McClure v. State

Decision Date22 November 1948
Docket Number4528
Citation215 S.W.2d 524,214 Ark. 159
PartiesMcClure v. State
CourtArkansas Supreme Court

Rehearing Denied January 3, 1949.

Appeal from Greene Circuit Court; Zal B. Harrison, Judge.


Wils Davis, Claude F. Cooper, Horace W. Whitsett and J J. Mardis, for appellant.

Guy E. Williams, Attorney General and Oscar E Ellis, Assistant Attorney General, for appellee.


Wine, J.

The appellant, Dr.

G. R. McClure, was indicted by the Grand Jury of Greene county, the charging part of the indictment reading as follows: "The said Dr. G. R. McClure in Greene County, Arkansas, did on the 7th day of May, 1947, unlawfully, willfully and feloniously, while engaged in the practice of medicine, aid, abet and assist in the commission of an abortion upon one Allene Janes, which abortion was not produced for the purpose of saving the life of the said Allene Janes against the peace and dignity of the State of Arkansas."

At the trial of the case the jury found the appellant guilty and assessed his punishment at confinement in the State Penitentiary for a period of one year. Section 1, Act 4 of 1875, § 3286, Pope's Digest, reads as follows: "It shall be unlawful for any one to administer or prescribe any medicine or drugs to any woman with child, with intent to produce an abortion or premature delivery of any fetus before the period of quickening, or to produce or attempt to produce such abortion by any other means; and any person offending against the provisions of this section shall be fined in any sum not exceeding one thousand dollars, and imprisoned in the penitentiary not less than one nor more than five years. Provided, this section shall not apply to any abortion produced by any regular practicing physician for the purpose of saving the mother's life."

Section 25, Initiated Act No. 3 of 1936 (Acts 1937, p. 1384) provides: "The distinction between principals and accessories before the fact is hereby abolished, and all accessories before the fact shall be deemed principals and punished as such. In any case of felony, when the evidence justifies, one indicted as principal may be convicted as an accessory after the fact; if indicted as accessory after the fact, he may be convicted as principal."

Encyclopedia Americana defines abortion: "The expulsion of a fetus from the uterus before it is capable of carrying on its own life."

Medical Jurisprudence, Forensic Medicine and Toxicology, Witthaus & Becker, Vol. II, in its treatise on criminal abortion states in part: "According to the law in the United States, any person who does any act calculated to prevent a child being born alive is guilty of abortion."

In Taylor's Med. Jurisp. 11th Am. Ed., p. 526, Clark Bell, the American editor, refers to a number of American decisions illustrating various interpretations of the law as laid down in different states of the union.

In considering a case of alleged abortion, four main questions suggest themselves:

1. Has abortion taken place?

2. If so, was it spontaneous (from natural causes) or induced. (By the intentional act of the mother or any other person)?

3. If intentionally induced, was the act justifiable or criminal?

4. Did the induced abortion injure health or destroy life?

It is not disputed that Allene Janes died as a result of an abortion performed upon her.

It was the testimony of Willene Shoultz, sister of the deceased Allene Janes, State's witness, that she, Willene Shoultz, accompanied her sister Allene Janes to the hospital owned and operated by the appellant in Paragould on May 5, 1947, where Allene Janes talked with the appellant for the purpose of inducing appellant to produce an abortion, she being pregnant with child; that appellant directed her to Dr. Boyd, Blytheville, Arkansas, with further directions that after her visit to Dr. Boyd, she should return directly to appellant's hospital to be cared for by appellant. Allene Janes inquired of appellant what process Dr. Boyd used, that she was afraid of a catheter, and also inquired as to the extent of the pain that she might reasonably expect. Appellant replied ". . . he (appellant) had sent a million over there and hadn't lost a patient yet and he said she would not have any pain while she was in his hospital; that he would give her penicillin shots to keep down inflammation and for her to come directly back and he would put her to bed."

