State v. James

• Decision Date: 05 November 1953
• Docket Number: No. 7,7
• Citation: 203 Md. 113,100 A.2d 12
• Parties: STATE v. JAMES.
• Court: Maryland Court of Appeals

Page 113

203 Md. 113

100 A.2d 12

STATE v. JAMES.

No. 7.

Court of Appeals of Maryland.

Nov. 5, 1953.

Ambrose T. Hartman, Asst. Atty. Gen., Baltimore (Edw. D. E. Rollins, Atty. Gen., and John L. Sanford, Jr., State's Atty. Worcester Co., Berlin, on the brief), for appellant.

Staton, Whaley & Price and William H. Price, Snow Hill, for appellee.

Before SOBELOFF, C. J., and DELAPLAINE, COLLINS, HENDERSON and HAMMOND, JJ.

HAMMOND, Judge.

The question to be decided in this case is whether Maryland can try criminally a father living in the State on the charge of wilful failure to support his children who live in another State.

The appellee and his family formerly resided in Delaware. In 1950 he was there indicted for desertion and nonsupport of his two minor children, and on a plea of guilty, was ordered to pay a lump sum for past nonsupport and $20 a week for future support. Sometime in 1951 he moved to Worcester County, where he has since continued to live, and on March 3, 1953, the Grand Jury of that county indicted him for failure to support his two children from September 1, 1952 to the date of the indictment. He moved to dismiss the indictment on two grounds: first, that as required by the continuing sentence of the Delaware Court, which has jurisdiction of his minor children, he has 'fully paid through March 6, 1953, all of the money which he is required to pay under said judgment of said Superior Court of Delaware', and second, that the children are not residents of, and are not in, Maryland so that he has committed no crime against the State of Maryland and its Courts have no jurisdiction.

The State filed a replication to the motion to dismiss, in which it said that the crime of which the appellee was convicted by the Superior Court of Sussex County, Delaware, was for acts committed in that State prior to April, 1950 and that the crime for which he was indicted in Maryland was for the wilful neglect to provide for the children from September 1, 1952 to March 3, 1953, in direct violation of Section 96(b) of Article 27 of the Code, 1951 Edition. In addition, it was further set forth that: 'the acts for which the traverser herein stands indicted in the instant case is not for any acts violative of the Delaware laws, but for acts of omission directly violative of the criminal laws of the State of Maryland', because the crime of nonsupport was committed in the domicile of the accused, namely, Worcester County, 'without reference to the place where the proper performance of the plain legal duty would confer benefits.' The replication added that the accused had not complied with the order of the Delaware Court and had not paid the sums by it directed to be paid.

After argument the Circuit Court for Worcester County granted the motion to dismiss the indictment for the reason that: 'there has been no offense against the laws of the State of Maryland', and the State appealed.

The appellee has moved to dismiss the appeal, arguing that the Court below entered no final judgment. The motion must be denied. In State v. Buchanan, 5 Har. & J. 317, it was held that a writ of error lies at the instance of the State to review a judgment sustaining a demurrer to an indictment and discharging the accused. In State v. Adams, 196 Md. 341, 76 A.2d 575, 577, Judge Markell reviewed the Buchanan case and the decisions of this Court, both before and after the Acts of 1872 and 1892, relating to appeals, and concluded that: 'Since 1892 this court has repeatedly followed, usually without mentioning the Buchanan case--or the early practice followed in that case--in reversing on appeal judgments sustaining a demurrer to an indictment', adding that the appeal in such cases is considered in lieu of or 'as upon' a writ of error. See State v. Floto, 81 Md. 600, 602, 32 A. 315; State v. Archer, 73 Md. 44, 20 A. 172; State v. McNally, 55 Md. 559; compare State v. Gregg, 163 Md. 353, 163 A. 119; State v. Mariana, 174 Md. 85, 197 A. 620; and Harris v. State, 194 Md. 288, 71 A.2d 36; 12 Md.L.R. 68 at 73.

In State v. Wade, 55 Md. 39, the lower court quashed the indictment. The judgment, so doing, was the only judgment in the record. A motion to dismiss the appeal because there had been no final judgment was denied. Judge Alvey, referring to the quashing of the indictment, said: 'That was a final termination of the prosecution upon the particular indictment, and the defendant was necessarily discharged from all further proceeding thereon. Whether the State may proceed on another indictment would depend upon the action of a future grand jury. It is the right of the State to have the defendant tried upon the present indictment, unless it be determined, in some legal and proper manner, that the indictment is legally insufficient. The motion to dismiss therefore must be overruled.' See also State v. Hodges, 55 Md. 127, where the same result, under the same reasoning was reached in an appeal in which the lower court had entered a judgment sustaining a demurrer to the indictment, there being no other judgment in the case.

