38 Ark.] MAY TERM, 1882. 605 The State v. Hardister and Brown. THE STATE V. HARnISTER AND BROWN. l. CRIMINAL LAW: Homicide by mal-practice as a physician. For a mere mistake of judgment in the selection and application of remedies, resulting in the death of his patient, a physician is not criminally liable; but when death is caused by gross ignorance in the selection or application of remedies by one grossly ignorant of the art he assumes to practice, he is criminally liable. ERROR to Sharp Circuit Court. HON. L. I. MACK, Circuit Judge. STATEMENT. A demurrer was sustained by the Sharp Circuit Court to the following indictment, and the State brought error : "The grand jury of Sharp county, in the name and by- the authority of the State of Arkansas, accuses Nathan G-. Hardister and Henry W. Brown, of the crime of manslaughter, committed as follows, to-wit: The said Nathan C. Hardister, on the twenty-seventh day of October, 1880, in the county and State aforesaid, then and there being a physician, surgeon, and obstetrician, holding himself out to the public as
606 SUPREME COURT OF ARKANSAS, [38 Ark. The State v. Hardister and Brown. such, and soliciting patronage, then and there, in the county and State aforesaid,- as such physician, surgeon, and obstetrician, and by reason of the said Nathan G. Hardister so holding himself out as such physician, surgeon and obstetrician, as aforesaid, was, on the day and year last aforesaid, and in the county and State aforesaid, then and there being called in the capacity of physician, surgeon and obstetrician, to attend upon one Amanda Saunders, being a married woman, and then and there being pregnant with a quick child, and in the labor of child-birth ; the said Nathan G. Hardister did, then and there, feloniously, and without due caution and circumspection, make an assault upon the said Amanda Saunders, and then and there, feloniously, and without due caution and circumspection, and by mal-practice, did administer to her, the said Amanda Saunders, while in the pains of child-birth, as aforesaid, a large quantity of morphine ; being unnecessary, not required, and wholly unauthorized, and the qu antity so administered being excessive ; and by reason of the administering of the morphine aforesaid, the said labor pains were retarded, interefered with and allayed, and the said Amanda Saunders made nervous, delirious, and prostrated with a fever ; and thereupon the said Nathan G. Hardister, feloni-ously, and without due caution and circumspection, and by mal-practice, did administer to her, the said Amanda Saun-ders, large and excessive quantities of fluid extract of ergot ; and by reason of the administering of the said ergot, in excessive quantities, as aforesaid, by the said Nathan G. Har-dister, he then and there caused the said Amanda Saunders, to have convulsions ; and thereupon the said Nathan G. Har-dister, then and there, feloniously, and without due caution and circumspection, did bleed the said Amanda Saunders in the arm, which bleeding was, then and there, unnecessary and unauthorized.
38 Ark.] MAY TERM. , 1882. 607 The State v. Hardister and Brown. And the said Nathan G. Hardister did, then and there, feloniously, and without due caution and circumspection, attempt to deliver said quick child from the said Amanda Saunders, by the use of forceps, by repeatedly introducing them, without due caution and circumspection, into the body of said Amanda Saunders, and by the unauthorized use of the forceps produced an inflammation in the body of the said Amanda Saunders, which inflammation, so produced by the unauthorized use of the forceps aforesaid, caused the said' Amanda Saunders to have fever ; and the •aid Nathan G. Hardister did, then and there, feloniously, and without due caution and circumspection, administer to said Amanda Saunders, large and excessive quantities of chloroform, which administering of the said chloroform in such excessive quantities was unnecessary and unauthorized, and then and there, feloniously, without due care - and circumspection, with a certain poCket-knife, did cut, puncture, penetrate and wound the said quick child, in the head, thereby, then and there, feloniously killing said quick child, before its delivery from its mother, the said Amanda ; the killing of the quick child aforesaid being unnecessary and wholly unauthorized ; causing great irritation and inflammation of the body of her, the said Amanda Saunders, and other great injuries to the body and person of the said Amanda Saunders then and there did ; and then and there, feloniously, and with-• out due caution and circumspection, did insert his fingers into the mouth of the said quick child, and force its head out of the mouth of the vagina of the said Amanda Saunders ; and then and there, without due caution and circumspection, felon-iously did tie a rope around the neck of said child, killed as aforesaid, and, with force and violence, and without due caution and circumspection, feloniously did pull and deliver said
