*1 OF MARYLAND FABRITZ STATE 29, September Term, [No. 1975.] Decided December *2 argued The cause was J., before C. Murphy, Eldridge Singley, Smith, Digges, Levine, O’Donnell, JJ. Cummings, Alexander L. Attorney General, Assistant Burch, with whom were Francis B. Attorney General, and Sengstack, Warren F. Attorney State’s County, Calvert for brief, on the appellant. for George Burns, Jr., E. Assistant Defender, Public with Murrell, whom Alan H. Defender, were Public and Richard J.
Clark, Defender, District Public brief, appellee. on the J., opinion C. delivered the of the Court.
Murphy, J., dissents dissenting opinion and filed a at O’Donnell, page 426infra.
Maryland (1971 Repl. Vol., Supp.), Code 1975 Cum. Art. (a) provides 35A parent person having or other
custody eighteen years age under “who child causes guilty felony. abuse to such minor child” shall be of a (b)7 the term to mean: statute defines “abuse” subsection injury “any physical by a or sustained as a result cruel inhumane treatment or as result of malicious act or acts .. ..” (Virginia) charged with Virginia Lynnette Fabritz was by abusing her three-and-one-half- violating this statute at the trial adduced Windy. Evidence daughter year-old County for Calvert Circuit Court jury in the before County brought Calvert to the was showed badly beaten 1973 in October p.m. on Hospital at 10:35 con- seventy bruises approximately condition inch ranging in from one body, size covering her tusions on arrival pronounced dead five inches. She *3 being peritonitis attributed to hospital, her death ruptured resulting perforated or duodenum. from a Windy’s injuries were the result that evidence showed instrument, fist, by an some trauma” caused “blunt eighteen twenty-four hours inflicted within kind of blow prior to her death. Windy custody of Thomas
Virginia left had Ann, resided, she on wife with whom and his Crockett Windy again p.m. until 1 on Virginia did see October very Windy was noticed that 3, which time she October Windy had driven with him her that told listless. Crockett bumpy gotten a result of a motorcycle sick as his and had on cramps was Windy complained of and p.m. 2:30 ride. At running fever; Virginia this to the flu. attributed slight badly Windy and, observing her after then bathed She of the spent the remainder body, put her to bed and beaten motorcycle. his At watching work on Crockett afternoon Windy appeared to be in a Virginia that p.m. observed hospital state, not take her to the but she did semiconscious bruises on ashamed of the she “was too because Windy thereafter body.” was evidence that daughter’s There period, p.m. a brief but at up appeared normal for and sat complained did not feel well. again that she and she vomited Virginia put Windy back to bed and called a p.m. At 7 Windy. Schaeffer, she look at friend, and asked that Connie Windy lying p.m. at 9 was on the arrived Miss Schaeffer den, diaper. limp a wet She and floor of covered questioned When Miss Schaeffer appeared unconscious. Windy’s body, Virginia Virginia the bruises on about Windy’s “Tommy hard.” con- responded, hits [Crockett] p.m. Ann Crockett contacted worsened and at 9:45 dition bring Windy hospital hospital. advised to to the She was hospital with immediately. After Mrs. left for the Crockett my Virginia Schaeffer, I killed Windy, told Miss “It fault. Virginia hospital Shortly thereafter, went to the her.” Windy was dead. learned that
Expert evidence was adduced to show that a child vigorously complain peritonitis once she would complain injury and would continue to until sustained the coma; injuries that at the time the were the onset of a pain sustained, there would have been immediate and the poorly; pain begun to feel that the would child would have by fever, gradually increased, vomiting, followed have prior appetite; death, lack of that within six hours stuporous comatose; child would have become that operation performed have lived had an been prior death; at least twelve hours and that she within surgery if would have had a chance to survive had been performed up pathologist to an A hour before death. opinion, upon it was based testified that his medical degree injury, multiplicity of wounds and his Windy’s body, examination of did not happen accidentally. indicating was no There evidence *4 Virginia injuries struck the blows which caused the initial child, Virginia her nor was there evidence to show that knowledge custody had that the in whose she left Windy would abuse her. jury parent