This witness testified she was in the hall directly outside the door of the doctor's (appellant's) office at the time of this conversation. This witness further testified that on the seventh day of May, 1947, Allene Janes, together with her former husband, Donald Janes, his sister, Lavanna Clark, Lavanna Clark's husband, Leon Clark and this witness, drove to Blytheville where Allene Janes paid a visit to the office of Dr. Boyd, who performed an operation for the purpose of producing an abortion and heavily packed her with gauze, that Allene Janes, together with the other parties mentioned, immediately returned to Paragould, a distance of approximately 50 miles, arriving there about 12 or 12:30 noon. Allene Janes went directly to appellant's hospital where she remained about ten minutes before going to her home, returning to the appellant's hospital, to which she walked, about 2:30 or 3:00 p. m. Witness next saw Allene in bed at appellant's hospital about 7:00 p. m., where she "acted naturally." Witness returned to appellant's hospital about 9:00 p. m. to find her sister, Allene, in pain. Appellant was not present when witness returned at 9:00 p. m., but the nurses were giving "shots" to Allene. Witness asked the nurses in attendance to call the doctor, to which one nurse replied they "wanted everything to move naturally," but Allene's pain became so intense that the doctor was called. Later that night the abortion was completed by the passage of the gauze packing and about a two-month-old fetus. This witness was corroborated as to the trip to Blytheville and return to appellant's hospital by Lavanna Clark and Donald Janes, the admissibility of whose testimony will be further discussed.

State's witness, John Shoultz, testified that he was the father of the deceased Allene Janes, who was 23 years of age at the time of her death; that she had been married to Donald Janes and from that union four children were born and that the deceased, Allene Janes, prior to her death was in good health, medium size, weighing approximately 120 pounds and, according to her size, she was a strong woman.

This witness further testified that upon being notified of his daughter's condition, he went to appellant's hospital about 2:00 a. m., May 8, 1947, for the purpose of moving his daughter from McClure's Hospital to Dixon's Memorial Hospital. Upon his arrival, he found appellant seated by the bedside of Allene Janes; that appellant protested the moving of Allene Janes, but witness was unrelenting. Appellant then insisted that witness sign "some papers," a release, in the following words and figures:

"Paragould Hospital

Dr. G. R. McClure, Chief of Staff

Paragould, Arkansas

May 8, 1947

To whom it may concern: This is to certify that I, John Shoultz, Route No. 5, Paragould, Arkansas, being the father of Allene Janes, am signing this release for her and removing this patient from the Paragould Hospital without the permission and against the advice of Dr. G. R. McClure or Dr. F. A. Poe, and will not hold liable Dr. G. R. McClure, Dr. F. A. Poe, the Paragould Hospital, or its employees for the condition of Allene Janes or the outcome of her removal. (Signed) John Shoultz.

"Witnesses: (Signed) Willene Shoultz, Marguerite Maraman, Ruby Parker."

In addition to this release from John Shoultz, appellant simultaneously with or very soon after admitting Allene Janes to the hospital on the afternoon of May 7, 1947, took from her a release and rendered her a statement in the following words and figures:

"Paragould Hospital

Dr. G. R. McClure, Chief of Staff

Paragould, Arkansas

May 7, 1947

"To whom it may concern: This is to certify that I, Allene Janes, Route No. 5, Paragould Arkansas, will not hold liable the Paragould Hospital, Dr. G. R. McClure, or any employee of Dr. McClure for the outcome of my case. I realize that it is a dangerous case and certify that I was in a serious condition when I entered the Paragould Hospital. I further state that neither Dr. McClure nor any employee of his had anything whatsoever to do with my condition when I entered the Paragould Hospital. (Signed) Allene Janes.

"Witnesses: (Signed) Marguerite Maraman, Ruby Parker, May Pepper."

* * *

"Statement of Account With

Paragould Hospital

Dr. G. R. McClure, Chief of Staff

Paragould, Arkansas

May 7, 1947

To Allene Janes



Hospitalization and care

$ 50.00


$ 50.00

Balance Amt. Due

$ 50.00"

It would serve no useful purpose to set out the gory details testified to by witnesses as to the exploratory expedition of appellant into the abdomen of deceased Allene Janes, but the essential portions and results of such expedition will be further treated of with relation to the testimony of Dr. Poe, who was called in by members of the deceased Allene Janes' family, and who, upon being advised that it was agreeable with appellant, came in as a consultant in the case. Dr. Poe testified that he had formerly been on the staff of Dr. McClure's Clinic; had been there many times as a consultant on different cases that Dr. McClure is a professional friend of his and that he recalls being called to Dr. McClure's Clinic about midnight on May 7, 1947, where he saw Allene Janes; made no physical or manual examination of her; merely took her pulse and observed her; did not examine her female...

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