## Facts

- A physician, David R. Brown, and others were indicted under Massachusetts St. 1845, c. 27 for attempting to procure a miscarriage by using instruments and administering drugs (including ergot).
- The indictment alleged the defendants acted with intent to procure a miscarriage and that the woman died as a result of the acts alleged.
- Some counts alleged Brown personally used instruments; other allegations stated Brown advised, ordered, and commanded others to administer ergot, supplied the drug, and knew it was dangerous to life.
- The prosecution conducted a post-mortem examination; injured portions of the body were preserved in spirits and offered to the jury with the examining physician’s testimony.
- Brown was convicted; he filed exceptions challenging the indictment’s sufficiency (including duplicity and principal/accessory pleading) and the admission of the preserved anatomical evidence.

## Issues

1. Whether an indictment under St. 1845, c. 27 is defective for duplicity when it alleges multiple statutory means (instruments and drugs) of procuring a miscarriage and alleges death resulted.
2. Whether allegations that a defendant advised, ordered, and supplied a drug, leading to its ingestion and death, charge the defendant only as an accessory rather than as a principal.
3. Whether pleading that the woman died “whereby the defendant killed her” improperly charges manslaughter instead of the statutory offense with aggravated punishment for death.
4. Whether allegations describing additional conduct occurring after delivery (e.g., thrusting a hand into the womb after the child came forth) render the indictment defective or may be treated as surplusage.
5. For purposes of the statute, whether pregnancy continues after the child has come forth but remains attached by the umbilical cord and the afterbirth has not been removed.
6. Whether preserved injured body parts from a post-mortem examination may be exhibited to the jury with medical testimony on cause of death.

## Decision

- The Supreme Judicial Court of Massachusetts overruled the exceptions and upheld the conviction.
- The indictment was not duplicitous: alleging multiple statutory means of committing the same statutory offense was permissible, and proof of any one alleged means could sustain conviction.
- The allegations that Brown directed and supplied ergot, with knowledge of its danger, charged him as a principal in administering the drug, not merely as an accessory.
- The inclusion of language that the defendant “killed” the woman did not convert the charge into manslaughter; it sufficiently alleged death in consequence of the statutory violation to invoke the statute’s aggravated penalty.
- Allegations concerning conduct after the child had come forth could be disregarded as surplusage and did not invalidate the indictment.
- Pregnancy was treated as ending when the child has come forth from the womb, even if the umbilical cord remains attached and the afterbirth has not been removed.
- Injured parts of the deceased’s body preserved in spirits were properly exhibited to the jury in connection with the post-mortem physician’s testimony.

## Legal Principles

- When a statute defines a single offense that may be committed by alternative means, an indictment may allege multiple statutory means in one count without duplicity; proof of any one means alleged may suffice.
- Under St. 1845, c. 27, directing, ordering, and supplying a drug to be taken to procure a miscarriage, with knowledge of its dangerous character, may be pleaded as “administering” the drug as a principal.
- In a statutory scheme that increases punishment when death results, alleging that the woman died and that the defendant “killed” her may function as a causal averment supporting statutory aggravation rather than a separate common-law homicide charge.
- Immaterial or legally inoperative allegations may be rejected as surplusage without defeating an otherwise sufficient indictment.
- For purposes of procuring a miscarriage under the statute, pregnancy ends when the child has come forth from the womb.
- Physical specimens from a post-mortem examination may be shown to the jury when relevant to cause and manner of injury and accompanied by explanatory medical testimony.

## Conclusion

The court sustained a conviction under St. 1845, c. 27 by holding that an indictment may allege alternative statutory means of procuring a miscarriage, that a defendant who directs and supplies a dangerous abortifacient may be charged as a principal, that death-related language supports statutory aggravation rather than manslaughter, and that preserved anatomical evidence may be presented with expert testimony; it also treated pregnancy as ending upon delivery of the child.


Commonwealth v. Brown, 80 Mass. 419 (1860)