The trial court instructed the that a is under duty provide an affirmative reasonable medical guilty necessities to his child and would be of child abuse under the if treatment afforded to the child was statute the physical injury”; “cruel or inhumane and it results that itself”; “physical injury may be death and that “the the worsening medical unattended obvious serious condition consequences if and if more cruel inhumane serious meaning result, physical injury is in within the itself... they jury used the The found the terms as are Statute.” Virginia guilty of offense and she was sentenced to five years’ imprisonment. judgment Special Appeals reversed the
The Court statute, guilty conviction, holding that “to be under simply injury, to have caused accused must shown seek assistance.” Fabritz aggravated it failure to In so A. 2d 324 at 327 App. 708 at nothing in the concluding, said that there was the court legislative indicating it was the intent that statute provisions parents who withhold the encompass its within care, including from their life, medical necessities whether granted certiorari to consider children. We Appeals properly interpreted the child Special Court of statute. abuse provide Virginia’s that failure to State contends this case in the circumstances of care
medical meaning of within the the statute. to child abuse amounted urges showed specifically, that the evidence the State More known as Windy was the victim of medical condition that syndrome”; beating Windy that “battered child gradual “in a peritonitis which resulted suffered caused general of the child’s health and deterioration continuous death”; although there well-being culminating in her who Virginia was the individual beat evidence that was no “fully of her beaten condition Windy, she was aware child’s period medical for a of several hours seek . .. failed [but] . .. her amounted to her inaction child attention abuse”; while there was no evidence and that any “malicious act” Windy’s resulted from by Virginia, her failure to obtain perpetrated daughter constituted, within the sense attention for statute, inhumane treatment” contemplated “cruel or contributing “physical injury” cause of the was a the child sustained.
421
Virginia’s
argued
guilty
On
behalf it is
that to be
of child
35A, person
have
abuse under
must
“caused” the child §
physical injury
suffer
as a result of cruel or inhumane
Virginia
injuries
treatment.
claims that 35A “concerns
as a
result of the
or
treatment
acts of
accused” and that
Windy
injured
consequence
because
and died as a
of
herself,
blows inflicted
someone other than
her failure to
for
obtain medical aid
was not the cause of the child’s
Virginia
gist
death.
maintains that the
of the
statutory
offense
child abuse is not cruel or inhumane
treatment but
injuries upon
rather
infliction
as a
of such
result
treatment.
cardinal rule
the construction of statutes is to
Legislature.
effectuate the real and actual intention of the
Purifoy
Dep.
Trust,
58,
273
v.
&
Md.
327 A. 2d
Merc.-Safe
(1974);
Serv.,
390,
Comptroller,
Scoville
Inc. v.
269 Md.
Height
State,
(1973);
A. 2d 534
v.
225 Md.
170A. 2d
(1961).Equally
principle
well settled is the
that statutes
reasonably
purpose
to be
reference
are
construed
to the
accomplished,
Montgomery
to be
Walker v.
Md.
County,
(1966),
light
and in
A. 2d 181
of the evils or mischief
sought
remedied,
State,
to be
Mitchell v.
115 Md.
80 A.
every
(1911);
words,
statutory
2d 1020
in other
enactment
entirety,
its
and in
must
“considered
the context of the
enactment,”
purpose underlying
Giant Md. v. State’s
[its]
Attorney,
267 Md.
298A. 2d
at 432
Of
course,
according
a statute should be construed
to the
ordinary
import
language,
and natural
of its
it is
since
language
primary
of the statute which constitutes the
source
legislative
determining
Grosvenor v.
intent.
