State v. Clark

Decision Date08 July 1921
Docket NumberNo. 22634.,22634.
Citation232 S.W. 1031,288 Mo. 659
PartiesSTATE ex rel. JOHNSON v. CLARK et al., State Board of Health.
CourtMissouri 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.

ELDER, J.

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. "Q. Was any one else present at the time? A. No, sir."

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.

"Q. Say anything about that she realized the end was near, or say anything about dying? A. No.

"Q. Or any words to that effect? A. No; nothing said about that, neither by her nor me. * * *

"Q. And outside of the girl's statement to you, you know nothing about the trouble at all? A. I know the girl was in a family way. * I know that the girl came to me and told me she was that way and wanted to know what she could do to get shut of it, but that was some month or so before this. * * * And I told her I couldn't do it, and she wanted to know what to do, and I told her to go to a maternity hospital at St. Louis. * * * She told me she knew where she could have it done here, but she didn't like to go to the man. * * *

"Q. Did she call the man's name? A. Yes, sir.

"Q. Whose name did she mention, if she mentioned it? (Objection by counsel for relator. Objection overruled, exception saved.) A. Dr. Johnson was the man that she said she could go to."

Dr. Gillham testified that on or about August 30th or 31st he was called to the home of Miss Boothby by Dr. Jose; that he found the girl—

"in an unconscious condition, just at the point of death; in fact she died in an hour or 45 minutes after I arrived on the scene.

"Q. Well, what was the cause of her death? A. Apparently a general peritonitis.

"Q. What had happened to the girl? A. I did not make an examination; that is, a vaginal examination. Her abdomen was swollen up, she was pulseless, in a state of coma; just in the last—just dying in fact.

"Q. Those things happen in an abortion performed sometimes? A. From the history of the case I think so. * * *

"Q. Dr. Gillham, do you know whether or not there was a great deal of belief and talk that this man did cause abortions? A. I do." (Objection by counsel for relator.)

Dr. Hill testified that he was called to attend Miss Boothby on or about August 30th or 31st and—

"found her breathing her last; she was practically gone when I reached there; she died in about five minutes I judge.

"Q. Doctor, I will ask you this: Do you know the reputation of Dr. Johnson with reference to committing abortions? A. Yes.

"Mr. Haley: I object to that question because he is not charged here with committing more than one abortion; it is seeking to charge him with offenses not mentioned in the complaint or information.

"Dr. Clark: Answer the question, Doctor. (Exception by relator.) A. The reputation in regard to Dr. Johnson as to abortions I have— from patients of mine i have been very positive he has been doing it.,

"Mr. Haley: I move that the answer be stricken out for the reasons assigned in the objection." (No ruling on the motion.)

Dr. Johnson, the relator, testified in his own behalf, that he was a regular licensed physician and had been practicing in Jefferson City since 1907; that the last time Edna Boothby was at his office was "about between 9:30 and 10:30 o'clock on the 27th day of August," and that—

"She was there, though, on the 26th also.

"Q. On the 26th when she was there just tell the board what took place. A. She came to my office and asked me to examine her. I examined her and told her she was about five or six months pregnant. She told me that her womb was inflamed and asked me to examine her womb. I put her on the table and took my speculum and inserted it and took a pair of dressing forceps and examined her womb and found that her womb was inflamed about the size of a half dollar. I let her off my table and told her that her womb was inflamed and some one had been fooling with her, else she had been fooling with her. I told her I couldn't do anything for her because her womb was inflamed and I couldn't fool with her. She said, `Doctor, if you will do something for me there is a doctor in town that will look after me.' I told I couldn't do anything for her. She asked me how much she owed me for the examination. I told her she owed me $2.50. She says, `Well, I haven't got the money now, but I will send it to you the 1st of the month.' I told her I would not be in town the 1st of the month, but she could send it to my wife. And she left. The following morning she came back again and asked me would I do this work for her. I told her I could not do it. And she didn't get any further on the 27th of August than in my first, front room.

"Q. Just a moment. When she said she wanted you to do this work, what was she referring to? A. She wanted me to commit an abortion on her.

"Q. You say she came back the next day? A. She came back the next day—the next morning.

"Q. Did you take her into your private operating room? A. No, sir.

"Q. Was anybody present with her when she came? A. No one at all.

"Q. Did you see her after that time? A. didn't see her after that time.

