State v. Shoemaker

• Decision Date: 14 November 1912
• Citation: 138 N.W. 381,157 Iowa 176
• Parties: STATE v. SHOEMAKER.
• Court: Iowa Supreme Court

157 Iowa 176

138 N.W. 381

STATE

v.SHOEMAKER.

Supreme Court of Iowa.

Nov. 14, 1912.

Appeal from District Court, Polk County; C. S. Bradshaw, Judge.

The defendant was convicted of having attempted to produce a miscarriage, and appeals. Reversed and remanded.Sullivan & Sullivan, of Des Moines, and W. S. Shoemaker, of Omaha, Neb., for appellant.

George Cosson, Atty. Gen., and John Fletcher, Asst. Atty. Gen., for the State.

LADD, J.

[1] The defendant, a practicing physician of Des Moines since 1883, is charged in the indictment with having attempted to produce a miscarriage on Stella Thorne about October 19, 1910. He admitted having used an instrument to relieve the womb of the fœtus, but claimed to have done so to save life. As the fœtus was emitted two days later, the main issue was whether defendant, in the exercise of his best skill and understanding in good faith, believed a miscarriage necessary to save the life of Stella Thorne. The burden of proof was on the state to negative such alleged necessity (State v. Aiken, 109 Iowa, 643, 80 N. W. 1073), and a careful examination of the record has convinced us that it has failed to so prove.

[2] Stella Thorne was an unmarried woman about 22 years of age, and had been pregnant three or four months when she first called on the defendant at his office. At that time, according to her testimony, she told him of her condition, and he promised to help her all he could, but said, if she was after an abortion, he could not perform it, felt her pulse, ascertained her temperature, and informed her she was in bad condition, looked like she had anæmia and declared she had already aborted, and needed assistance to take the fœtus away. He then said he must have $50 before he would do anything, and, when she said she was without means, offered to accept part down and the remainder later. He also required her to employ a nurse, because her heart was weak. On Tuesday evening following she was accompanied by Harvey Ramey, who paid him $35 and executed his note for the remaining $15. The defendant then examined her, and on the next evening the operation was performed, and two days later the fœtus was expelled. The witness further testified that she had not worked during the two weeks previous, but had walked down town nearly every day; that she had been taking medicine previously to produce an abortion, prescribed by a male and also a female physician; that she had said as much to him; that upon examination he had informed her that she was in a pretty bad condition, had anæmia, that her heart was weak, and that she had already aborted septic matter, and needed some assistance to take that away; and that she must have a nurse and (quoting): “He said it might be dangerous for me to wait three or four days, and he took me and made an examination in the private room, and when he examined me he found pain on the left side of my womb, and I had pains in my back and back of my head. After he made the examination, he found my womb standing wide open, and there was abrasions of the membranes around the womb, and that the membranes had been broken or abrased, and he said that it would be dangerous in that condition to let it remain very long, as it might kill me; that that thing that was in there would have to be taken away to save my life, and then I made arrangements to come down the next evening with the nurse, and I brought Miss Morris down.” She also testified that she “was looking pale and sallow.” That she had been complaining of being sick before calling on defendant appears from the testimony...