Supervisor Assess.,
It provisions they of 35A as stood at the that we consider § alleged under the time of the offense. Codified subtitle Abuse,” legislative purpose “Child declared statute’s protection subject “the of children who have been the indicated, abuse. . ..” As heretofore the statute defines “any encompass injury “abuse” to sustained a child aas result of cruel or inhumane as a treatment or result of malicious or acts.” act Under the statute, any having custody eighteen under of a child years age guilty felony. who “causes” such abuse is of a precursor chapter 35A was 743 of Acts of § originally (1957) which was codified as Code Article 11A Children”; and included under on the subtitle “Assault statute, which was recodified as Article 35A§ chapter 1970, provided 500 of the any person Acts of having custody of a years age minor child under fourteen maliciously beats, “who strikes or otherwise mistreats such degree require minor child to such as to medical treatment” *7 guilty would felony. appear of a It would from its terms that enactment that was not to intended reach of acts constituting, in individuals one another, form or an assault on a child. by It was not until 35A was amended § chapter Legislature 835 of the Acts repealed of that the “maliciously beats, strikes, the or otherwise mistreats” test abuse, place of child in substituted its a new — different measure of by the offense one defined new (b) physical subsection 7 in by terms of caused “cruel or inhumane treatment or as a result of malicious act According title, or acts.” its of purposes to one the underlying “generally the amendment of 35A was § extending] the law child Considering abuse.” the particular use and association words and definitions used 35A, in ambiguity we think a or doubt exists as the to § exact the provisions, justifying application reach of statute’s principle permits of the courts in such to circumstances give ascertain and effect the real intention of the Legislature. Chesapeake Park, See Clerk v. Beach Bosley, 248A. 2d Domain v. 242Md. 217A. 2d 555 Legislature,
We it by think evident that the its 1973 35A, plainly amendment to intended broaden § area proscribed punishable in conduct child abuse cases. Its use comprehensive the amended version of 35A of the § coupled child, a phraseology “who causes abuse to” minor two-pronged “abuse,” definition of the term with its broad supports Legislature, repealing the the view that criminality in child abuse cases then narrow measure redefinining provided 35A, offense, undertook change scope in the of the significant a of substance to effect making In it an a prohibitions. offense for statute’s having custody “cause” the child suffer of a minor require Legislature that the injury,” did not “physical a upon child or from physical injury from a assault result initially applied the accused physical force encompassing instead, in more individual; provided it injury physical if was committed manner, that the offense course of conduct either from a resulted to the child byor “malicious constituting inhumane treatment” “cruel or act or acts.” Dictionary (3rd 1933), ed. Law defined Black’s
As .”; . . wrong damage done to another “[a]ny or injury is Third New International in Webster’s is defined the term harms, damages, (1961) “an act that Dictionary 1164 suffering or infliction of undeserved unjust or hurts: an if physical one it injury course, would be harm.” Of body. To be “cause” pertains relates to have to be another, person manner injury some brings effect or about an “condition that accountable for action or state.” a resultant produces or calls forth Dictionary 356. International New Third Webster’s *8 meaning injury” broad “physical the Affording the term mandate, we a think 35A would seem to the context § responsible having criminally as “caused” parent would contemplated in the sense his child injury to a such parent’s “cruel or the if, result of by the statute bodily harm treatment,” child suffered inhumane consequence of initially sustained as to that additional State, 223 Palmer v. upon him. injury originally inflicted Cf. affirming an (1960) where in 2d 467 A. Md. mother who of a manslaughter conviction involuntary knowingly permitted her infant subjected child to be to beatings prolonged by paramour, her we concluded that although the direct immediate cause of the child’s death by was attributable blows struck paramour, mother’s her paramour’s failure to remove child from the presence gross negligence constituted and criminal and “was contributing cause of . . . unfortunate death.” [the child’s] atMd.
Whether, in view of trial, the evidence at adduced Virginia’s Windy failure to obtain medical assistance for resulting constituted cruel or inhumane treatment physical injury is, course, the crux this appeal. parent Maryland That a legally under law is obligated provide necessary medical to his care child is (1970 Vol.) Repl. 72A, 1; Craig clear. Code Art.
