State ex rel. Baldwin v. Kellogg

36 P. 957, 14 Mont. 426, 1894 Mont. LEXIS 63

• Court: Montana Supreme Court
• Decided: June 4, 1894
• Status: Published

Opinions

De Witt, J.

This case comes to us entitled “ The Board of Medical Examiners of the State of Montana v. Edwin S. Kellogg.” It should probably bear the title as written at the head of this report.

The trial and argument of this case have taken a wide scope, but upon the threshold of the inquiry we meet, perhaps, the most important question involved. The complaint before the medical board was the original pleading in the proceeding, corresponding to the complaint or declaration in a civil case, or indictment or information in a criminal case. The medical board is a special tribunal, created by the medical law, and having jurisdiction over a limited subject matter. (16 Sess. Laws, p. 175.) The tribunal is composed of physicians, and not ot any persons who are required to be learned in the law. We are of opinion that, before such a tribunal, pleadings should not be too strictly construed, nor should a too close observance of the science of pleading be required. But it cannot for one moment be doubted that the complaint must set forth facts which constitute an offense. A defendant in such a proceeding is to answer a charge of unprofessional, dishonorable; and immoral conduct. If the judgment is against him he is deprived of the right to practice his profession, to which perhaps he has devoted a life of learning and labor. In a situation of this gravity a- defendant has the right, within the spirit

of the constitution, “to demand the nature and cause of the accusation” (Const., art. 3, § 16); that is to say, a defendant must be notified of what he is charged, and he must be charged with something. The complaint must set out facts which constitute unprofessional, dishonorable, or immoral conduct. This defendant has constantly insisted that the complaint in this proceeding does not set out such facts, and he so urges in this court. To that inquiry we will first address ourselves. We will examine, seriatim, what is said in the complaint. Taking up the first paragraph, and holding up to inspection the facts stated, we observe, first, that the defendant, a physician, threw into a furnace, with intent to destroy it, a human foetus, seven months old. Was this unprofessional conduct? This court is in possession of a few elementary physical facts. Among them is the fact that the mothers of the human race, living under the conditions of higher civilization, do not always, or indeed often, bear children without aid and attentions from persons skilled ■ in matters obstetrical. We also know that premature deliveries and accidents, commonly called “ miscarriages,” occur. 'At such times physicians are called to render services. In the course of such services the physician must become possessed of foetuses. It is professional that he should. It is not immoral or dishonorable that he should. No argument to this effect can say more than the simple statement. It is a postulate to which every intelligence assents. Nor can it be contended that the simple fact of destroying such a thing is unprofessional, immoral, or dishonorable.- In fact it must be destroyed. Sanitary rules demand its destruction; and incineration is certainly as proper as inhumation, or any other method of destruction. No reason is discoverable wdiv the physician may not properly destroy such waste human substance, as that he may destroy the amputated leg or arm of another of his patients.

But the weight, if any there be, of this specification of the complaint, is that the defendant destroyed this foetus with the intent to conceal its birth. If defendant were charged with criminal abortion, the concealment of the product of the abortion might be presented as evidence tending to prove his guilt. But the fact must not be lost sight of that in this case thecomplaint does not pretend to charge Dr. Kellogg with committing an abortion. Therefore the only charge of this paragraph of the complaint is that he intended to conceal a premature delivery of a human foetus. There are such deliveries which are accidental, unintentional, and Avanting in all criminal procurement, intent, or act, either by the mother, the physician, or any one, and due only to casualty or the weakness of nature. For aught that appears in this complaint the foetus described came from just such an accident. The court cannot presume, iu the absence of a charge, that the foetus came from a criminal act, instead of an innocent one. Therefore, assuming that this foetus was produced by no criminal act (and it must be so assumed when no criminal act is charged), and assuming that defendant was lawfully in possession of it (and the contrary is not charged), then was it immoral, dishonorable, or unprofessional to conceal its birth? The inquiry reduces itself to this simple proposition: Is it immoral, dishonorable, or unprofessional for a physician to conceal the fact that one of his patients has innocently suffered the accident of a foetal miscarriage? For nothing more than this is specified in the complaint. It is not specified that the defendant intended to conceal the fact of a criminal miscarriage or abortion. We unhesitatingly say that it is not immoral, dishonorable, or unprofessional for a physician to conceal the fact of such an innocent accident. It is but stating the common knowledge of all persons living iu and observing modern social life to say that it is natural and proper that a woman who suffers such an accident desires that it be not proclaimed to the community. As long as it is an accident, neither morals, public policy, nor law require that it should be so heralded. Both the patient and physician are right in concealing it. Such accident may be the disappointment and misfortune of the family, anxious for offspring; or it may be the imprudence, shame, and disgrace of her who has no social right to be in a condition Avhere such an accident could happen. In either case, in the absence of any criminal or immoral act or intent by any one in procuring the premature birth, the concealment is not immoral, dishonorable, and unprofessional. Publicity would work no good. Concealment works no harm. Publicity might bring needless suffering, modification, and distress, where ho crime or immorality had been committed in the miscarriage.