"Q. Do you remember on the 31st day of August Dr. Jose called you by telephone? A. He called me about 1 o'clock, on the 1st day of September; it was about 1 o'clock he called me and told me that the Boothby girl died and he would like to see me at his office the next morning—that morning; I told him that I would be out of town; I had already made arrangements to go to Kansas City to take an intensive training course at the general hospital, and was due there at 10 o'clock Wednesday morning, and I had already called up the taxicab at 10 o'clock that night to come after me in order to get me to the station to make the train. I had previously announced in church that I would be out of the city for 30 days. I had called up Dr. Amos here in town and asked him to look after some patients for me for 30 days while I was out of town, and told him that I was sending one of Duke Diggs' men to him Wednesday morning to get his hand treated for having mashed it moving a piano.

"Q. So these arrangements to leave, as 1 understand, were made before Dr. Jose had communicated the death of the Boothby girl to you? A. I had been making arrangements to leave ever since we had our medical association in St. Louis in May—in June.

"Q. Now, I will ask you if you, on the 26th day of August,...

To continue reading

Request your trial
29 cases
  • In re Rust v. Missouri Dental Board, 37048.
    • United States
    • Missouri Supreme Court
    • 22 Agosto 1941
    ... ... (a) A license or right to practice the profession of dentistry is a valuable right which cannot be taken away without due process of law. State ex rel. Spriggs v. Robinson, 253 Mo. 271, 161 S.W. 1169; State ex rel. Hurwitz v. North, 304 Mo. 607, 264 S.W. 678; Chenoweth v. State Board of ... Spriggs v. Robinson, 253 Mo. 271, 161 S.W. 1169; State ex rel. Wolfe v. Mo. Dental Board, 282 Mo. 292, 221 S.W. 70; State ex rel. Johnson v. Clark, 288 Mo. 659, 232 S.W. 1031; Abrams v. Jones, 207 Pac. 724. (c) Section 13566 (Laws 1937, p. 486) under which the court pretended to act is a ... ...
  • Gaddy v. State Bd. of Registration for Healing Arts
    • United States
    • Missouri Court of Appeals
    • 23 Noviembre 1965
    ... ... In turn, the meaning of the phrase 'addiction to a drug habit' largely depends upon the meaning of the word 'addiction.' ...         Appellant's counsel cite and rely upon State ex rel. Johnson v. Clark, 288 Mo. 659, 671, 232 S.W. 1031, 1034(2), and State ex rel. Spriggs v. Robinson, 253 Mo. 271, 284, 161 S.W. 1169, 1172(2), in which our Supreme Court said that the predecessor statute to Section 334.100 was highly penal in its nature and should be construed strictly against the Board and liberally ... ...
  • Lucas v. Manufacturing Lumbermen's Underwriters
    • United States
    • Missouri Supreme Court
    • 5 Mayo 1942
    ... 163 S.W.2d 750 349 Mo. 835 Ray B. Lucas, Superintendent of the Insurance Department of the State of Missouri, Respondent, v. Manufacturing Lumbermen's Underwriters, a Reciprocal Insurance Exchange et al., Defendants, Central Surety & ... Co. v. Hall, 330 Mo. 1107, 52 ... S.W.2d 174; State ex rel. St. Louis v. Priest, 152 ... S.W.2d 109; State ex rel. Johnson v. Clark, 288 Mo ... 659, 232 S.W. 1031; St. Joseph v. Farrell, 106 Mo ... 437; In re Moynihan, 332 Mo. 1022, 62 S.W.2d 410, 91 ... A. L. R. 74; ... ...
  • Rust v. Missouri Dental Board
    • United States
    • Missouri Supreme Court
    • 22 Agosto 1941
    ... ... dentistry is a valuable right which cannot be taken away ... without due process of law. State ex rel. Spriggs v ... Robinson, 253 Mo. 271, 161 S.W. 1169; State ex rel ... Hurwitz v. North, 304 Mo. 607, 264 S.W. 678; ... Chenoweth v ... 271, 161 S.W. 1169; State ex rel ... Wolfe v. Mo. Dental Board, 282 Mo. 292, 221 S.W. 70; ... State ex rel. Johnson v. Clark, 288 Mo. 659, 232 ... S.W. 1031; Abrams v. Jones, 207 P. 724. (c) Section ... 13566 (Laws 1937, p. 486) under which the court pretended to ... ...
  • 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