Petition — Hopkins v. Fabritz

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221978 | f

ASL RODAK, JR, CLERK

_——

IN THE ;

Supreme Court of the United States

OCTOBER TERM, 1978

No %8-104]

ARNOLD J. HOPKINS, Director, DIviIsION OF PAROLE AND

PROBATION, MARYLAND DEPARTMENT OF PUBLIC SAFETY

AND CORRECTIONAL SERVICES,

Petitioner,

Vv.

VIRGINIA LYNNETTE FABRITZ,

Respondent.

bo PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

FRANCIS B. BURCH,

Attorney General

of Maryland,

GEorRGE A. NILSON,

Deputy Attorney General, RoBeErRT A. ZARNOCH,

Davip H. FELDMAN, STEPHEN B. CaAPLIs,

Assistant Attorney General, Assistant Attorneys General,

Chief of Litigation, One South Calvert Street,

CLARENCE W. SHARP, Baltimore, Maryland 21202,

Assistant Attorney General, 301-383-3737,

Chief, Criminal Division, Attorneys for the Petitioner.

—

The Daily Record Co., Baltimore, Md. 21202 es

TABLE OF CONTENTS

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CONSTITUTIONAL AND STATUTORY PROVISIONS

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REASONS FOR GRANTING THE WRIT:

II.

III.

The United States Court of Appeals

impermissibly reinterpreted Maryland’s

Child Abuse Law to add the element of

scienter in conflict with the decision of

the State’s highest court .............:cceeeee

The Circuit Court misapplied this

Court’s due process test for gauging the

evidence supportive of a State’s convic-

tion and abused the limitations of the

habeas corpus remedy to conclude that

no evidence warranted the respondent’s

conviction of child abuse ....................00.

The Circuit Court lacked habeas corpus

jurisdiction to void the respondent’s

conviction on a due process ground not

raised in State courts ..........::cccceeseeeeees

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APPENDIX:

Opinion filed February 21, 1975 by Maryland

Court of Special Appeals and reported

as Fabritz v. State, 24 Md. App. 708

REELS SESE a ee a

Opinion filed December 3, 1975 by Maryland

Court of Appeals and reported as State

v. Fabritz, 276 Md. 416 (1975) ...............

Opinion filed January 28, i976 by Maryland Picea

Court of Special Appeals and reported

as Fabritz v. State, 30 Md. App. 1(1976) 27a

Memorandum and order filed January 20,

1977 by United States Distict Court for

the District of Maryland denying writ of

Habeas COFPUBG © cesesssesoreccsrocrsescovvesscersoeeeseee . 44a

Opinion filed September 28, 1978 by United

States Court of Appeals for the Fourth

Circuit and reported as Fabritz v.

Traurig, 583 F.2d 697 (4th Cir., 1978) . 53a

TABLE OF CITATIONS

Cases

Adderley v. Florida, 385 U.S. 39 (1966) .............. 13

Carafas v. LaVallee, 391 U.S. 234 (1968) ........... 10

Fabritz v. State, 24 Md. App. 708, 332 A.2d 324

(1975); reud. 276 Md. 416, 348 A.2d 275 (1975);

on remand 30 Md. App. 1, 351 A.2d 477

(1976); cert. den. 425 U.S. 942 (1970) ........... passim

Fabritz v. Traurig, 583 F.2d 697 (4th Cir., 1978) 1,9, 14

Fay v. Noia, 372 U.S. 391 (19638) ............ccsscseseeees 16

Francis v. Henderson, 425 U.S. 536 (1976) ........ 14

Garner v. Louisana, 368 U.S. 157 (1961) ............ 11,13

Gregory v. City of Chicago, 394 U.S. 111 (1968) 13

Howard v. Fleming, 191 U.S. 126 (1908) ............ 11

Johnson v. Florida, 391 U.S. 596 (1968) ............. 13,14

Mullaney v. Wilbur, 421 U.S. 684 (1975) ............ 10

Prince v. Massachusetts, 321 U.S. 158 (1944) .... 11,12

Stone v. Powell, 428 U.S. 465 (1976) .............000 16

Thompson v. Louisville, 362 U.S. 199 (1960) .13, 14, 15

Vachon v. New Hampshire, 414 U:S. 478 (1974) 13,14

Wainwright v. Stone, 414 U.S. 21 (1973) ............ 10, 14

iii

PAGE

Constitution, Statutes and Rules

United States Constitution:

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United States Code:

Title 28—

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Maryland Annotated code:

Article 27—

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Rules:

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IN THE

Supreme Court of the United States

OcTOBER TERM, 1978

No.