What is said in this opinion is possibly liable to misunderstanding, unless it be clearly kept in mind that we are treating only the charge and specifications of the complaint, and are not going beyond that pleading. At the risk of prolixity and reiteration we must add emphasis to our declaration that in this complaint no abortion and no criminal act are charged in reference to the production of this foetus. Let it be clear that we say nothing condoning sexual immorality, or tolerating the act of a physician who criminally interrupts the course of nature in the production of the species. We are not pronouncing upon whether Dr. Kellogg was guilty of immoral, dishonorable, or unprofessional conduct; but we do say that the complaint, by the natural and necessary construction, does not specify it. We do say that this first paragraph of the complaint could be specified against a wholly innocent physician; and we do say that no professional ethics or morality or honor can require a physician to herald to a community the accideuts or misfortunes of his patients, when no criminal or immoral acts are connected with such accidents or misfortunes, and no law or public policy requires their revelation. It is true that counsel for the medical board contend that public policy demanded that Dr. Kellogg reveal to the coroner the name of the mother of the foetus. But-that branch of the complaint will be discussed later. We are now treating only the allegation of the intent to conceal the birth, and holding that such concealment was not, in itself, in the absence of the specification of any criminal act or intent, either immoral, unprofessional, or dishonorable.

' We advance to the second specification of the complaint. It recites the holding of a coroner’s inquest over the acephalous foetus described in the first paragraph of the complaint. At that inquest the defendant was a witness on the eighth day of March, 1893. He testified that he had been called to attend a woman who had suffered a miscarriage, and that the foetus resulting therefrom was the one which he had thrown into the furnace. What he testified to before the coroner appears fully in the complaint, which is recited in the statement of this case preceding this opinion. It is the story of an ordinary accidental miscarriage. If what he testified was true as to the birth of the fetus there is nothing which squints at immoral, dishonorable, or unprofessional conduct. And let it be marked that the complaint does not say that one word which Dr. Kellogg uttered before the coroner’s inquest was false. It does not charge that he testified for the purpose of concealing a crime or impeding the administration of law. It is not charged that he suppressed the truth, or any part thereof, or spoke that which was false in any part thereof. He testified that the fetus was three months and a week old, but, for all that appears, this was his professional opinion. He refused to give, at the inquest, the name of the mother, for the reason that she had requested him not to make it public if it could be avoided, and he had been advised that he was not required to do so, but ■ that he would give the name to the coroner the next day, who could use his discretion. All this is set up in the complaint; that is, the complaint specifies that Dr. Kellogg testified, as just recited, at the coroner’s inquest. No immoral, unprofessional, or dishonorable conduct can possibly be construed from this testimony óf Dr. Kellogg before the coroner. If the miscarriage which he attended was innocently accidental (which it was, as far as it appears in the specification), it was not immoral, unprofessional, or dishonorable for him to decline to give the name of the woman, unless positively required to do so. Indeed, there is a very prevalent belief that it would be unprofessional and dishonorable for a physician to disclose the name and ailments of his patients without their consent, or unless he were required so to do. Dr. Kellogg refused to give this name at a public inquiry, for the reason that his patient had requested him not to, and he believed he was not required to. The question is not whether Dr. Kellogg disobeyed or disregarded the rules of evidence in judicial inquiries; but the question is whether it was immoral, unprofessional, or dishonorable conduct for him to refuse to testify, when he believed that honor required him not to, and he was advised that the rules of evidence did not require him to testify. Of course he could be compelled to answer this question if it were a legal and pertinent inquiry at a judicial investigation, and the legality and pertinancy of the inquiry would be determined by the proper tribunal. We are not discussing that .matter. It is not before us. The matter before us is, Was Dr. Kellogg’s attitude and testimony before the coroner’s inquest, on March 8th, immoral, dishonorable, or unprofessional? To the question we answer, “No.” He offered to disclose the name of the woman to the coroner (privately, it would seem), that the coroner might use his discretion. This portion of the complaint comes down to this proposition: It was not immoral, dishonorable, or unprofessional conduct for Dr. Kellogg to refuse to reveal the innocent, noncriminal secrets of his patient (for they are not specified to be other than noncriminal and innocent), when he was requested not to, and was advised that he was not required to. Whether this advice to him was sound, and whether he could be required to testify, is not here the inquiry.

So far in the complaint, we say, without hesitation, that there is nothing to engage the serious attention of a tribunal assembled to try Dr. Kellogg for immoral, dishonorable, and unprofessional conduct. But we now come to (he portion of the pleading which, taken with what precedes it, has occupied our most careful and deliberate thought. It has already had the investigation of the eminent tribunal of physicians who constitute the medical board, and the judicial inquiry of an able court of general jurisdiction. Our own study has impressed us with the importance of the final decision of this case. It is the first decision of this court upon the nature and sufficiency of a charge and specifications to put a doctor of medicine upon his defense for immoral, dishonorable, or unprofessional conduct. While we extend all approval to legislation intended to exclude immoral and dishonorable conduct from an honorable profession, yet the spirit of our American law is such that we must hold that a doctor, to be tried for professional misfeasances, is as much entitled to a clear charge and specification against him as has a burglar or murderer the right to a definite, specific indictment.

But as to the gravamen of the specification against defendant. The complaint goes on to say that on March 9th, the day following the giving of Kellogg’s testimony, heretofore discussed, he further testified at the inquest that the woman whose name was demanded had left the state, and was beyond the jurisdiction of any court of Montana, and, without her presence to explain her condition at the time the foetus was taken from her, his answer, under the circumstances, would incriminate him, and be testimony against him, and for that reason he refused to answer. Such is the specification of the complaint following the other facts set up in that pleading. Was this immoral, dishonorable, or unprofessional conduct? As before noted it is nowhere charged that Dr. Kellogg had committed an abortion. It is now to be observed that it is not charged that Kellogg procured the woman to leave the state for any improper purpose, or at all, or that he even knew of her intention to leave. It is not charged that what Kellogg testified on March 9th was false. It is not charged that Kellogg testified as he did on March 9th for the purpose of impeding the administration of justice, or hampering a judicial inquiry. It is not charged that his conduct had such result or tended thereto. Such charges are abundant in the argument of counsel, but in the complaint they are conspicuous by their absence.

So this portion of the complaint, like the other portions examined, reduces itself to a simple proposition. The prosecution contend that Kellogg admitted that there existed facts in his professional relations which were criminal, and that, therefore, he admitted that he was guilty of crime in his professional conduct, and that such conduct would of course be immoral, dishonorable, and unprofessional conduct. If this position is sound, and the complaint sustains it, there is a cause of action set out which would sustain a judgment of revocation of defendant’s license. It is appropriate here to inquire what crime Kellogg admitted, if any.' None being anywhere specified, the student of the complaint must grope for the crime, the admission of which it is claimed the defendant made. The defendant contends that a refusal by a doctor to testify, on the ground that his testimony would incriminate him, cannot be used against him on a trial for immoral, dishonorable, or unprofessional conduct. He cites decisions of cases in criminal prosecutions. Without applying that doctrine, or deciding whether it is applicable, we will regard the case from another point of view. The question is, Was Kellogg’s refusal to testify immoral, dishonorable, or unprofessional conduct? And the question is not whether it was evidence tending to prove that he was guilty of such conduct. If Kellogg had been charged with criminal abortion, or any other crime (which he was not), then his refusal to testify at the inquest might, if it were admissible as evidence against him, tend to prove his guilt. But, at the very most, the refusal to testify, in the point of view from which we are now considering it, was not an offense in itself, but was simply sought to be held up as evidence tending to prove an offense, and an offense which was not named in the complaint, but left to conjecture. This is a quasi criminal action. A defendant is entitled to a more certain charge.

On March 8th Kellogg said he would give the name of the woman to the coroner. On March 9th he refused to do so. But circumstances had, without Kellogg’s procurement, changed in the interim. The woman had left the jurisdiction. Then Kellogg expresses his opinion that, without her presence to state the truth, for him to give her name would criminate him. How it would criminate him we do not perceive. But he thought it would. This was his own opinion. He was not advised upon this point, as he was upon the matter of his testifying the day before. When he said that to give the woman’s name would criminate him it is fair to consider that there was in view what was likely to follow giving the name; that is, an inquiry into the facts of her miscarriage. Now, Kellogg believed that, in her absence, such inquiry would tend to criminate him. His position in this was consistent with ordinary human nature, as we see its operations. It was consistent with innocence. If one be placed under suspicious circumstances, and he is suddenly and unexpectedly deprived of the material testimony which would prove his innocence, as he believes, it is perfectly natural that he should think that inquiry into the circumstances would tend to criminate him. This is all that appears against Kellogg in the complaint. His conduct, to be sure, can be explained upon the hypothesis of guilt. It is entirely consistent with the fact of his having committed a criminal abortion, and attempting to conceal the same. If he were guiliy of such a crime he might have naturally pursued just the course which is specified in the complaint.

But, on the other hand, that which must demand our attention is that a wholly innocent man could have acted just as Kellogg did. Whether an innocent man would have so acted is not the inquiry. He could have, and he might have, so conducted himself; that is to say, the specifications of the complaint do not at all clearly exclude the supposition of the innocence of the defendant. They do not show that defendant could not be innocent, and the complaint be true. The complaint hints at guilt, but leaves open the hypothesis of innocence. If the complaint be true the defendant may be guilty, and he may be innocent. Pleading of such a nature would not do in a civil case. It surely must not be allowed in a quasi criminal case. Concede that the facts set up in the complaint raise a grave suspicion of the commission of an abortion by the defendant. Must he prepare for trial upon a suspicion? To be sure, a member of an honorable profession, as that of medicine, should raise his conduct above suspicion. But if circumstances arise which may, under one construction, cast a suspicion upon a physician and if the circumstances are suscejitible also of a construction consistent with his innocence then, if the construction of guilt is to be adopted, the guilt should be charged, and not left to inference. The plain fact is that the complaint in this case is curious. It seems as if the pleader hesitated at making a specification of immoral, dishonorable, or unprofessional conduct, and contented himself by narrating circumstances of suspicion, with the intention of seeing what the defendant might say. It was a process of throwing suspicion upon the defendant, and leaving him to prove himself innocent. Such is not the American system of judicial procedure. The complaint is a fascicle of hints, inferences, innuendos, and gossip, with the wraith of an abortion hovering over all.

The defendant was found guilty upon the trial. Whether the evidence was sufficient to establish immoral, dishonorable, or unprofessional conduct we do not know, as it is not before us. But if it were, and the defendant were clearly proven guilty, we would not be able to approve the judgment upon the complaint; for, as the complaint does not set forth facts specifying immoral, unprofessional, or dishonorable conduct, the judgment upon such complaint must be set aside.

The judgment is therefore reversed, and the case is remanded, with directions to sustain the demurrer.

Reversed.

Pemberton, C. J.,, concurs.