Pritchett v. State

• Decision Date: 25 January 1922
• Docket Number: 69.
• Citation: 117 A. 763,140 Md. 310
• Parties: PRITCHETT v. STATE.
• Court: Maryland Court of Appeals

117 A. 763

140 Md. 310

PRITCHETT v. STATE.

No. 69.

Court of Appeals of Maryland

January 25, 1922

Appeal from Circuit Court, Dorchester County; Joseph L. Bailey and Robt. F. Duer, Judges.

Robert Pritchett was convicted of deserting and neglecting to provide for the support and maintenance of his wife, and he appeals. Affirmed.

Harrington Harrington & Wallace and V. Calvin Trice, all of Cambridge for appellant.

Alexander Armstrong, Atty. Gen. (Lindsay C. Spencer, Asst. Atty. Gen and A. Stengle Marine, State's Atty, of Cambridge, on the brief), for the State.

PATTISON J.

The appellant in this case is charged in the indictment with the violation of section 75, art. 27, of the Code of Public General Laws of this state.

The indictment contains two counts. It is alleged in the first that the defendant "did, without just cause, desert his wife, Agnes Pritchett," and in the second it is alleged that "he willfully neglected to provide for the support and maintenance of his wife." A demurrer to the indictment was filed and overruled. The case was then tried by a jury, and a verdict of guilty was rendered.

The statute (section 75, art. 27, of the Code) under which the defendant was tried and convicted provides that:

"Any person who shall without just cause desert or willfully neglect to provide for the support and maintenance of his wife or minor child shall be deemed guilty of a misdemeanor, and upon conviction in any court of the state having criminal jurisdiction shall be punished by a fine not exceeding one hundred dollars, or imprisonment in the Maryland house of correction, for not more than one year, or both, in the discretion of the court. The fine may be directed by the court to be paid in whole or in part to the wife; provided, that before the trial with the consent of the defendant, or after conviction, instead of imposing the punishment hereinbefore provided, or in addition thereto, the court in its discretion, having regard to the circumstances and financial ability of the defendant, shall have the power to pass an order which shall be subject to change by it from time to time, as the circumstances may require, directing the defendant to pay a certain sum weekly for the space of one year to the wife, and to release the defendant from custody on probation for the space of one year upon his entering into a recognizance in such sum as the court shall direct, with or without sureties. The condition of the recognizance shall be such that if the defendant shall make his personal appearance at the court whenever ordered so to do within the year, and shall further comply with the terms of the order, or of any subsequent modification thereof, then the recognizance shall be void, otherwise of full force and effect. If the court be satisfied by information and due proof under oath, at any time during the year, that the defendant has violated the terms of such order, it may forthwith proceed to the trial of the defendant under the original indictment, or sentence him under the original conviction, as the case may be."

Instead of imposing the first-mentioned punishment provided by the act, consisting of a fine or imprisonment in the house of correction for not more than one year, or both fine and imprisonment, the court, in pursuance of the power conferred upon it by said section, passed its order requiring the defendant to pay weekly to his wife a certain sum, therein stated, for the space of one year, and ordered the release of the defendant from custody on probation for said time upon his entering into a recognizance in the sum of $500 for his personal appearance at the court whenever ordered so to do within the year, and to comply with the terms of the order, or any subsequent modification of such order.

The court treated its action in passing said order requiring the defendant to pay said sum weekly to his wife as the sentence or judgment of the court, as disclosed by the docket entries in the case, and it was from that order or judgment of court that the appeal in this case was taken.

The demurrer is to the whole indictment, and is based upon the contention that as the statute creates but one offense, as claimed, the charge should have been embraced in one count by substituting the word "and" for "or," thereby charging that the defendant "did without just cause desert and willfully neglect to provide for the support and maintenance of his wife or minor child."

In support of this contention the appellant cites the case of Stearns v. State, 81 Md. 341, 32 A. 282. In that case Stearns, the appellant, was charged with the violation of the act of 1894 (chapter 232). That act made it "unlawful for any person or persons or association of persons to gamble or make books and pools on the result of any trotting race or running race of horses or race of any kind, or to establish, keep, rent or use, or knowingly suffer to be used or occupied, any house, building or portion of a building, vessel or place, on land or water, for the purpose of making or selling therein any book or pool, or of otherwise betting therein or thereon, upon the result of any trotting race or running race of horses or race of any kind."

The indictment or information in that case contained five counts. In the third count the defendant...