ARNOLD J. HOPKINS, Director, Division OF PAROLE AND

PROBATION, MARYLAND DEPARTMENT OF PUBLIC SAFETY

AND CORRECTIONAL SERVICES,

Petitioner,

Vv.

VIRGINIA LYNNETTE FABRITZ,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

Arnold J. Hopkins, Director of the Division of Parole

and Probation, Maryland Department of Public Safety

and Correctional Services, the petitioner herein, respect-

fully prays that a writ of certiorari be issued to review

the judgment of the United States Court of Appeals for

the Fourth Circuit entered in this case on September 28,

1978.

OPINIONS BELOW

The decision of the United States Court of Appeals for

the Fourth Circuit was filed on September 28, 1978, and

is reported as Fabritz v. Traurig, 583 F.2d 697 (4th Cir.

1978); the majority and dissenting opinions also appear

in the appendix to this petition (A. 53a). The memoran-

dum and order of the United States District Court for

the District of Maryland, Fabritz v. Traurig, Civil No.

Y-76-967, dated January 2, 1977, which was vacated by

the court of appeals is unreported but appears in the

appendix (A. 44a).

Also integral to this case are three opinions of the

Maryland anvpellate courts which set forth the applica-

ble law and the relevant facts. The original opinion of

the Court of Special Appeals of Maryland reversing the

respondent’s conviction, reported as Fabritz v. State, 24

Md. App. 708, 332 A.2d 324 (1975), also appears in the

appendix (A. 1a). Likewise included in the appendix are

the opinion of the Court of Appeals of Maryland, State

v. Fabritz, 276 Md. 416, 348 A.2d 275 (1975) (A. 8a),

reversing the judgment of the Court of Special Appeals

and the opinion of that court on remand, affirming the

respondent’s conviction. Fabritz v. State, 30 Md. App. 1,

351 A.2d 477 (1976) (A. 27a). Finally, this Court’s denial

of a writ of certiorari to review these judgments of the

Maryland appellate courts is reported as Fabritz v.

Maryland, 425 U.S. 942 (1976).

JURISDICTION

The judgment of the United States Court of Appeals

for the Fourth Circuit which is sought to be reviewed

was entered on September 28, 1978, and this petition is

filed within ninety days of that date.

The jurisdiction of this Court is invoked under 28

U.S.C. Section 1254(1).

QUESTIONS PRESENTED

1. Whether the United States Court of Appeals for the

Fourth Circuit under the guise of a due process scrutiny

of the evidence leading to the respondent’s conviction

impermissibly reinterpreted Maryland’s Child Abuse

Law to add the element of scienter in conflict with the

decision of the State’s highest court?

2. Whether the circuit court misapplied this Court’s

due process test for gauging the evidence supportive of

a conviction and abused the limitations of the habeas

corpus remedy to conclude that no evidence warranted

the respondent’s conviction of child abuse?

3. Whether the circuit court lacked habeas corpus

jurisdiction to void the respondent’s conviction on a due

process ground not raised in the State’s courts?

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Constitution of the United States

Amendment XIV, § 1

All persons born or naturalized in the United

States, and subject to the jurisdiction thereof, are

citizens of the United States and of the State

wherein they reside. No State shall make or enforce

any law which shall abridge the privileges or

immunities of citizens of the United States; nor

shall any State deprive any person of life, liberty,

or property, without due process of law; nor deny to

any person within its jurisdiction the equal

protection of the laws.

