The Helena independent. [volume] (Helena, Mont.) 1875-1943, 1893-03-25
7HEDR KELLOGG MATTER
He Cannot Be Compelled to Give
the Name OF the
Woman.
II an Opinion Ia Correct the Crime
Of Murder Has Been
Committed.
DR.. Kellogg hy Refusing to Answcr the
COroner's Question Invoices HIS
Constitutional Privilege.

Yesterday morning, in the distti court.
Judge Hunt gave his decision in the Kcl.
loRg matter. holding that tho doctor could
not Oe compelled to give the name of the
woman in tho case. The opinion Ia as fol-
lows The coroner Of Lewis and Clarke
county. with q jury of six. recently pro-
ceeded to investigate into the cause of the
death Of an infant child. Tho testimony
thus far taken is made part of the sheriff
return herein. 1t establishes the fact that
the body of m infant Was put into a fur
mace by one DR.. 4. s.. Kellogg. The head
of the child had been cut or pulled of.
There was fire in the furnace at the time
the body WAS placed therein. Physicians
have testified az experts before the coro-
ner's jury. One OF them. DR.. Cole, ia of
the opinion that the body is that of a foetue
apparently Of between six and seven
months growth; he thinks that the head
had been cut off by some means. DR.. Bull
lard thinks the lungs are natural in color,
and are in a shape that they
might receive air; he is not
satisfied that they have received
air, and docs not think they have.
DR.. Rockman testified that in his opinion
the body is that of a child seven months in
the womb, If a day. and that the physical
condition OF the lungs leads him to believe
that they were inflated by air, and that the
child was born alive. His opinion is based
upon the statement that the lungs of this
child are pink and inflated. while, if it had
been born dead, they would have been col
lapsed and blue.
? ''The coroner summoned DR.. Kellogg. the
petitioner. before him. He admitted that
he had put the body in the furnace, and
that he took 1t from n woman by miscar-
riage. In making his first statements he
does not appear to have been represented
by counsel. At a subsequent date DR.. Kel-
lo9R again appeared before the coroner.
when the following question was put to
him: will you please 81 70 the name of the
person from whom the foetus which you had,
md which you consigned to the furnace,
was taken through miscarriage? To this
whose name you ask has left the state OF
Montana. and ia without the jurisdiction of
any court of the state of Montana; without
the presence of that person to explain and
certify to her condition at the time the
fntus was taken from her my answer, under
the existing circumstances would incrlmi-
nate me, and be testimony against myself,
and on that ground 1 refuse to answer.
The question was then put to DR.. kellogg
calling for IN explanation Of how his
answer would incriminnts him. His answer
was, The explanation involves the an
swer Tit coroner thereupon committed
him, holding hin in contempt for not re-
plying to the question.
"Petitioner represents that his impris.
onment is illegal, and prays for a writ of
habeas corpus. and to be restored to his
liberty.
1.-TWO points are involved. First-Has a
coroner any authority to commit for cou-
tempt a witness who refuses to answer a
question? Second-Assuming that he has,
has he the power to compel DR.. Kellogg to
answer the question put to him II Kellogg re-
fuses to reply for the reason that an an
swer would incriminate him?
II do not deem it necessary to enter into
the first proposition, and for the purposes
nlone of deciding the second question i.
may be assumed that tho oarouer can COM
nit for contempt.
The circumstance tend to show, If the
opinion of DR.. Kockman ia correct, that the
crime of murder has been committed. The
admission by petitioner that be placsd the
child in the furnace. the fact that its head
was cut off, coupled with the positive
opinion of a physician that it had breathed
VIII, uttended at the delivery Of the
child from the woman, and put 1t in the
furnace, ia IMPLICATED in a crime of n shock
ing nature. But even If the testimony of
Or. Rookman is erroneous, the fact that
Ut. Kellogg AS in possession OF a f0tus
with its head cut off, and sought TO burn it's
trunk, when considered with the other evil
dence in the record. tend to show that On
abortion has been committed. 1t matters
not for this motion to which particular
offense the evidence seems to point. as both
are defined to be felonies under our iaw.
1.-The coroner is authorized to hold an
inquest upon the dead bodies of such per-
sons only as are supposed to have died by
means, CIR the cause of whose
death is unknown. He has ths further
power il. nfter inquisition, the jury. find a
crime has been committed on the deceased,
to issue q wa rant to the sheriff reqniting
him to arrest the person, and such warrant
IS deemed OF equal authority with that of a
justice of the peace. Such being the law,
If the jury find that a crime has been COM
mitteu at all, the result Of the inquisltion
would probably be the arrest of the person
who had the body, and his accusation Of q
crime.
= The constitution of this state provides
no person shall be compelled to testify
against himself in q criminal proceeding,
and the statute declares that a witness need
not give an answer which will have a ten
dencv to subject him to punishment for
.wer the question put to him by the cor
oner. invokes this privilege, and II Ia only
Tor tho court to now any whether it reason
appears that the answer will have a
tendency to e1, ose him to n penal liability, |
or to any kind Of p lnlshment. or to a GRIM
inal chnrge.
"Considerin the facts adverted to above,
aud the opinion of DIR. Rockmun, there can
be but one solution OF the question. II the
child was born alive. and Dr.. Kellogg ia
compelled to give the name of the woman
from whom il was taken, it would be re-
DURING him to give to the coroner the name
Of IL witness who might be the cause of the
of his life to the state, for if abe
testified TINT she knew hor child had
after its birth. and il it could DO
proven that none but petitioner had held
5r had access to the infant from the time
it's delivery up to tho time that he nd
Ipits he put it into the furnace, there would
10 a chain of evidence scarcely lacking in
The smallest link. and from which could be
loduced no other reasonable hypothesis
'ther than that Dr.. Kellogg cut
off ita head and thus murdered
the child. Again, if the ciroum-
'tancea nre sufficient to raise the
that the crime of abortion has
been committed, il %etitioner can be COM
'eiled to answer the question p~topounded
d is forcing him to put tho c%orouer's Jury
n the possession of tho essential link IN
.he chain of evidence which might convict
of Il crime, the punishment for which
IL I'M riSonment in the p~enitrntiary, be-
,auae II such woman should admit she was
delivered by DR.. kellogg of the child be-
1t ought by nature to have been born,
Unless such delivery was brought about to
save her life, tho crime OF nbo tion would
30 complete. and n ttinl jury would be JUS
,iGed in convicting the person who deliv-