608 SUPREME COURT OF ARKANSAS, [38 Ark. The State v. Hardister and Brown. child from the womb of said Amanda Saunders; and the de- livery of said child was unnecessary and wholly unauthorized. And the said Nathan G-. Hardister, then and there, without delivering the afterbirth from the said Amanda Saunders, feloniously, without due caution and circumspection, did abandon her, the said Amanda Saunders, leaving her in a prostrated, delicate and precarious condition ; and from the effect of the treatment, as aforesaid, by the said Nathan G. Hardister, she, the said Amanda Saunders, did languish from the twenty-seventh day of October, 1880, iii the county and State aforesaid, and languishing did live until the third day of November, 1880, in the county and State aforesaid ; on which said third day .of i\Tovember, A. D. 1880, from the effect of the said treatment and malpractice of the said Nathan G. Hardister, she, the said Amanda Saunders, did die. And so the grand jury aforesaid, in the name and by the authority aforesaid, do say that the said Nathan G. Hardister, on the twenty-seventh day of October, 1880, in manner and form as aforesaid, her, the said Amanda Saunders, feloniously, and without due caution and circumspection, did kill and slay, against the peace and dignity of the State of Arkansas. And the grand jury aforesaid, in the name and by the authority aforesaid, do further charge that, on the said twenty-seventh day of October, A. D. 1880, in the county and State aforesaid, the said Henry W. Brown, then and there being a physician, surgeon, and obstetrician, and holding himself out to the public as such, and soliciting patronage as such, was in the capacity of such surgeon, physician, and obstetrician, called in to consult with and assist the said Nathan Gr. Hardister, in the treatment of the said Amanda Saunders, as aforesaid, feloniously, and without due caution and circumspection, abetting, aiding and assisting the said Nathan G. Hardister, the said Amanda
38 Ark.] MAY TERM, 1882, 609 The State v. Hardister and Brown. Saunders then and there to kill and slay, in manner and forms as aforesaid, against the peace and dignity of the State of Arkansas." C. B. Moore, Attorney General, for the State. We have no Statute directly bearing upon m.al-practice and death caused thereby, but Sec. 1266, Gantt's Dig., provides that killing another by a person the prosecution of a lawful act, done without due caution and circumspection," shall be manslaughter. Tbe indictment was good. Wharton on Homicide, 131- 144 ; Archbold, Cr. Law and Plead., Vol. 2, 221, and notes. ENGLISH, C. J. Appellees were indicted in the Circuit Court of Sbarp county for manslaughter; a demurrer was sustained to the indictment; they were again indicted for the same offense ; a demurrer was sustained to• the second indictment, and the State appealed. It may be seen from the reporter's copy of the indictment, that appellees were accused of causing the death of a woman by mal-practice as physicians. The demurrer to the indictment was general, the only cause assigned being that it did not state facts sufficient to constitute a public offense. It is manifest, from words used in the indictment, tbat it was drafted under the second clause of section 1266, Gantt's Dig., the whole seotion being: "If the killing be done in the commission of an unlawful act, without malice, and the means calculated to produce death, or in the prosecution of a lawful act, done without due caution and circumspection, it shall be manslaughter." The preceding section defines voluntary manslaughter, and the section copied is, in
610 SUPREME COURT OF ARKANSAS, [38 Ark. The State v. Hardister and Brown. substance, the common law definition of involuntary manslaughter, which, by our law, is a felony, and punishable by imprisonment in the penitentiary for a period not exceeding twelve months. Ib., Sec. 1 278. The indictment charges, in substance, that appellees holding themselves out as physicians, etc., were called to attend Mrs. - Saunders, and that they feloniously, and without due caution and circumspection, and by mal-practice, in the use of the remedies and appliances described, and, finally, by abandonment, caused her death. Sin MATTHEW HALE said : "If a physician gives a person a potion, without any intent of doing him any bodily hurt, but with an intent to cure or prevent a disease, and, contrary to the expectation of the physician, it kills him, this is no homicide ; and the like of a chirurgeon. And I hold their opinion to be erroneous, that think, if he be no licensed chirurgeon or physician, that occasioneth .this mischance, that then it is felony ; for physic and salves were before licensed physicians and chirugeons ; and therefore, if they be not licensed according to the Statute (3 H. 8 Cap. 11 or 14 H. 8 Gap. 5), they are subject to the penalties in the Statute ; but God forbid that any mischief of this kind should make any person, not licenSed, guilty of Murder or manslaughter. These opinions, therefore, may serve to caution ignorant people not to be too busy in this kind with tampering with physic, but are no safe rule for a judge or jury to go by," etc. 1 Hale's Pleas of the Crown, 429. In note 6, first American Edition of HALE, by Stokes & Ingersoll, the annotators say' "Later authorities agree with HALE in these points. If a person, whether he be a regular practitioner or not, honestly and hona fide perform-an operation which causes the patients' death, he is not