Annotated Code of Maryland

Article 27, §35A

Purpose. — The General Assembly hereby declares as

its legislative intent and purpose the protection of

children who have been the subject of abuse by

mandating the reporting of suspected abuse, by

extending immunity to those who report in good faith,

by requiring prompt investigations of such reports and

by causing immediate, cooperative efforts by the

responsible agencies on behalf of such children.

(a) Penalty. — Any parent, adoptive parent or other

person who has the permanent or temporary care or

custody or responsibility for the supervision of a minor

child under the age of eighteen years who causes abuse

to such minor child shall be guilty of a felony and upon

conviction shall be sentenced to not more than fifteen

years in the penitentiary.

(b) Definitions. — Wherever used in this section,

unless the context clearly indicates otherwise:

1. “Health practitioner” includes any physician,

surgeon, psychologist, dentist and any other person

authorized to engage in the practice of healing, any

resident or intern in any of these professions, and any

registered or licensed practical nurse attending or

treating a child in the absence of a practitioner of any

of these professions.

2. “Child” means any person under the age of

eighteen (18) years.

3. “Local department of social services” and “local

State’s attorney” refer to the jurisdiction in which the

child lives, or where the abuse is alleged to have taken

place, if different.

4. “Educator or social worker” shall mean any

teacher, counselor or other professional employee of any

school, public, parochial or private, or any caseworker

or social worker or other professional employee of any

public or private social, educational, health or social

service agency or any probation or parole officer or any

professional employee of a correctional institution.

5. “Law-enforcement officer” shall mean any police

officer or State trooper in the service of the State of

Maryland or any county or municipality thereof.

6. “Law-enforcement agency” shall mean any police

department, bureau or force of any county or Baltimore

City, any police department, bureau or force of any

incorporated municipality or the Maryland State Police.

7. “Abuse” shall mean any: (A) physical injury or

injuries sustained by a child as a result of cruel or

inhumane treatment or as a result of malicious act or

acts by any parent, adoptive parent or other person who

has the permanent or temporary care or custody or

responsibility for supervision of a minor child (B) any

sexual abuse of a child, whether physical injuries are

sustained or not.

8. “Sexual abuse” shall mean any act or acts

involving sexual molestation or exploitation, including

but not limited to incest, rape, carnal knowledge,

sodomy or unnatural or perverted sexual practices on a

child by any parent, adoptive parent or other person

who has the permanent or temporary care or custody or

responsibility for supervision of a minor child.

* * . * * *

STATEMENT OF THE CASE

The only facts pertinent to the respondent’s federal

habeas corpus case are those found by the Court of

Appeals of Maryland, the State’s highest court, in State

v. Fabritz, 276 Md. 416, 418-19, 348 A.2d 275, 276-77

(1975):

Virginia Lynnette Fabritz (Virginia) was charged

with violating ... [the Maryland Child Abuse

Law] by abusing her three-and-one-half year-old

daughter Windy. Evidence adduced at the trial

before a jury in the Circuit Court for Calvert

County showed that Windy was brought to the

Calvert County Hospital at 10:35 p.m. on October 3,

1973, in a badly beaten condition with approxi-

mately seventy bruises or contusions covering her

body, ranging in sizes from one inch to five inches.

She was pronounced dead on arrival at the

hospital, her death being attributed to peritonitis

resulting from a perforated or ruptured duodenum.

The evidence showed that Windy’s injuries were

the result of “blunt trauma” caused by an instru-

ment, or a fist, or some kind of blow inflicted

a eighteen to twenty-four hours prior to her

eath.

Virginia had left Windy in the custody of Thomas

Crockett and his wife, Ann, with whom she resided,

on October 1. Virginia did not see Windy again

until 1 p.m. on October 3, at which time she noticed

that Windy was very listless. Crockett told her that

Windy had driven with him on his motorcycle and

had gotten sick as a result of a bumpy ride. At 2:30

p.m. Windy complained of cramps and was

running a slight fever; Virginia attributed this to

the flu. She then bathed Windy and, after observ-

ing her badly beaten body, put her to bed and spent

the remainder of the afternoon watching Crockett

work on his motorcycle. At 5 p.m. Virginia

observed that Windy appeared to in a semi-

conscious state, but she did not take her to the

hospital because she ‘was too ashamed of the

bruises on her daughter’s body.’ There was evi-

dence that Windy thereafter sat up and appeared

normal for a brief period, but at 6 p.m. she vomited

and again complained that she did not feel well. At

7 p.m. Virginia put Windy back to bed and called a

friend, Connie Schaeffer, and asked that she look

at Windy. Miss Schaeffer arrived at 9 p.m. Windy

was laying on the floor of the den, covered by a wet

diaper. She was limp and appeared unconscious.

