Craig v. State

• Decision Date: 17 November 1959
• Docket Number: No. 47,47
• Citation: 220 Md. 590,155 A.2d 684
• Parties: Ollen Ottis CRAIG et ux. v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 590

220 Md. 590

155 A.2d 684

Ollen Ottis CRAIG et ux. v. STATE of Maryland.

No. 47.

Court of Appeals of Maryland.

Nov. 17, 1959.

Vincent R. Groh and Jacob B. Berkson, Hagerstown, for appellants.

James O'C. Gentry, Asst. Atty. Gen. (C. Ferdinand Sybert, Atty. Gen., and James F. Strine, State's Atty., for Washington County, Hagerstown, on the brief), for appellee.

Before BRUNE, C. J., and HENDERSON, HAMMOND, PRESCOTT and HORNEY, JJ.

PRESCOTT, Judge.

Ollen O. Craig and Lillian S. Craig, his wife, appellants, were tried and convicted, before a judge and jury, in the Circuit Court of Washington County of the crime of involuntary manslaughter. They were indicted separately, but the cases were consolidated for trial. From sentences imposed as a result of their convictions, they have appealed.

The State proceeded upon the theory that the defendants were grossly negligent, as the parents of their deceased minor child, Elaine, in failing to supply medical care for the child during an illness that proved fatal. The defendants contend here that their motions for directed verdicts should have been granted for several reasons: (a) that there was no duty imposed upon them by law to furnish medical attention for their child; (b) that, assuming there were negligence upon their parts, the State failed to prove that such negligence was gross or culpable, and that it caused the child's death; (c) that they are conscientious believers in the Church of God and base their belief in divine healing on that portion of the New Testament, the Epistle of James 5:14, 15--'If there be any sick among you, let him call in the Elders of the Church,' and when their child became sick, they cared for it in accordance with the teachings of the Bible, which is a legally permissible equivalent of, or a substitute for, medical attention; hence they did not neglect any duty imposed upon them, and the evidence was insufficient to submit the case to the jury trying them for manslaughter; and (d) that they were convicted without due process or equal protection of the law.

State Trooper Hasenbuhler, the first witness called by the State, had taken a statement from the defendants the day after the child's death. In substance, they told the trooper that the child was nearly six months' old and had been sick for about eighteen days before its death, during which time it had had no medical care due to their religious training, but they had treated it constantly and tenderly during the entire time in accordance with their religious convictions; that during the initial stages of the child's illness it did not seem to be very ill, her condition being 'sort of up and down,' and she would seem to rally and seem to be fine and, at other times, she seemed to be sick and 'wouldn't take nourishment too well'; that 'at stages' the child had difficulty in breathing and they noticed a swelling in her left arm, which the defendants thought would leave as soon as the child was well; and that during the last two days the child seemed to get worse and finally died on November 25, 1958.

Dr. Roy B. Turner, Associate Pathologist of Washington County Hospital, performed an autopsy upon the child during the afternoon of the day of its death. He stated the primary condition that he found was extensive penumonia of both lungs in an advanced state, 'with complication of acute suppurative arthritis in the elbow joint and some hemorrhage in the adrenals.' He made an examination to determine the type of organism responsible for the infection, and found it to be sensitive to all the antibiotics (nine in number) with which it was tested. When asked, 'As a medical doctor, then, you can state that this antibiotic would have destroyed the germ [that which infected the child's lungs], is that correct?' he replied, 'Not necessarily, there is an implication there that the drugs might have been useful in treating the disease.' He was then asked the specific question, 'Doctor, from your examination, can you state whether or not medical treatment would have prevented the child's death?' to which he replied, 'It would depend, of course, this would only be a speculative manner, would depend on the time at which the treatment was instituted and whether the individual responded to treatment and so forth.' Finally, in response to a question by the court asking if the doctor could give an opinion on whether, if antibiotics had been administered, 'it could have brought about recovery,' he answered, 'I would think that if appropriate treatment were given that the possibilities would have been excellent that the infection could have been controlled.' (Emphasis added.)

Dr. Wells, the County Medical Officer, saw the child shortly after its death and ordered the autopsy made. He examined the reports of the sensitivity tests and they showed that the organisms in the child's lungs would have responded to treatment with antibiotics; he thought that early use of penicillin, alone, 'would probably have cured the child,' and he would say that if antibiotics had been administered in the first week of the child's illness, it would have 'had a very good chance of recovery.' This and Dr. Turner's statements, quoted above, was all of the expert testimony that related to the cause of the child's death; and, at this point, the State rested.

