The Helena independent. [volume] (Helena, Mont.) 1875-1943, 1893-03-22
BEFORE JUDGE HUNT
The Masonic Temple Furnace Case
Now Before the District
Court
DR.. Kellogg Refused to Answer a
Question and IL Committed
tor Contempt
Attorney Kinsley Applies for q Writ Of
Habeas Corpus and This VIII 10
Argued To-day.

Coroner Peasants and . jury met al the
court house yesterday to continue the in
vestiRation into the case OF the infant whose
body was put into the Masonic temple fur.
mace BY DR.. e. 3. Kellogg at ths last meet
ing of the jury. DR.. Kellogg refused to an
swsr . question % to the identity Of the
mother OF the infant on the ground that
such an answer 40 he was prepared to give
would tend to incriminate him.. The coro-
ner then decided to submit the question to
Judge Hunt, which he did. and ths Judge
said he would not pass upon tho rights OF
DR.. Kellogg In the matter unless the ques-
ton was brought before him In a legal
n Yesterdsy's meeting OF tho jury
was to put the matter in suoh shane that
Judge Hunt could pass rpon II.
Beside the coroner, tho jury and a few
spectators there we're present at the inves.
tiRation yeste day DIR. Kellogg and his
counsel, ]. W. Kinsley, County Attorney
Nolan and Sheriff Curtis. Immediately on
the opening OF the investigation Coron or
: Peasants asked DR.. Kellogg tho following
question:
"Will you please give the jury the name
of the lady whom you alleRe gave birth to
the infant that was found In tho Masonic
temple furnaoeY"
To this DR.. Kellogg replied:
1.-THE person whose name you ask for has
left the state Of Montana and ID beyond
and without the Jurisdiction OF any court
Of the state Of Montana. Without tho
presence OF that person to explain and cor
tify to her condition at the time The
,foetus was taken from her, my answer,
under the existing circumstances, would
incriminats me and be testimony against
myself. and on that ground l rsfnse TO
answer"
Twill you explain.'' asked the coroner,
"how it is that in answering the question
you would be inoriminated?"
"Ihe explanation" said the doctor.
would involve the answer TO your first
question"
"That is the only reason you have to
offer. on fact that you have to assign in
explanation of tho position that you A.
sumo in the claim of the privilege Of OK
emption in answering this question:,
In reply Dr.. KELLOGG said the reason was
given in his answer to the first question.
The coroner then said: "Desming the
question not a privileged ono by itself, and
not being able to determine by the evidence
of the witness that an answer given would
have tho tendency to inoriminate the wit
ness, and not being placed in the posses
sion Of any facts explanatory Of the evil
OouC0 tlut "Oulu 6uOW tA6t tu0 Au6W9x 20
be given to the question propounded would
constitute u link in the chain Of ciroum-
stances tending to incriminate the witness,
l hold that the doctor 10 compellable under
the law to answer the question. and upon
his refusal to do 30. / aojudge him guilty of
contempt. and that he be detained in Gus
tody by Sheriff G.. D. Curtis, for being
guilty of contempt, and to be detained 10
by him until he shall purge himself there
Of"
The county attorney explained that as
DR.. KellogR's attorney was going to apply
WAS understood that the doctor was only
constructively in the custody of the sheriff
until such time as q final decision WAS ar
rived at. 4rb
Attorney Kinsley had the papers all ready
and Immediately on the arrangement of the
details between the the sheriff. and the cor
= oner, he applied to Judge Hunt for a writ
of habens corpus on behalf of D.. Kellogg.
The application alleges that the doctor 10
illegally detained by Sheriff Curtis. for re-
fusing to testify in an inquest pending be-
fore Coroner Pleasants and a jury of six
over what is claimed to DO q body; that the
evidence raises a presumption OF felony
committed by DIR. Kellogg; that the doctor
refused to answer q question in regard to
the mother of the child. and that for such
refusal he was adjudged in contempt aud
committed to the custody Of the sheriff by the
coroner. The petition sets forth that the
coroner ia not vested with judicial powers
the question is in direct violation of that
section of the constitution which says:
N person shall be compelled to testify
against himself in a criminal proceeding"
The writ was ordered returned to-day at
one p. m.
The corones's jury will mess again Fri
day at two p. M.