When Miss Schaeffer questioned Virginia about

the bruises on Windy’s body, Virginia responded,

‘Tommy (Crockett) hits hard.’ Windy’s condition

worsened and at 9:45 p.m. Ann Crockett contacted

the hospital. She was advised to bring Windy to the

hospital immediately. After Mrs. Crockett left for

the hospital with Windy, Virginia told Miss

Schaeffer, ‘it is my fault. I killed her.’ Shortly

thereafter, Virginia went to the hospital and

learned that Windy was dead.

Expert medical evidence was adduced to show that

a child with peritonitis would vigorously complain

once she sustained the injury and would continue

to complain until the onset of a coma; that at the

time the injuries were sustained, there would have

been immediate pain and the child would have

begun to feel poorly; that the pain would have

gradually increased, followed by fever, vomiting,

and lack of appetite; that within six hours prior to

death, the child would have become stuporous and

comatose; that Windy would have lived had an

operation been performed within at least twelve

hours prior to death; and that she would have had

a chance to survive if surgery had been performed

up to an hour before death. A pathologist testified

that it was his medical opinion, based upon the

degree of injury, the multiplicity of wounds and his

examination of Windy’s body, that the injuries did

not happen accidentally. There was no evidence

indicating that Virginia struck the blows which

caused the initial injuries to her child, nor was

there any evidence to show that Virginia had

knowledge that the person in whose custody she

left Windy would abuse her.

Upon this evidence, the respondent was convicted of

violating Article 27, Section 35A of the Annotated Code

of Maryland, which makes it a crime for a parent to

cause injury to his or her child “as a result of cruel or

inhuman treatment.”

Maryland’s intermediate appellate court, the Court of

Special Appeals, reversed the respondent’s conviction

on the basis that “to be guilty under the statute, the

accused must be shown to have caused the injury, not

simply aggravated it by failure to seek assistance.” 24

Md. App. at 714, 332 A.2d at 327.

The Court of Appeals of Maryland rejected this

interpretation of the Child Abuse Law holding that “a

parent would be criminally responsible as having

‘caused’ such a physical injury to his child in the sense

contemplated by the statute if, as a result of the

parent’s ‘cruel or inhumane treatment,’ the child

suffered bodily harm additional to that initially

sustained as a consequence of the injury originally

inflicted upon him.” 276 Md. at 424, 348 A.2d at 280.

Nowhere in the court’s opinion did the judges suggest

that actual knowledge by the parent of the risk of harm

to the child was a crucial or indispensible factor under

the statute. After interpreting the law, the court

proceeded to determine whether there was sufficient

evidence for a jury to conclude that the respondent’s

failure to obtain medical assistance for her child

constituted cruel or inhuman treatment resulting in

physical injury:

That Virginia knew of Windy’s severly beaten

condition is manifest from the evidence; indeed, as

the photographic exhibits in the case so painfully

demonstrate, Windy bore the multiple bruises of a

vicious assault, of which Virginia was aware at

least as early as 2:30 p.m. on October 3, 1973.

