*1 194 trial, are entitled to a crime charged jury
sons of an not be taken from them under guise this must right 81 Vaughan, a nuisance.” State against injunction 685, 899, 117, L.R.A. 118 Am. St. (n. s.) also Theater 29, see Lyric Ann. Cas. Rep. State, (n.s.) S.W. 33 L.R.A. 98 Ark. nor the shows Here neither pleadings proof basis for nonstatutory equity jurisdiction. independent criminal lies enforcement remedy State’s to the civil courts. rather than in resort law and dismissed. Reversed MAY O. v. STATE of Arkansas
John Opinion delivered April April modified on rehearing denial of [As 1973.] *2 for Lessenberry, appellant. L. Jack Newell, Gen., Tucker, Frank B. Atty. by: Guy Jim Gen., appellee. for Atty. Asst. Lyle Brown, a con- May O. appeals from J. Justice. It was the on a of an abortion. charge inducing viction and Allan Kaye at the of of the State that theory request McCord, Bill Teresa Barrett Kuykendall, contacted Jr. to believe in had reason could touch with get he who perform who would an abortion. Teresa was someone to have for ab- appellant arranged said contacted the testified Kaye ortion. act was Kuykendall illegal 9, 1970, committed on October which to be happened was an birthday. Appellant’s defense alibi. appellant’s He, witnesses, along testified that corroborating was in DeValls Bluff his celebrating birthday. are to an un- necessary Those about all the facts that are issues on additional derstanding appeal. of the Such facts are to an of the issues pertinent as of understanding recited. will subsequently treat that our appellant’s argument
We shall first statutes, Ark. Stat. Ann. 41-303-310 (Supp. abortion §§ are in 1971) unconstitutional of recent decisions light two Supreme Bolton, of the United Attor States Court. Doe ney General 93 S. Georgia, L. Ed. Ct. 2d 201 Roe District Attorney Dallas County, S. 93 Ct. Ed. cases, L. In both (1973). parts of the abortion laws the respective states were declared Roe, unconstitutional. In it was determined by Court that a pregnant woman single had standing attack the statute; Texas in Doe plaintiffs were an indigent, mar ried, pregnant citizen Georgia and certain licensed physi cians, conferred, held, being so the Court on the latter through Epperson Arkansas, 393 U.S. The most salient of both aspect cases (Roe and Doe) for the pur poses both appeal case at bar is that the decisions in/
Roe arid Doc for mance-of'abor contemplate per tions only physicians.. licensed In as to laymen, fact by statement, Roe makes the in its under XI that a summary by “may proscribe person is not who state a abortion pro- physician”. in 41-303 effect Ark. Stat. .Our people, physicians by classes of
hibits abortions two holdings Supreme laymen. Court The effect during against physicians prohibition as down to strike period preceding first approximately end of the laymen; as be left intact section can trimester. that cited Scott, holding in Borchert v. was the effect our said: where we objects, accomplish attempts two or more “If every may respect one, still be is com- and plete void point abortion case in valid other”. An as to the respect Brunelle, N.E. Commonwealth v. in this 1971). (Mass. *3 2d appellant standing personally to
The
has no
attack
constitutionality
is
uncon-
because it
§ 41-303
applied
appellant,
applied
him.
to
to
As
stitutional
layman
performing
simply prohibits
or
a
from
41-303
§
out,
inducing
pointed
an
we
the United
abortion. As
Supreme
says in
states
States
Doe and Roe
Court
by
right
prohibit
activity
to
other than
have a
such
one
supra,
Brunelle,
physician.
standing
In
accused
brought
as unconstitutional was
standing
to attack
question
was
his
that attack
into
to make
physician.
was not a
denied because Brunelle
court said:
licensed
by
persons
“Only
are affected
whose interests
may
unconstitutional”.
assert that
a statute
compelled
new
reverse and remand for
to
areWe
right
trial, principally
denied the
because
was
key
credibility
the State’s
witnesses
of some of
to attack
turpitude.
grounds
acts
For
on
example, appellant sought
of certain
of moral
Kuykendall
Mrs.
to elicit from
witness,
the fact that she had sexual relations with another
Kuyken-
McCord,
Bill
Allan
Jr., while she
married to
testimony
(Mrs. Kuykendall admitted the
in her
act
dall.
sought
chambers). Appellant
cross-
elicit on
also
witness,
McCord,
that Mc-
examination of Bill
a State
Jr.,
alley suffering
ef-
from the
Cord had been found in an
credibility
drugs.
fects
a
On cross-examination
may
impeached by showing
acts of moral
witness
turpitude.
State,
Hale
Ark.
2d
State,
Heath
Ark.
point
Still more in
are such cases as Garrard v.
State,
(1914),
Ark.
Several other for reversal are advanced. Some of those will retrial; not arise on merit; others have no present and some timely situations in which a record was not made.
Reversed and remanded.
Byrd, J., dissents in part. Conley dissenting. disagree I with so Justice, Byrd, opinion majority appellant, much of the that holds that layman, constitutionality has no to attack the Statute, (Supp. of our abortion Stat. 41-303 1971). provides: That statute “It shall be unlawful for one administer or prescribe any child, mature of drugs medicine or woman produce pre- abortion; with the intent to an or delivery any period foetus or after the before quickening, produce attempt produce or to or *4 by any any person means; such abortion and offending against provisions the of this shall Section be fined in sum not to exceed one thousand dollars ($1,000.00), less than and nor more than [5] imprisoned years.” penitentiary The Texas statute involved in Roe U.S. 113, (1973), provided: 93 S. Ct. L. Ed. 2d 147
“Ardele 1191. Abortion any person designedly preg- “If shall administer to knowingly procure nant woman or to be administer- any drug medicine, ed with her consent or or shall ex- use towards her violence or means whatever ternally intermally applied, thereby procure or and peniten- abortion, an shall be confined in he the tiary years; not less than two nor if it more than five consent, shall the punishment without her
be done By is meant that the life be doubled. 'abortion’ shall in embryo destroyed fetus or woman’s be caused.” birth thereof premature womb or that medical advice By “Article 1196. an pro- in this abortion
“Nothing
chapter applies
advice for the purpose
medical
attempted by
cured or
life
the mother.”
of
saving
majority opinion
delivering
in
Blackmun
Justice
stated:
1196 is unconstitutional
that Art.
“Our conclusion
statutes,
course,
abortion
means,
that
Texas
unit,
Art.
fall. The exception
as a
must
then
State
be stricken
for
separately,
cannot
abortion procedures
all
proscribing
left with a statute
no
the case.”
urgent
matter how
Scott,
Ark.
I can find
Borchert
nothing
1050-H,
majority
support
was
was whether
the act
here. There the issue
position
matter
stated in this language:
severable and the
we
us on direct appeal
“When this
was before
case
Act,
Act
Documentary
being
held the
Tax Stamp
void under Amend-
unconstitutional
239
ment
Borchert
to the
Arkansas.
Constitution
Scott,
al,
et
We
Our as written makes no distinction as to the Thus, occupations me that persons prohibited. it appears has a complain that statute is being unequally applied him when cannot validly applied persons within the class that is prohibited.
For stated, the reasons I respectfully dissent to that portion of the opinion upholding validity of the statute. ELLINGBURG v. STATE of Arkansas
James CR 73-11 delivered
Opinion April