme Court
    • 16 Enero 1937
    ... ... 483; Commonwealth v. Thompson, 6 ... Mass. 134; Commonwealth v. Pierce, 138 Mass. 165, 52 ... Am.Rep. 264; Rice v. State, 8 Mo. 561 (403); ... State v. Schulz, 55 Iowa 628, 8 N.W. 469, 39 Am.Rep ... 187; State v. Hardister and Brown, 38 Ark. 605, 42 ... Am.Rep. 5; Feige v. State, 128 Ark. 465, 194 S.W ... 865; Hampton v. State, 50 Fla. 55, 39 So. 421; ... State v. Tankersley, 172 N.C. 955, 90 S.E. 781, ... L.R.A.1917C, 533; State v. Lancaster, 208 N.C. 349, ... 180 S.E. 577; Fitzgerald v. State, 112 Ala. 34, 20 ... So. 966; Omaha & R. V. R. Co. v ... ...
  • State v. McMahan
    • United States
    • Idaho Supreme Court
    • 16 Enero 1937
    ...(403); State v. Schulz, 55 Iowa 628, 8 N.W. 469, 39 Am.Rep. 187; State v. Hardister and Brown, 38 Ark. 605, 42 Am.Rep. 5; Feige v. State, 128 Ark. 465, 194 S.W. 865; Hampton v. State, 50 Fla. 55, 39 So. 421; State v. Tankersley, 172 N.C. 955, 90 S.E. 781, L.R.A.1917C, 533; State v. Lancaste......
  • State v. Mcmahan
    • United States
    • Idaho Supreme Court
    • 16 Enero 1937
    ...561; State v. Schulz, 55 Iowa 628, 8 N.W. 469, 39 Am. Rep. 187; State v. Hardister and Brown, 38 Ark. 605, 42 Am. Rep. 5; Feige v. State, 128 Ark. 465, 194 S.W. 865; Hampton v. State, 50 Fla. 55, 39 So. 421; v. Tankersley, 172 N.C. 955, 90 S.E. 781, L. R. A. 1917C, 533; State v. Lancaster, ......
  • State v. Catellier
    • United States
    • Wyoming Supreme Court
    • 7 Abril 1947
    ...Mutual Life Insurance Company vs. Ellis, admr., 89 Ill. 516; Scullin et al. vs. Vining, 127 Ark. 124, 191 S.W. 924; Feige vs. State, 128 Ark. 465, 194 S.W. 865; Wharton & Stille's Medical Jurisprudence, 3, 597. think the assignment of error in this connection must be overruled. V. Practice ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT