Commonwealth v. Brown

• Decision Date: 20 October 1876
• Citation: 121 Mass. 69
• Parties: Commonwealth v. David R. Brown
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

121 Mass. 69

Commonwealth v. David R. Brown

Supreme Court of Massachusetts

October 20, 1876

Argued May 15, 1876 [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material]

Suffolk. Indictment in six counts. The first count alleged that David R. Brown, on December 1, 1874, at Boston, "with force and arms, did unlawfully use a certain instrument, a more particular description of which is to the said jurors unknown, by then and there forcing and thrusting said instrument into the body and womb of one Ann Powers, otherwise called Emma L. Smith, she, the said Powers, otherwise called Smith, being then and there pregnant with child, with the intent of him, said Brown, thereby then and there to procure the miscarriage of the said Powers, otherwise called Smith; against the peace of said Commonwealth and the form of the statute in such case made and provided."

The fourth count alleged that the defendant, on December 10, 1874, at Boston, "with force and arms, did unlawfully use a certain instrument, a more particular description of which is to the said jurors unknown, by then and there forcing and thrusting said instrument into the body and womb of one Frances Ordway, otherwise called Frances A. Chase, she, the said Frances, being then and there pregnant with child, with the intent of him, said Brown, thereby then and there to procure the miscarriage of her, the said Frances; against the peace of said Commonwealth and the form of the statute in such case made and provided."

The indictment was found by the grand jury empanelled at January term 1875 of the Superior Court, to serve for six months, and was returned into court on February 6, 1875. On the first day of February term, before the grand jury had proceeded to the transaction of any business, and again, upon being called upon to plead to the indictment, the defendant filed a "special plea to the array of the grand jury," alleging that they were not impartially drawn from the whole body of adult male citizens of the county; that divers competent citizens were arbitrarily and illegally omitted from the list; and that they were not duly summoned and returned; and setting forth more particularly the grounds of objection. The district attorney filed a replication to this plea, traversing the allegations thereof, and setting up the St. of 1875, c. 5.

Before the empanelling of a jury for the trial of this plea, the defendant tendered a similar "special plea to the array of the petit jury," which Brigham, C. J., overruled, without calling upon the district attorney to file a replication thereto, and ordered the trial to proceed upon the special plea already filed.

Upon such trial, it appeared that the venire for the grand jury was issued in due form; that the jury list had been prepared by the mayor and aldermen by placing thereon such persons as they thought to be qualified to serve; that the mayor and aldermen, acting together with the city clerk, drew from the box the names of twenty-two persons, and afterwards of nine other persons, and the clerk made separate records of the twenty-two names and of the nine names, placing the latter in the order of their drawing, and delivered copies of both records, omitting from the first the name of one whom he discovered by the records of the city to have served as a juror within three years, to a constable, who discovered by the same records that three others of the twenty-two were exempt by law by reason of their employments, and summoned the remaining eighteen of the twenty-two, and four of the nine, and those so summoned were returned and served as grand jurors. The further particulars of the mode of drawing, summoning and returning these jurors are not material to be set forth.

The judge instructed the jury that the grand jury was a legal body, and the indictment lawfully presented. The jury returned a verdict for the Commonwealth; the defendant alleged exceptions to the rulings aforesaid, and to other rulings at that trial, which it is unnecessary to state; and the case was continued to March term 1875.

At that term, before the jury were empanelled, the defendant filed a motion to quash the indictment on the ground that "there is charged therein no legal offence legally, specifically and formally set forth, and the same is uncertain and insufficient." Brigham, C. J., overruled the motion. The defendant then pleaded not guilty, and was tried, and found guilty on the first and fourth counts of the indictment, and not guilty upon the other counts; and a bill of exceptions in substance as follows was allowed:

Emma L. Smith, called by the government, testified that on August 5, 1874, she saw the defendant at his office on Howard Street, in Boston, and consulted him as to her condition, and was thereupon told by him that she was either pregnant or had a tumor, and that his price for relieving her, by medicine, would be $ 25, or by an operation, $ 50; that the witness expressed her wish to take medicine for her relief, and, thereupon, received from the defendant a half package of medicine, for which she paid him $ 13; that the witness used this medicine as directed by defendant, without relief, and received, afterwards, more medicine from the defendant, for which she paid him $ 6, which she used without effect, and so subsequently stated to defendant, who thereupon advised her to submit to an operation by him, and exhibited to her instruments for operating on pregnant women, one of which, a steel instrument, he told her would throw her into labor in a few hours, and the other, a rubber instrument, with a syringe attached, which he told her might not operate for twenty-four hours or longer; that subsequently the defendant introduced into her person and to her womb, an instrument, which the witness did not see, causing her pain; that this operation was performed in a room she believed to be the defendant's office; and that, in about three days afterward, the witness, who remained in the house in which said office was, was delivered of a male foetus, which had apparently been a living foetus within a few days of its birth.

Frances A. Chase testified that on or about December 10, 1874, she called at the defendant's office, on Howard Street, saw the defendant and told him she thought she was four months advanced in pregnancy and asked him if he took such cases, and the price; that the defendant said he took such cases and the price was from $ 100 to $ 500, his lowest price $ 50; that she told him that all she could spare was $ 25; and that he then told her he sometimes took payment partly in cash and partly in notes, and agreed to take her case on these terms; and thereupon, two promissory notes were written for her to sign; and, on the evening of the same day, she carried these notes to defendant, paid him $ 25, and went into a room adjoining his office, where he caused her to be placed in a chair, the same which was exhibited to the jury at the trial,) and made an examination of her, which caused her considerable pain, which the defendant assured her would be over in a few seconds; and the defendant told her, as he assisted her from the chair, that she would be all right; that the witness remained in said house the following night, in a room to which the defendant introduced her, and also during a week afterwards, when she was delivered of a male foetus, which was living before the acts of the defendant upon the witness's person.

John F. George, a police officer, testified as follows: "I am a police officer of Station 3, and assisted in arresting the defendant about six o'clock P. M., on Sunday, December 13, 1874, at house 46 1/2 Howard Street, and on the same night took some surgical instruments--which I now exhibit to the jury--from the drawer of a secretary from a back parlor up one flight of stairs. On the following day I took the defendant into the presence of Emma L. Smith and Frances A. Chase, and asked them in the defendant's hearing and presence if they knew him; both said they knew him, one knew him as Dr. King, the other knew him as Dr. Brown. I asked them if he performed an operation on them, and they said he did. The defendant asked if they had been operated on previously by any other person; they said No, they came there to be operated on to get rid of children. The instruments exhibited are all, of any account, I found in the secretary; I might have left some others there; I took only such as I thought would apply to this case, as Dr. Cilley suggested; there were some small instruments there like sailneedles." All this testimony of the witness George, as well as the exhibition of the surgical instruments by him, were excepted to by the defendant.

A chair, called by some of the witnesses "a speculum chair," which there was evidence tending to prove was used by the defendant in performing the operation upon Frances A. Chase, was brought into court during the trial, and it and its mechanism were exhibited to the jury, against the objection and exception of the defendant. The testimony of two persons who were physicians and surgeons was admitted, against the objection and exception of the defendant, both of whom testified that most of the surgical instruments exhibited were adapted to producing the abortion of pregnant women, although none of them could be said to be so exactly designed for such use as not to be appropriate also for use in necessary and lawful acts of surgery.

The defendant testified in his own behalf that the surgical instruments exhibited were none of them adapted to use in producing abortion, and were all adapted and in common use in lawful and necessary surgical operations. The defendant explained to the jury the...