3S Ark.] MAY TERM, 1882. 611 The State v. Hardister and Brown. guilty of manslaughter. But if he be guilty of criminal misconduct, arising from gross ignorance or criminal inattention, then he will be guilty of manslaughter ;" citing cases. SDI WILLIAM BLACKSTONE said : "If a physician or Surgeon gives his patient a potion or plaister to cure him, which, contrary to expectation, kills him, this is neither murder nor manslaughter, but misadventure, and he shall not be punished criminally, however liable he might formerly have been to a civil action for neglect or ignorance. But it hath been holden that if he be not a regular physician or surgeon, who administers the medicine, or performs the operation, it is manslaughter-at least. Yet SIR MATTHEW HALE very justly questions the law of this determination." 2 Black. Com . Book 4, p. 197. In 1809, SAMUEL THOMPSON, the father of the botanical, or steam system of medicine, was indicted in the Supreme Court of Massachusetts for murder, and the court charged the jury that, "if one, assuming the character of a physician, through ignorance, administer medicine to his patient., with an honest intention and expectation of a cure, but which causes the death of the patient, he is not guilty of a felonious homicide." Commonwealth v. Thompson, 6 Mass. R., 134. This case was followed in 1844, in Rice v. State, 8 Mis-souri, 561. But in an edition of the Massachusets Reports in 1850, in a_ note to Commonwealth v. Thompson, the editor says: "If death ensue from the gross ignorance, carelessness, negligence, or rashness of any one who undertakes to administer medicine, without any intent to do harm, the offense has often been held by eminent judges to amount to manslaughter ;" and, after citing the later English decisions to sustain
612 SUPREME COURT OF ARKANSAS, [38 Ark. The State v. Hardister and Brown. this proposition, the editor adds: "And this not only seems to be sound but wholesome doctrine." In March v. Davison, 9 Paige, 587, Chancellor \VAL-"WORTH, commenting on Commonwealth v. Thompson, said "Our Statute does indeed, prohibit persons, not authorized by law, from practicing physic or surgery in this State (New York.) And as the person wbo should attempt to practice contrary to the Statute would be engaged in an unlawful act, be could not probably escape a conviction of manslaughter if he should kill a patient, even where be supposed the remedy administered was not dangerous to health or life," etc. In Rex v. Williamson, 3 Carrington & Payne, 635, the prisoner, a man-mid-wife, tore away part Of the pro-lapsed uterus of a woman whom he bad delivered of a child, supposing it to be a part of the placenta ; the woman died, and he was indicted for murder. LORD ELLENBOROUGH, C. J., in summing up, said to the jury : "There has not been a particle of evidence adduced which goes to convict the prisoner of the crime of murder ; but still it is for you to consider whether the evidence goes so far as to make out a case of manslaughter. To substantiate tbat charge, tbe prisoner must 'have been guilty of criminal misconduct, aris-inff either from the orossest ionorance or the most criminal' inattention. One or other of these is necessary to make him guilty of that criminal negligence and misconduct, which is essential to make out a case of manslaughter," etc., etc. In Rex v. Long, 4 Carrington & Payne, 398, it was heM that a person acting as a medical man, whether licensed or unlicensed, is not criminally responsible for tbe death of a patient, occasioned by his treatment, unless his conduct is characterized by gross ignorance of his art, or gross inattention to his patients' safety.
38 Ark.] MAY TERM, 1882. 613 The State v. Hardister and Brown. In another indictment against Long., lb., 423, it was held, - that when a person undertakes the cure of a disease (whether he has received a medical education or not), and is guilty of gross negligence in attending his patient after he bas applied a remedy, or a gross. rashness in the application of it, and death ensues in consequnence of either, he is. liable to be convicted of manslaughter. In Rex v. Speller, 5 Carrington & Payne, 332, held that any person, whether a licensed medical practitioner or not, who deals with the life or health of any of his Majesty's subjects, is bound to have competent skill, and is bound to treat his or her patients with care, attention and assiduity, and if the patient dies for want of either, the person is guilty of manslaughter. The English cases, those cited above and, others, are reviewed in Roscoe's Criminal Evidence, 717-20. MR. GREENLEAF, in treating of involuntary manslaughter, says: "If the act be in itself lawful, but done in an improper manner, whether it be by excess, or by culpable ignorance, or by want of due caution, and death ensue, it will b3 manslaughter. Such is the case where death is occasioned by excessive correction given a child by the parent or master, or by ignorance, gross negligence, or culpable inattention or maltreatment of a patient on the part of one assuming to be his physician," etc. 3 Greenleaf's Evidence, Secs. 128-9. See also Wharton's Law of Momicide, 131-144; 2 Bishop's Cr. L. (6th Ed.), Secs. 664-686. The court is of the opinion that the indictment in this case haibciienor is sufficient: -Whether appellees are criminally mistake of judgment, responsible for the death of Mrs. Saunders but is for gross igno- must depend upon the evidence. A felonious rance. want of "due care and circumspection" in her treatment must be proved as alleged. For a mere mistake of
614 SUPREME. COURT OF ARKANSAS, L38 Ark. judgment in the selection and application of the remedies and appliances, named in the indictment, they would not be criminally liable. Were they grossly ignorant of the act which they assumed to practice ? Did they manifest gross ignorance in the selection or application of the remedies? Were the remedies unusual, inapplicable, or rashly applied? Were appellees grossly negligent Or inattentive ? These are all cniestions of evidence. The judgment must be reversed, and the cause remanded for further proceedings. NoTn.—The judgment of the court was made up in this case and the opinion prepared, and concurred in by HoN. W. M. HARRISON, before he left the bench.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.