Md. 155 A. 2d City Fire Baltimore Salvage Corporation, Insurance 148 A. 2d Virginia severely That Windy’s knew of beaten evidence; indeed, is manifest condition from the as the photographic painfully demonstrate, exhibits in the case so Windy multiple assault, bore the bruises of a vicious Virginia early p.m. was aware least as as 2:30 on hour, p.m. October 1973. Between that and 10:35 when Windy died, Virginia failed to seek or obtain although, assistance as the evidence heretofore outlined so plainly indicates, obviously the need was therefor compelling urgent. Virginia’s There was evidence that upon failure to seek such was her assistance based covering Windy’s body realization that the bruises become known were the child examined or treated physician. graphically Other evidence the case all too suffering Windy subjected by illustrated the to which Virginia’s provide needed save failure treatment jury properly life. We think the could have child’s that, Virginia’s concluded from the evidence as a result of steadily conduct, Windy’s permitted to condition was by death; deteriorate until the child’s ordeal was ended Virginia’s bodily failure act caused to sustain beyond upon injury to and additional that inflicted *9 the original cause of the assault and constituted reason of led worsening the which progression and of further Virginia’s death; circumstances Windy’s and that these or inhumane” within the “cruel of was treatment commonly as those terms are meaning of statute and of Accordingly, we the Court conclude understood. interpretation of 35A Appeals in its Special was error § Virginia’s conviction. in its reversal of Judgment Special the Court of of Appeals reversing judg- ment the Circuit Court for County vacated; Calvert case remanded to the Court of Special Appeals considera- tion other issues presented to that court on appeal, decided; but not costs to abide the result. dissenting: O’Donnell, J., 20-year old agree conduct of the
Although I Fabritz, mother, Virginia her three-and-one-half- toward year-old daughter, reprehensible, was and that as attempt rem result of her to treat child with “home edies,” promptly and her failure to more seek medical attention, steadily “Windy’s permitted to condition was by death,” until child’s ordeal was ended deteriorate majority finding I her con cannot concur with the proscription Maryland duct to be within the Code (a). I Supp.]) Art. 35A Repl. Cum. (1957, 1971 Vol. [1975 Special Appeals judgment the Court affirm the App. A. 2d 324 State, 24 Md. Fabritz colleagues may have been my distinguished I fear that they exhibits, describe swayed by photographic multiple Windy bore demonstrating” bruises “painfully they “too assault,” find and which a “vicious as a result of Windy suffering to which graphically illustrated the provide the treatment by Virginia’s failure subjected *10 life.” is a case needed to save the child’s It such this as Wolfe, cogent B., brings observation of in forth Wright, (1842) 10 116 M. & W. where he Winterbottom observed, cases, frequently apt been noted “hard it has are 1 to introduce bad law.” Repl. (1957, 1 72, Art. of the Code Vol. Cum. [1975 § Supp.]) upon duty provide “support, places parent a to care, nurture, education,” and welfare for a under eighteen section, years age. of to this it is Pursuant upon provide parent attention, a incumbent medical when necessary, child, although to a minor itself statute does specific not in terms mention “medical care.” killing The unintentional omission, another through gross negligence, perform legal duty owing him, involuntary manslaughter at common law. See Marshall, Crimes,” (6th 1958). Clark 10.12 ed. & “Law § Perkins, See Law,” (1969), also R. pp. Ch. “Criminal principle recognized 71-73.This been has well this state both (1960), 164A. Palmer v. 2d 467 Craig State, Md. 155A. 2d Craig, Judge
In Prescott, writing for our predecessors, stated: universally recognized is almost
“[I]t that where the defendant owed to a specific deceased legal duty, perform but failed to same, death resulted to the deceased because of the non-performance duty, (at of the least under circumstances where the failure perform gross constituted negligence) wanton guilty involuntary defendant is manslaughter. 1 Warren, Homicide, Sec. principle states the succinctly, rather as follows:
‘Where the legal defendant owed the deceased a duty, any or contractual duty omission of the Holmes, 1. See also the observations J. Northern Securities Co. v. States, (1904), “great cases, cases, United 193 U. S. hard like make bad law....” deceased renders resulting death of the manslaughter. chargeable the defendant he plain one which duty have been must perform or contract law was bound necessary intent is not personally. A criminal duty need offense. The breach of the element a criminal offense. have been * * * manslaughter guilty of