Between that hour, and 10:35 p.m. when Windy

died, Virginia failed to seek or obtain any medical

assistance although, as the evidence heretofore

outlined so plainly indicates, the need therefor was

obviously compelling and urgent. There was

evidence that Virginia’s failure to seek such

assistance was based upon her realization that the

burises covering Windy’s body would become

known were the child examined or treated by a

physician. Other evidence in the case all too

eo illustrated the suffering to which

endy was subjected by Virginia’s failure to

provide the treatment needed to save the child’s

life. We think the jury properly could have

concluded from the evidence that, as a result of

Virginia’s conduct, Windy’s condition was permit-

ted to steadily deteriorate until the child’s ordeal

was ended by death; that Virginia’s failure to act

caused Windy to sustain bodily injury additional to

and beyond that inflicted upon her by reason of the

original assault and constituted as cause of the

further progression and worsening of the injuries

which led to Windy’s death; and that in these

circumstances Virginia’s treatment of Windy was

“cruel or inhumane” within the meaning of the

— and as those terms are commonly under-

s ‘

276 Md. at 425-26, 348 A.2d at 280-81.

The court then remanded the case to the Court of

Special Appeals which disposed of the remaining issues

in the appeal and affirmed the respondent’s conviction,

30 Md. App. 1, 351 A.2d 471. On March 2, 1976, the

respondent filed a petition for a writ of certiorari with

this Court, raising various constitutional issues, but as

in the Maryland courts she did not claim that her

conviction violated due process because no evidence

existed to support it. On April 19, 1976, the petition was

denied 425 U.S. 942 (1976).

Subsequently the respondent applied for a writ of

habeas corpus in the United States District Court for

the District of Maryland. She urged among other

grounds that the Maryland Child Abuse Law was

unconstitutionally vague. The district court rejected

these arguments in its decision of January 2, 1977

(A. 44a).

Upon timely appeal to the United States Court of

Appeals for the Fourth Circuit, the parties again briefed

the issue of the constitutionality of the statute. At oral

argument of the case on October 7, 1977, the panel

queried the parties on the sufficiency of the evidence.

Sua sponte the panel ordered supplemental briefs and

the transcript of the trial proceedings to decide the issue

of the constitutional sufficiency of the evidence.

Without further argument, on September 28, 1978, a

majority of the circuit court panel filed an opinion

indicating the appropriateness of habeas corpus relief,

first concluding that scienter was a “crucial” and

“indispensible” element in Maryland’s Child Abuse

Law, 583 F.2d at 698 & 700, and then finding that the

record failed to demonstrate any evidence that “the

mother had knowledge of the critical gravity of her

daughter’s condition when she deferred resort to

medical advice.” 583 F.2d at 698.

In a vigorous dissent, Chief Judge Haynsworth

contended that “the proof at trial did not permit a

conclusion on our part that there was no evidence to

support a finding of a violation of the statute by the

mother,” 583 F.2d at 700, and argued that the

respondent “consciously refrained from seeking medical

help” for her child.’ 583 F.2d at 701.

REASONS FOR GRANTING THE WRIT

THE UNITED STATES COURT OF APPEALS IMPERMISSIBLY

REINTERPRETED MARYLAND'S CHILD ABUSE LAW TO ADD

THE ELEMENT OF SCIENTER IN CONFLICT WITH THE DECI-

SION OF THE STATE’S HIGHEST COURT.

Rule 19 of this Court provides that a writ of certiorari

may be granted where a United States circuit court of

appeals has decided an important state question in a

way which conflicts with applicable state law. Thus

this Court has recognized that it is not the province of

federal courts to decide state law questions in conflict

with applicable state statutory or common law and that

usurpation of this important state court function may

warrant exercise of this Court’s power of review. See

Mullaney v. Wilbur, 421 U.S. 684, 693 (1975) (“This

Court . . . repeatedly has held that State Courts are the

ultimate expositors of State Law.”); Wainwright v.

Stone, 414 U.S. 21, 22-23 (1973) (“{[W]e must take the

statute as though it read precisely as the highest court

! Before issuance of the circuit court opinions, the respond-

ent was released on parole. Nevertheless, this case is not

moot. Even if her release were unconditional, which it is not,

the respondent would still be in “custody” for urposes of the

federal habeas corpus statute. Carafas v. LaVallee, 391 U.S.

234 (1968). Moreover, problems that may arise in connection

with the conditions or revocation of the respondent’s parole

or the desirability of the expungement of her criminal record

hinge on the outcome of this case. Finally, the State is and

will continue to be genuinely aggrieved by the circuit court’s

wrongful interpretation of an important Maryland law.

