The Anaconda standard. [volume] (Anaconda, Mont.) 1889-1970, 1894-01-14
MUST STAND TRIAL
Decision Of Judges Hunt and Buck in
The Case Of DR.. Kellogg.
THE DEMURRER OvERRULED
The Burden OF Proof Must Rest on
the Medical Board, and the
Doctor May Have a Jury
II He Chooses.
Special Dispatch to the Standard.

" ne SnoOseSs
Special Dispatch To the Standard
HELENA, Jan. l3.-Judges Hunt and
Buck, in the district court this morning,
handed down decision in the case Of the
state medical board against DR.. Edwin 5.
Kellogg. The proceedings came up in the
shape Of demurrer TO the complaint. To
sustain the demurrer would have thrown
the case out of court. To overrule the de-
murrer meant thar tho case. under the SUI
preme court decision, must go TO trial.
The judges oyerruled the demurrer aud
the case will be tried at date to be fixed,
either with or without n jury, as the doctor
may elect. The decision Of the judges is
rs follows:
THE only question necessary to be de-
cided is whether or not the affidavit upon
which the board of medical examiners of
the state acted when they found DR.. kel-
losg guilty of unprofcssional, immoral
and dishonorable conduct, stated facts
sufficient 10 warrant that'finding. II it
did, under the decision OF the supreme
court Of the state, there must be trial
before the district court. II II did not,
the whole proceeding must be dismissed,
and the action of the medical board
treated as a nullity. The information
charges, in substance, that DIR. Kellogg
cremated headless foetus, and when he
appeared before the coroner's Jury,
empanelled for the purpose of in
quiring into the transaction, hc
at first stated that the party
from whom the foetus was taken asked
not to have her name made known II pos
sible to avoid it, and that he had been AL.
viscd that he need not answer as to where
the foetas had come from unless he chose
to DO so.
"He declined to answer-not because no
was afraid of discriminating himself, but
10 avoid the publicity of the lady's name
in the papers; was willing to disclose the
name of the lady next day at 2p. IN. TO
the coroner, who will use his discretion in
the natter On the following day kellogg
testified: The person whose name you
ask for has left the state OF Montana and
is beyond and without the jurisdiction of
any court in the state. Without the pres
ence of that person'to explain and certify
to her condition at the time. my
answer, under the existing circumstances,
would incriminate me and be testimony
against myself, and on that ground l ra'
fuse to answer We are of the opinion
that proceeding instituted before med.
ical board for the purpose Of revoking the
license OF a physician is somowh hat analo-
gous to one for the disbarment OF an at.
orney-at-law. Tho supreme court Of the
United States and other authorities hold
in the latter case that no great formality
IL required. Did this information charge
enough against DR.. Kellogg to justify the
medical board In investigating the mat.
ter? We think il did. While it is true
under the statutes no one is required to
give evidence discriminating himself, OF
having that direct tendency, still where
an investigation Of this character is justi.
fable We do not understand that a person
against whom there are serious grounds
for the gravest suspicion can fold
his arms and reply to inquiries put TO hum
i have nothing to say. My conduct il
compatible with innocence and with guilt
1t is for you to find out whether am limo
cent or guilty. Certainly an attorney at.
law SO conducting himself, were charges
preferred against him, would be very
promptly disbarrcd for unprofessional
conduct. And, as We have stated, thii
case is analogous.
ave think that tho complaint is sufli
ciently specific to notify DIR. Kellogg ol
the nature of the charges preferred agains
him. II the allegations set forth thereir
opinion that it would then be necessar,
for him TO explain away q chain OF suspi
cious circumstances, and that II he doe
not do this that he would virtually be plead
ing guilty to the charge OF unprofessiona
and immoral and dishonorable conduct
He has "a legal right to refuse TO max,
any explanations, but the exercise Of sucl
legal right cannot prevent an inyestiga
ton into the charges and the circum
stances thereof, and n conclusion as {,
his guilt or innocence OF unprofessIona
and dishonorable conduct under them
IL is true that DIR. Kellogg may fully ex
plain away tho suspicious circumstance
alleged. but II he does not explain then
away, the action of the medical boar,
must be sustained. As reasonable met
they would have right TO believe his Owl
statement that his answers would incrim
mate him. IL such answers would incrim
inete him the board was fully justified II
its action. The trial may be before a jury
10 which special issues should be sub
mitted. The burden of proof mus be as
sumed by the medical board. Furthc
rules for the conduct OF the trial may b
laid down as tho case proceeds. The de
murrer 10 the proceeding is oyerruled an,
the matter ordered placed upon the calen
dar for trial"
An Innovation In Trotting Circles.