‘The defendant neglected provide his wife with he where attention, or with necessaries attention; charge with medical in his infant ’ ” * ** 220 Md. at omitted]. [citations *11 A.2d at 688. charge be felonious “the basis of the however
Where gross or shown have been negligence it must to] ... [be State, 156 Md. negligence.” Neusbaum v. criminal negligence” has (1928); “gross or criminal A. 877 mean “a wanton or interpreted this Court been Craig State, supra, at life.” v. disregard for human reckless citing Hughes State, 198Md. v. 597, A. 2d at 49, 109A. 2d 909 v. 2d 419 Thomas A. 577, 128 A. (1954);Clay State, 211 Md. 2d involuntary manslaughter of husband for Convictions Craig State, in predecessors our and wife were reversed beliefs, religious because of their supra. There, parents, “constantly home, child at treated their six-month-old during illness, intervention, tenderly,” medical without pneumonia, proved to be fatal. diagnosed as later prompt that at trial was adduced however Evidence “may” have saved the child’s life. After attention medical observing “parents are vested with reasonable that regard in to when attention is needed discretion children,” the Court stated: their ordinarily prudent careful
“If
that
we assume
during the
aid
in medical
parents
have called
therefore,
and,
illness,
stages
the child’s
initial
guilty,
time,
the defendants were
this
ordinary negligence
failing
physician,
in
call in a
nothing
testimony
we still find
that would
finding
during
early period
sustain a
this
parents displayed
child’s
illness the
‘a wanton
disregard
life; and,
for’
if
reckless
the child’s
we
assume that the seriousness of the child’s illness
easily
discernible to them the last two or
days
failure,
life,
three
of its
so that their
at that
time, to
gross
call medical aid did constitute
negligence, the record fails to disclose that
this
proximate
failure was the
cause of the child’s
death,____”
been in the degree, second permitted since she paramour “prolonged her to inflict beatings” and brutal upon twenty-months’-old Although child. the Court “gross concluded that this negligence” criminal on her part contributing proximate was a death, cause of the child’s predecessors there, our citing Wharton, Criminal Law and (Anderson Ed.), Procedure Section general set forth the rule “A only criminally that: liable for what he has caused, is, there relationship must a causal between his act and the harm prosecuted.” sustained for which he is *12 353, 223Md. 164 A. 2d at 474. goes saying,
It without appellee if the had been provided shown not have her child with medical attention — through “gross or negligence” criminal with “a wanton or — disregard reckless human subject life” she would be prosecution involuntary for common law manslaughter. See (1961). 21 Md. L. Rev. 262 majority however undertakes parallel 2. There is certain between the facts in the instant case and Craig State, supra; parents attempted, those in v. in both cases albeit unsuccessfully negligently, suffering; to alleviate the child’s in neither respective parents malady. case were the the initial cause the child’s 430 (a), engraft upon provisions 27, Art. 35A appellee charged,3 the elements which the was
statute under involuntary manslaughter and law offense of the common phrase equivalent equating the “cruel or result reaches “gross negligence” or criminal treatment” with inhumane “injury” with term substituting the word “death.” statutes, prohibit
Penal those command or certain violation, penalties establish for their must be acts and strictly against in favor of the accused and construed State, 611, 914, 601, 202 Md. 97 A. 2d state. Wanzer v. 918 172, 73, (1953); State, 176, 188 52 2d 74 Weinecke v. Md. A. requiring (1947). of such The rule strict construction punishment proscribed means that will statutes plainly language falling within the extended to cases not 115, Higinbothom, 130, 48 v. 187 Md. A. the statute. Smith 192, Fleming, 196, 195 754, (1946); v. 173 Md. A. 2d 761 State 377, 379, 1074, A. 392, (1937); 115 Md. 80 Healy State, 393 v. 364, State, 1020, A. (1911); v. 115 Md. 80 1075 Mitchell (1911). that no can be It is thus fundamental 1022 violating unless the act a criminal statute held for plainly within the letter and charged comes both which he is charge is laid. spirit which the State of the statute under A. Corp., 274 Md. 2d Sinclair Sinwellan 101, 106, A. 2d Fowel Loughran Lord Baltimore in Daniel Co. v. As stated 38, 47, A. Co., 178 2d Candy Md. and Tobacco power its in the exercise of legislature, (1940) “[t]he offense, punishable a crime or constitute declare what shall precision what acts with reasonable must inform the citizen may have a certain so that he prohibit, it intends it is his know what acts of conduct and rule understandable 19; 773, “CriminalLaw,” C. sec. duty Am. Jur. avoid. 