State v. Ackley

• Decision Date: 15 February 1916
• Docket Number: No. 19306.,19306.
• Citation: 183 S.W. 291
• Parties: STATE v. ACKLEY.
• Court: Missouri Supreme Court

183 S.W. 291

STATE v. ACKLEY.

No. 19306.

Supreme Court of Missouri, Division No. 2.

February 15, 1916.

Appeal from Criminal Court, Jackson County; Ralph S. Latshaw, Judge.

F. E. Ackley was convicted of manslaughter in the second degree, and he appeals. Reversed and remanded.

Defendant was convicted of manslaughter in the second degree, and sentenced to 5 years in the penitentiary.

The information charged that about December 27, 1912, he performed an operation in and upon the body of Clara Schwenk, a pregnant woman, causing an abortion and the death of said woman. The information was sufficient in every way, except that it did not charge that the operation was not necessary to preserve the life of an unborn child.

Clara Schwenk, a young girl, in apparently good health, about December 17, 1912, became an inmate of Mrs. Minton's rooming house in Kansas City. She began at once to take treatment from defendant, who was a physician. Mrs. Minton testified that after the first treatment she was disturbed and nervous, and thereafter became weaker and more nervous each day, but continued to go out daily until Saturday. On that day her condition became so grave that she was sent to the hospital, but was at once sent back for reasons not given. She was then too weak to stand. She was nervous and crying. As to her condition Mrs. Minton testified:

"Q. Tell the jury whether or not she said anything to you about her going to die? A. Yes; she thought she was going to die. Q. I want to ask the lady whether or not this girl told her she was going to die? A. Yes, sir. Q. Go ahead and tell the jury what she said? A. She said she did not think she was going to live; she realized her condition."

And she further testified that Clara Schwenk then stated that she had been pregnant, and that the defendant had operated on her. She died the next evening just before 6 o'clock. The autopsy revealed that her womb had been punctured by an instrument, and that she died of septic peritonitis. Mrs. Minton testified that an odor came from her for several days before she died. She also testified to incriminating admissions made by defendant and to attempts on his part to conceal the death and his connection with it.

Ida J. Cummings testified by deposition for the defendant. She kept a rooming house in Kansas City at the time of Clara Schwenk's death, but was living in Rosedale, Kan., at the time of the trial. Her evidence tended to prove that she went with Clara Schwenk to defendant's office in order that deceased might be treated; that deceased had then been operated on by a Dr. Smith; and that defendant refused to treat her. Counsel for the state in his argument to the jury referred to the witness Cummings thus:

"And contradicting that and contradicting Dr. Ackley's own statement to Mrs. Minton is only this ridiculous and outrageous statement made by this fugitive over here in Rosedale in the shape of a deposition."

On defendant's objection to such statement the court struck it out, but refused, on defendant's request, to reprimand state's counsel, saying, "I do not think there is any occasion for reprimanding counsel."

There was no evidence in the case tending to show that the witness was a fugitive, nor was she directly impeached.

Dr. Paul Smith testified that deceased lived at his house in Kansas City, and that once while there she had cramps at her monthly period. He was not asked whether he treated her.

Wofford & Kimbrell and Calvin & Rea, all of Kansas City, for appellant. John T. Barker, Atty. Gen., and Lee B. Ewing, Asst. Atty....