## Facts

- David R. Brown, a physician, was indicted on multiple counts for unlawfully using an instrument on two women with intent to procure miscarriages, in violation of Massachusetts law.
- One count alleged that in Boston on December 10, 1874, Brown forcibly used an instrument in Frances Ordway (also known as Frances A. Chase) with intent to cause a miscarriage.
- Police searched Brown’s premises and seized surgical instruments and a speculum chair; evidence suggested the chair had been used in the alleged procedure.
- Medical experts testified the instruments were adapted to producing abortions, although they also had legitimate surgical uses.
- After Brown’s arrest, an officer confronted him in the presence of one woman; she stated Brown had performed the operation and that she came “to get rid of a child.” Brown did not deny the accusation and instead asked whether she had been previously operated on by anyone else.
- Brown was convicted at trial and filed exceptions challenging the grand jury’s legality and various trial rulings.

## Issues

1. Whether statutes governing selection and drawing of jurors were within the Legislature’s constitutional authority.
2. Whether a validating statute (St. 1875, c. 5) could constitutionally cure irregularities in the drawing/empanelment of a Suffolk County grand jury as to indictments returned after the statute’s enactment.
3. Whether any reversible error occurred when a legally insufficient plea in bar raising only a question of law was submitted to a jury and then overruled by the judge.
4. Whether the woman’s accusatory statements made in Brown’s presence, coupled with his failure to deny and responsive conduct, were admissible.
5. Whether instruments and a speculum chair could be exhibited to the jury with expert testimony that they were adapted to producing abortions, despite lawful uses.
6. Whether medical books could be read to the jury as evidence.
7. Whether the trial judge erred by refusing requested instructions on matters of fact or refusing to use the defendant’s exact wording.

## Decision

- The Supreme Judicial Court overruled Brown’s exceptions and left the conviction in place.
- The juror-selection statutes were constitutional.
- St. 1875, c. 5 validly cured procedural irregularities in the grand jury’s empanelment for indictments returned after its enactment.
- No exception lay from submitting a legally insufficient plea in bar to a jury where the judge ultimately overruled it as a matter of law.
- The officer’s testimony about the woman’s statements in Brown’s presence and Brown’s non-denial/response was properly admitted.
- The instruments and speculum chair were properly admitted and could be explained by expert testimony as adapted to producing abortions; lawful alternative uses affected weight, not admissibility.
- Medical books could not be read in evidence to the jury.
- The charge was adequate; the judge was not required to instruct on facts or to use the defendant’s precise language.

## Legal Principles

- The Legislature may regulate methods for selecting and drawing jurors consistent with constitutional requirements.
- A curative statute may validate a grand jury’s authority as to indictments returned after the statute’s passage, notwithstanding prior procedural irregularities in venire, drawing, or empanelment.
- When a plea in bar presents only a legal issue and is legally insufficient, unnecessary submission to a jury does not furnish a ground of exception if the judge correctly overrules it.
- Accusatory statements made in a defendant’s presence may be admitted where the circumstances call for denial and the defendant’s silence or responsive conduct permits the jury to treat the exchange as an adoptive admission.
- Physical items connected to the charged act, and expert testimony describing their suitability for the act, are admissible even if the items have lawful uses; alternative uses generally bear on weight rather than admissibility.
- Medical treatises are not admissible by being read to the jury as substantive evidence.
- A defendant is not entitled to jury instructions on matters of fact, nor to instructions in the precise phrasing requested, if the instructions given correctly and sufficiently state the law.

## Conclusion

The court affirmed Brown’s conviction by sustaining legislative authority over jury-selection procedures and upholding a validating statute curing grand-jury irregularities for later indictments, while also approving key evidentiary rulings (adoptive admission and relevant instruments with expert explanation) and rejecting claimed instructional error, though confirming that medical books could not be used as substantive evidence.


Commonwealth v. Brown, 121 Mass. 69 (1876)