14 abuse, unlawfully charged appellee “... did The indictment by inflicting Lynn Fabritz, a minor child ... treatment, result of or as a and inhumane sustained as result of cruel acts,....” malicious act *13 431 Connally Co., v. General Construction 269 U. S. J. 67; 126, Ct. L. Ed. 322.” S. points out, (a) punishes, majority
As the Art. 35A any felony, parent, person a or other “who causes abuse to (b) such minor “Abuse” is defined child.” subsection to “[A]ny physical injury injuries by mean: . . . or sustained child as a of cruel or result inhumane treatment or as a result . of malicious act or acts . . .” The statute thus punishes [any physical injury who “causes or sustained child as a result be] [to [minor] cruel or inhumane treatment or as a result malicious act added) (emphasis or .” ... acts] majority, despite appears what to be the and clear unambiguous meaning “physical injury injuries,” or reads appellee the statute that the to summon into failure of proper child, they medical attention for her minor which find to treatment,” resulting have been “cruel and inhumane worsening in a leading the child’s and condition ultimately death, “physical injury.” to her constituted statutory language
It is axiomatic that is “[w]here plain ambiguity and free expresses from and so a definite meaning, meaning and conclusively sensible presumed meaning Legislature be the which the intended. liberty legislative
The courts are not at to surmise the contrary intention be words and letters of the statute, or making insert delete words a view of express the statute an intention is different from its plain meaning.” State, supra, Fowel v. at 2dA. at 526. See also supra, Mitchell at A. at 1022. Higinbothom, supra, As stated in Smith A. 2d at language doubt, is clear and free from “[w]here power no Court has to evade it forced and unreasonable construction order to own policy assert its ideas of morals.” just
It is benign spirit inconsistent “with the of our give interpretation law to a criminal statute which can only by be maintained keen ingenuity, and scholastic meaning [might] consign of the law which [since] [t]he prison plain man obvious, easily . . . should *14 State, Md. ordinary capacity.” James v.
understood an (1885), it is functions 242, 253 where further stated: “[o]ur enforcing interpreting legislative the will limited to are very declared; it be been when it has permit any private in sentiments of our unwarrantable us to give to these the which we own to construction affect at 254. statutes.” Md. only by a “keen and scholastic
It seems me to to phrase majority is able read into the ingenuity” that the to interpretation injuries,” an this “physical injury or worsening or a condition deterioration of means clearly in a construction seems which results death. Such liberty “[cjourts to contrary precept the are not at to making with a view toward the insert or delete words plain which is different from its express statute intention 609, 617, A. meaning.” State, 244 2d v. Md. Gatewood 105, 2d supra, v. at 110 A. at Fowel legislature suggest that such the place At no does Prior to the amendment of intended. construction penalized Laws of the statute 835 of the by.Ch. statute beats, maliciously strikes or otherwise “who require degree as to child to such minor mistreats such Special Appeals pointed the Court of As medical treatment.” out, “the express purpose of the [1973] revision was to only of abuse and encourage reporting of instances rearrange language thereof.” incidentally and revise the nothing 2d at 327. There is 332 A. App. Md. at justify preamble, Act, in its nor Title to the majority. Fabritz by the See interpretation here reached 327, nn. and 5. 