Under Rule 3 of the Criminal Rules of Practice and Procedure, demurrers and motions to quash were abolished. The relief sought by them now must be sought 'only by motion to dismiss or to grant appropriate relief.' In State v. Carter, Md., 89 A.2d 586, the appeal was by the State from an order of the Criminal Court of Baltimore, granting a motion to dismiss an indictment charging malfeasance in office. The State's right to appeal was not even challenged and this Court reversed the order of the Criminal Court. The docket entries in the instant case include the following: '1953 Mch. 30. Judgment: Motion to dismiss indictment granted'. It is clear that the State had the right to appeal.

On the merits the appellee says that the prosecution under the challenged indictment would place him in double jeopardy because he has already been sentenced by the Delaware Court for the nonsupport of his children, and according to his brief, has paid: 'the full amount required by the Court of the children's domicile to be paid.' It is admitted, however, in the brief that the payment was late. The pleadings show on their face that at the time the indictment was brought, the appellee had not paid since September 1, 1952. If the appellee has paid since the bringing of the indictment, this would perhaps gratify the requirements of the Delaware order, although we express no opinion on that point. Clearly, however, it would not avoid the fact that he had not supported the children for the period named in the Maryland indictment. The State does not seek to try the appellee here for violation of his Delaware conditional release but for a new violation in Maryland of the continuing offense of nonsupport. In Hite v. State, Md., 84 A.2d 899, 902, Hite was convicted for nonsupport, and sentenced, but sentence was suspended on condition that he would provide future support. When he was tried for violation of his parole, the Court imposed an additional sentence. It was held by this Court that the only punishment which could be given him for the violation of his parole was the sentence given on his original trial and which was then suspended. Judge Marbury, for the Court, however, added: 'Nothing we have said in this opinion, however, will prevent his being prosecuted again if he fails to support his child.'

The crime of nonsupport is a continuing offense. In Ellingham v. State, 163 Md. 278, 162 A. 709, this Court discussed, in reaching its decision, the nature of a continuing offense. It adopted a definition taken from State v. Jones, 201 N.C. 424, 160 S.E. 468, 469, as follows 'Wharton defines a continuing offense as a transaction or a series of acts set on foot by a single impulse, and operated by an unintermittent force, no matter how long a time it may occupy. Crim.Pleading 474. It is an offense which continues day by day. * * * The prosecution of an offense of this nature is a bar to a subsequent prosecution for the same offense charged to have been committed at any time before the institution of the first prosecution, but it is not a bar to a subsequent prosecution for continuing the offense thereafter, as this is a new violation of the law.' The North Carolina case from which the quotation was taken was one dealing with the nonsupport of his children by a father, in which it was held that the nonsupport was a continuing offense. In Self v. United States, 150 F.2d 745, 747, the Court of Appeals for the Fourth Circuit held that the obligation to render military service in time of war is a continuing one and prosecution for failure to obey the order of the Draft Board is no bar to a subsequent prosecution for subsequent failure to obey another such order. The Court said: 'The obligation to render military service is inherent in citizenship and may be compared with the obligation of a father to support his children. A conviction of a father for refusal to support his children is not a bar to a later prosecution for a future neglect of his obligation.' See also People ex rel. Lichtenstein v. Hodgson, 126 N.Y. 647, 27 N.E. 378; State v. Morgan, 155 Iowa 482, 136 N.W. 521, 40 L.R.A.,N.S., 615; and In re Baurens, 117 La. 136, 41 So. 442.

If it be assumed that Delaware could punish the appellee for nonsupport from September 1, 1952 to March 3, 1953, either under the original order or by a new prosecution, the rule of double jeopardy would not bar prosecution here for violation of Maryland law. The same act may be a crime against two sovereignties, and, where it is, double jeopardy does not apply. Bloomer v. State, 48 Md. 521; Rossberg v. State, 111 Md. 394, 74 A. 581; Hebert v. State of Louisiana, 272 U.S. 321, 47 C.Ct. 103, 71 L.Ed. 270; and Jerome v. United States, 318 U.S. 101, 63 S.Ct. 483, 87 L.Ed. 640, 643.

The appellee's major contention on the merits is that the offense charged in the indictment is not a crime under the laws of Maryland...