For these reasons, the State is filing this petition in the

name of the public official who has supervisory authority

over the respondent, specifically, Arnold J. Hopkins, Direc-

tor, Division of Parole and Probation, Maryland Department

of Public Safety and Correctional Services.

of the State has interpreted it.”); Prince v. Massachu-

setts, 321 U.S. 158 (1944) (a state court’s construction of

a state statute is not reviewable by this court); Howard

v. Fleming, 191 U.S. 126 (1903). (whether an offense

exists under state law is not a federal question and the

decision of the state’s highest court is conclusive upon

the matter).

This Court has said that examination of the language

of state statutes by federal courts necessitates a

“delicate involvement in _ federal-state relations.”

Garner v. Louisiana, 368 U.S. 157, 169 (1961). In the

present case, the circuit court has cast delicacy aside

and trampled upon the legitimate function of the

Maryland courts.

The Court of Appeals of Maryland has held that the

State’s Child Abuse Law punishes failure by a parent to

seek medical assistance for his child where that failure

aggravates the child’s injuries. Knowledge by the

parent of the risk of harm caused by his inaction plays

no role in the equation. If anything, objective rather

than subjective factors (such as scienter) mark the

Maryland court’s description of the statute. The

“crucial” and “indispensable” elements are aggrava-

tion of injury and parental inaction, not the subjective

knowledge of the wrongdoer. The circuit court nowhere

criticized the definition of culpable conduct as ex-

pounded by Maryland’s highest court for violating due

process; instead, the divided panel sua sponte added a

requirement of scienter which it then found wanting on

the record of this case. The language of the circuit court

clearly and firmly fastens the requirement of scienter

(guilty knowledge) upon the Maryland statutory crime

of child abuse. This result flies directly in the face of the

Court of Appeals of Maryland decision that the

respondent’s failure to seek medical care for her

daughter when the need for such care was “obviously

compelling and urgent,” 276 Md. at 425, 348 A.2d at 280,

was sufficient to amount to “cruel and inhumane

treatment” as “abuse” is defined in Article 27, Section

35A(b)7. It is evident that the Court of Appeals of

Maryland would not require that the respondent know

that her conduct would place the life of her child in

jeopardy; rather, the State could and did prevail

because the evidence demonstrated that the respondent

acted in “wanton disregard” of the effects of her failure

to obtain medical care for her daughter.

This difference in evidentiary sufficiency is much

more than a matter of semantics. Under the ruling of

the circuit court, the State would have to prove that the

respondent knew that the child’s life hung in the

balance based upon her decision whether to get medical

assistance. Absent a confession or proof of some unique

medical knowledge on the part of the respondent (or

any parent or custodian who is charged with child

abuse), the decision of the circuit court renders it

virtually impossible to obtain a conviction: of those

persons whose actions are as “outrageous” (memoran-

dum and order of the district court at 4) as those of the

respondent in refusing medical assistance to her child

for reasons having nothing whatsoever to do with the

welfare of the child or the need for assistance.

With growing public awareness of the extent and

viciousness of child abuse throughout the country, this

holding promises to exonerate — in the face of a clear

holding of Maryland’s highest court to the contrary —

those wrongdoers who are indifferent to the health or

life support needs of their children.

As this Court has observed, “basic in a society

stand[s] the interests of society to protect the welfare of

children.” Prince v. Massachusetts, 321 U.S. at 165. If

the circuit court decision is permitted to stand these

state interests and an important state law will be

severely undermined.

II.

THE CIRCUIT COURT MISAPPLIED THIS COURT’S DUE

PROCESS TEST FOR GAUGING THE EVIDENCE SUPPORTIVE

OF A STATE CONVICTION AND ABUSED THE LIMITATIONS OF

THE HABEAS CORPUS REMEDY TO CONCLUDE THAT NO

EVIDENCE WARRANTED THE RESPONDENT’S CONVICTION

OF CHILD ABUSE.

In this case the circuit court has sua sponte taken a

constitutional mechanism reserved for extraordinary

situations and misapplied it in an area where state

court law-making and fact-finding are entitled to great

deference.