4,332 A. 2d at State, supra, 714, nn. 3 and New International “Death,” Webster’s defined all vital 1948), is (2d cessation Dictionary ed. “[t]he resuscitation;.. capability . act or without [the] functions punishes who causes one dying.” The statute fact of — — by conduct injury” one who causes death “physical or acts.” inhumane,” by a “malicious act which is “cruel or existing legislature knowledge Ascribing applied in Palmer v. manslaughter, involuntary law as Craig State, supra, I see State, supra, cannot how it intended, provisions could have when it revised (a), of Art. 35A as limited the definition of “abuse” supersede (b) in subsection the common law of man- slaughter, apply penalty, and indeed to a different where parent, by negligence promptly pro- criminal fails to vide minor its child with medical care and thus contributes death of the child. theoretically although here, mother acts of the “physical cause such as to criminally negligent were not already been injuries had daughter; those injury” to her more Although failure to party.4 by a third inflicted to the “act may have contributed aid promptly seek *15 all vital of the “cessation have hastened dying” and of any part cause did not functions,” on her such failure well defined. terms are injuries” as those injury or “physical falling intending punish outside acts statute, clearly to The manslaughter, assault, of but short law of the common or treatment” and inhumane proscribe “cruel to undertook “physical directly result in act or acts” “malicious Virginia Although a child. injuries” to such injury or duty legal she owed performing a in Fabritz’ non-feasance prosecution for subjected her a may to daughter, have her language without the was manslaughter, her conduct invoked. of the statute intention obvious Special by the of reached Court agree I with the conclusion statute, the accused guilty under the Appeals “that to be simply injury, the to have caused [to must be shown by seek assistance.” aggravated it failure to [medical] have] App. 714, A. 2d at 327. at though I view of the Secondarily, concur with the even “if the statute is committed majority, that an offense under either, from a course physical injury child resulted to the of by treatment,’ constituting and inhumane or ‘cruel conduct battery,” acquitted the trial court appellee “assault and was by any hitting assaulting finding of the child in this case of or “no evidence Crockett, co-defendant, (“Tommy”) in whose A Thomas this defendant.” custody two-day period been, during when she the minor child had the subsequently acquitted physical tried and for was sustained her lack of evidence. ” agree acts,’ I ‘malicious act cannot that under the facts — case, of this appellee period failure over a — eight approximately hours to seek out medical attention statute, constituted such a I read “course of conduct.” As inhumane,” juxtaposition the term “cruel with the acts,” implies words “malicious act or its application, for equivalent element malice to an acts act or shown requires scienter “malicious” a to cause the child injury. object suffer Since the of the statute proscribes causing physical injury wanton acts a to such child, it minor was not within the intent the statute to punish having poor negligent one made and even attempt treatment, good albeit made in faith. appellee’s
There no evidence negative that the action failing promptly imputed more obtain assistance permit the child to her intent to to continue to suffer to die. When she noticed was in state, liquids give her strength. semi-conscious she fed her Upon noticing physical condition, a deterioration her she upon called friend her. was to assist The child then bathed alcohol, temperature taken and she dressed pajamas. Thereafter, company fire volunteer ambulance hospital. Although was called and the child was taken attempted, deficient, the treatment negligence, with obvious appellee way was in no intended cause her daughter any greater suffering, Craig or death. As in State, supra, appellant choice made was the *16 wrong one; though may even it have constituted an abnegation parental duty parental and an abuse of discretion, such failure seek medical care cause, inflict, “physical injury.” intended to Although might continuing facts which establish a “course treatment, conduct of cruel and inhumane” resulting in “physical injury” may visualized, to a minor we do suggestion not have There such evidence here. no appellant assaulted, evidence that had ever beaten or cruelly abused the child or inhumanely. treated it We only promptly failure have mother’s summon aid, coupled expert testimony that with — — before death much as an hour as surgical intervention appellee’s live.” The had a chance “would have the child any showing of regard, without negative in this conduct and inhumane scienter, “cruel did not constitute malice or contemplated within the terms the statute. treatment” judgment of the Circuit Court I reverse the County. Calvert COMPANY
STEUART PETROLEUM BOARD al. et OF ST. MARY’S OF COMMISSIONERS COUNTY COUNTY ET AL. Term, 41, September 1975.]
[No. December
Decided