State v. Clark
Decision Date | 08 July 1921 |
Docket Number | No. 22634.,22634. |
Citation | 232 S.W. 1031,288 Mo. 659 |
Parties | STATE ex rel. JOHNSON v. CLARK et al., State Board of Health. |
Court | Missouri Supreme Court |
Appeal from Circuit Court, Cole County; J. G. Slate, Judge.
Certiorari by the State, on the relation of Herbert E. Johnson, against Dr. W. A. Clark and others, constituting the State Board of Health. From a judgment for respondents, relator appeals. The respondent's action in suspending the license of relator to practice medicine and surgery ordered quashed, and judgment reversed.
Irwin & Haley, of Jefferson City, for appellant.
Jesse W. Barrett, Atty. Gen., and Albert Miller, Asst. Atty. Gen. (H. J. Westhues, of Jefferson City, of counsel), for respondents.
This is an appeal from a judgment rendered by the circuit court of Cole county upon a writ of certiorari directed to respondents as members of the State Board of Health of Missouri, which judgment affirmed the action of the said board in suspending, for a period of five years from December 3, 1920, the license of relator herein to practice medicine and surgery.
The pleadings and facts involved are substantially as follows:
Relator is a duly licensed and practicing physician of Jefferson City, Mo. On September 14, 1920, Hon. H. J. Westhues, prosecuting attorney of Cole county, filed a complaint before the State Board of Health, charging that relator had been and was guilty of unprofessional and dishonorable conduct in this, to wit:
"That he, the said Herbert E. Johnson, on or about the 26th day of August, 1920, in the city of Jefferson City, state of Missouri, unlawfully produced a criminal abortion upon one Edna Boothby, a pregnant woman; he, the said Herbert E. Johnson, being then and there aforesaid a licensed physician and then and there not intending necessary medical or surgical treatment, not being then and there engaged in an act necessary to preserve the life of said Edna Boothby, or that of an unborn child, and not then and there intending any injury other than the destruction of the pregnancy."
The said complaint prayed that an inquiry be had and that, relator's license to practice medicine and surgery in this state be revoked.
Pursuant to such complaint notice was served upon relator that a hearing upon the charges preferred would be held before the said Board of Health, and, on October 28, 1920, such hearing was had at the city of Jefferson when and where relator' appeared in person and by attorney.
The evidence for respondents consisted of the oral testimony of Drs. J. E. Jose, Frank W. Gillham and James A. Hill, all of Jefferson City.
Dr. Jose upon direct examination testified: That he had known Edna Boothby for the last 18 months or two years; that he treated her in her last illness; that he was called to her home on August 30th, reached there about 10 o'clock in the morning and found her trying to expel an afterbirth; that he knew from the afterbirth that there must have been a baby, but that he did not see a baby. Over the objection of counsel for relator the witness was permitted to testify as follows:
"Q. Did she tell you whether or not an abortion was performed upon her? A. Yes, sir. "Q. Did she state to you who performed the abortion? A. She said Dr. Johnson performed the abortion on her on Thursday before.
The witness further testified that he called in Drs. Gillham and Hill, but that Dr. Hill did not arrive until the girl was dead; that about 1 o'clock the next morning he telephoned the relator "that the girl had died and that she made a confession before she died; that if he wanted to know any of the particulars he could see me in the morning." On cross-examination Dr. Jose testified that Miss Boothby died on August 31st about 11 or 11:30 o'clock at night, while he was present; that on the day before, at the time she made the statement with reference to relator, she was rational.
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