In Thompson v. Louisville, 362 U.S. 199 (1960), this

Court held that a conviction violates due process if the

record upon which it is based is “totally devoid of

evidentiary support.” Application of this due process

test almost always appears as an offshoot of a

vagueness challenge to a state statute. See, e.g., Vachon

v. New Hampshire, 414 U.S. 478 (1974); Johnson uv.

Florida, 391 U.S. 596 (1968). It frequently arises in cases

where protected expression is allegedly also implicated.

Gregory v. City of Chicago, 394 U.S. 111 (1968);

Adderley v. Florida, 385 U.S. 39 (1966). Resort to the

doctrine occasionally involves construction of a state

statute where state law is silent or state covrt construc-

tion is unavailable, Thompson v. Louisville; Garner v.

Louisiana, 368 U.S. 157 (1961),? or scrutiny of the facts

in the case. Vachon v. New Hampshire.

2 In Garner v. Louisiana, 368 U.S. 157, 174 (1961), Mr.

Justice Frankfurter observed in concurrence:

Whether state statutes are to be construed one way or

another is a question of state law, final decision of which

rests, of course, with the courts of the State. When as

here those courts have not spelled out the meaning of a

statute, this Court must extrapolate its allowable

meaning and attribute that to the highest court of the

State. We must do so in a manner that affords the widest

latitude to state legislative power consistent with the

United States Constituion.

3 In Vachon v. New Hampshire, 414 U.S. 478 (1974), this

Court accepted the construction of state law asset forth by

Finally, recent applications of the principle have

engendered deep division in the Court. See, e.g., Vachon

v. New Hampshire; Johnson v. Florida.

Nevertheless, the test set forth in Thompson uv.

Louisville is a stringent one. It does not turn on the

sufficiency of evidence but on whether the conviction

rests upon any evidence at all. 362 U.S. at 199. When

the highest court of a state has spoken on a statute, the

test does not sanction even minimal construction of the

State’s statute. Although it permits scrutiny of a record,

it does not allow — much less mandate — reevaluation

or second guessing of state court fact-finding. Moreover,

no opinion of this Court has ever applied the doctrine in

a federal habeas corpus case where state fact-finding is

presumed correct, 28 U.S.C. § 2254(d), where expressions

of state law by its highest court are absolutely binding,

Wainwright v. Stone, 414 U.S. 21 (1973), and where the

potential for undue federal interference in legitimate

state interests is so great. Francis v. Henderson, 425

U.S. 536, 541-42 (1976).

In any event, the record in this case amply meets the

Thompson test. As Chief Judge Haynsworth noted in

his dissent:

There can be no doubt here that the multiple

bruises were not symptomatic of influenza. When

the neighbor saw the child, she was moaning in

pain. That and her comatose condition should have

signalled a more serious condition than the flu.

That the mother recognized that there may have

been internal injuries is supported by the testimony

that she explained the child’s bruised condition to

the neighbor by saying, “Tommy hits hard.”

One may suppose that this three-year old child

had told her mother who had beaten her, and the

record clearly indicates that Tommy Crockett was

the lover of both of the women who shared the

house with him. Thus, she explained to the

New Hampshire’s highest court, unlike the circuit court’s

action in the present case where it ignored the plain language

of the Court of Appeals of Maryland.

neighbor that she had not sought a physician’s

help because she was. ashamed of the bruised

condition of the child’s body and that if the child

were seen by a physician she would have to’explain

the origin of the bruises.

I put no great weight on her exclamation after

being informed that the child was dead, “I killed

her,” but her statements to the neighbor before the

child was dead of her reasons for not having

sooner sought medical help furnished support for a

finding that for some hours the mother consciously

refrained from seeking medical help to protect

Crockett from possible criminal charges and to

support her own ego.

583 F.2d at 701.

The petitioner submits that in light of this record the

circuit court’s application of the due process test for

gauging evidence supportive of a state conviction

conflicts with decisions of this Court and “has so far

departed from the accepted and usual course of judicial

proceedings” so as to call for exercise of this Court’s

federal court supervisory power. Rule 19 of the Supreme

Court.

ITI.