Mr. Craig took the stand and made a lengthy statement, which was fully concurred with by Mrs. Craig, but only a very small portion of which had any relevancy to the issues involved. He made it crystal clear that the reason the child received no medical aid or assistance, either as a result of his efforts or Mrs. Craig's, was due to their religious trainings and convictions, 'based on the word of God,' and not from any inability on their part, financial or otherwise, to procure the same.

Several other witnesses were called on behalf of the defendants, but the only relevant part of their testimony of any substance was a corroboration by Alice Marquiss that the seriousness of the baby's condition was not apparent from the beginning of its illness. She stated, 'the baby was up and down'; she knew it was seriously ill on the last Saturday (November 22) before its death, and this was 'noticeable,' at that time, to both Mr. and Mrs. Craig.

At the conclusion of the testimony, the motions for directed verdicts were renewed, and denied by the court; the cases were submitted to the jury, which returned guilty verdicts, and, thereafter, sentences were imposed.

(a)

In resolving the questions here to be determined, it will be unnecessary for us to determine whether, at common law, the failure of parents to supply medical care for their ill minor child, who died as a result thereof, due to a conscientious religious belief, constituted involuntary manslaughter. Cf. Reg. v. Wagstaffe, 10 Cox C.C. 530; Reg. v. Hines, 80 Cent.Crt. 309. In Maryland, we have a statute which provides that the father and mother are jointly and severally charged with the 'support, care, nurture, welfare and education' of their minor children. Code (1957), Article 72A, Sec. 1. While this statute does not mention 'medical care' in specific terms, we have no hesitancy in holding that it is embraced within the scope of the broad language used. State v. Waller, 1913, 90 Kan. 829, 136 P. 215, 216; Morse v. Powers, 45 Vt. 300; Owens v. State, 6 Okl.Cr. 110, 116 P. 345; State v. Langford, 90 Or. 251, 176 P. 197; Gibson v. Commonwealth, 106 Ky. 360, 50 S.W. 532; Wallace v. Cox, 136 Tenn. 69, 188 S.W. 611, L.R.A.1917B, 690; State v. Moran, 99 Conn. 115, 121 A. 277, 279, 36 A.L.R. 862.

And it is almost universally recognized that where the defendant owed to a deceased person a specific legal duty, but failed to perform the same, and death resulted to the deceased because of the nonperformance of the duty, (at least under circumstances where the failure to perform constituted gross and wanton negligence) the defendant is guilty of involuntary manslaughter. 1 Warren, Homicide, Sec. 122, states the principle rather succinctly, as follows:

'Where the defendant owed the deceased a legal or contractual duty, any omission of the duty resulting in the death of the deceased renders the defendant chargeable with manslaughter. The duty must have been a plain one which he was bound by law or contract to perform personally. A criminal intent is not a necessary element of the offense. The breach of duty need not have been a criminal offense. * * *

'The defendant is guilty of manslaughter where he neglected to provide his wife with necessaries or with medical attention, or an infant in his charge with medical attention; * * *'

See also Wharton, Homicide (3rd Ed.), Sec. 452; 1 Wharton, Criminal Law (12th Ed.), Sec. 485; Annotations, 10 A.L.R. 1137, 12 A.L.R.2d 1047; Reg. v. Cook, 62 J.P. (Eng.) 712; Reg. v. Downes, 13 Cox C.C. 111; Commonwealth v. Comber, 170 Pa. Super. 466, 87 A.2d 90; State v. Barnes, 141 Tenn. 469, 212 S.W. 100; Stehr v. State, 92 Neb. 755, 139 N.W. 676, 45 L.R.A.,N.S., 559; State v. Staples, 126 Minn. 396, 148 N.W. 283. There are other States that have made similar rulings. Cf. Neusbaum v. State, 156 Md. 149, 155, 143 A. 872; People v. Pierson, 176 N.Y. 201, 68 N.E. 243, 63 L.R.A. 187. Contra; Bradley v. State, 79 Fla. 651, 84 So. 677, 10 A.L.R. 1129.

(b)

Of course, we do not intend to intimate that parents must call in medical aid every time a child is taken sick or becomes ill--for every prick of the finger or splinter to be removed. There are numerous occasions when the child's complaint may be trifling and not of a serious nature, so that it may be overcome by the ordinary household nursing by members of the family. Parents are, and should be, vested with a reasonable discretion in this regard. These facts were specifically acknowledged and noted in Stehr v. State and People v. Pierson, both supra. We have repeatedly said that negligence and reasonable care are relative terms, which derive...