THE CIRCUIT COURT LACKED HABEAS CORPUS JURISDIC-

TION TO VOID THE RESPONDENT’S CONVICTION ON A DUE

PROCESS GROUND NOT RAISED IN STATE COURTS.

It is indisputable that the due process evidentiary

question decided by the circuit court was not presented

to the Maryland courts. It is also evident that the issue

was not raised amid the respondent’s allegations of

constitutional deprivations in her 1976 petition for a

writ of certiorari in this Court, despite the fact that her

vagueness contentions should have made her aware of

the question.‘

‘ As is noted earlier, ante at 13, the Thompson issue almost

invariably arises in the context of a vagueness attack on a

state statute.

The issue was not even raised in the district court

where the respondent filed her petition for a writ of

habeas corpus. Indeed, the question only saw the light

of day when it was raised for the first time by the

circuit court at the argvment of this case.

Finally, in light of the respondent’s vociferous state

law challenge to the sufficiency of the evidence

supporting her conviction in the Maryland courts, the

due process evidentiary question was obviously ripe for

presentation there. Under these circumstances, the

respondent should be deemed to have waived the due

process question, thus precluding collateral attack on

the issue in federal habeas corpus proceedings. Fay v.

Noia, 372 U.S. 391, 433 (1963).

CONCLUSION

The circuit court’s reaching out for the constitutional

issue presented here, as well as its reinterpretation of

the Maryland Child Abuse Law and reevaluation of the

facts of the respondent’s case as found by the State’s

highest court, evidence a mistrust of state courts which

this Court soundly rejected in Stone v. Powell, 428 U.S.

465, 493 n.35 (1976). In an exercise of raw power without

precedent, the circuit court has placed the Maryland

Child Abuse Law into an ill-fitting and ill-advised

federal straightjacket in total disregard of the law’s

interpretation by the Court of Appeals of Maryland, the

State’s highest court. Thus, the present case stands out

as an unfortunate and anomalous trespass of federal

authority into state affairs, an intrusion which only

this Court can rectify.

For these reasons, review by this Court of the circuit

court decision is both necessary and appropriate.

Respectfully submitted,

FRANCIS B. BURCH,

Attorney General

of Maryland,

GeorGE A. NILSON,

Deputy Attorney General, Ropert A. ZARNOCH,

Davip H. FELDMAN, STEPHEN B. CAPLIS,

Assistant Attorney General, Assistant Attorneys General,

Chief of Litigation, One South Calvert Street,

CLARENCE W. SHARP, Baltimore, Maryland 21202,

Assistant Attorney General, 301-383-3737,

Chief, Criminal Division, Attorneys for the Petitioner.

APPENDIX

sf Opinion

(Decided February 21, 1975)

Court of Special Appeals of Maryland

No. 500, September Term, 1974

Virginia Lynnette Fabritz,

Appellant,

State of Maryland,

; Appellee.

(24 Md. App. 708)

OPINION

LowE, J., delivered the opinion of the Court.

Virginia Lynnette Fabritz, a twenty year old mother,

was tried by a jury in the Circuit Court for Calvert

County for child abuse and assault and battery upon

her now deceased daughter, Windy Lynn Fabritz.! The

State conceded, and the judge acknowledged in his

instructions to the jury, that:

“The State has not attempted to prove in this case

that the Defendant struck the blows or applied the

! Although the names of appellant and her daughter are

spelled various ways throughout the record, the spelling used

here is that of the indictment.

blunt trauma as the doctor referred to it which

caused the injuries, the initial injuries to this child

and set in train the physical changes which

ultimately resulted in its death.”

To the contrary, the evidence clearly showed that the

child was in the custody of another at the time the

injury was inflicted'* and a polygraph examination

verified not only that she had not inflicted the injury,

but that she did not know who did inflict it, nor suspect

that it was going to happen.” Indeed her pastor, the

‘8 Thomas Crockett — a co-defendant in whose custody

Windy was during the two day period culminating in her

injuries — was subsequently tried but acquitted for lack of

evidence.

? Defendant’s exhibit No. 1, admitted without objection,

contained the results of a Polygraph Examination conducted

by the Maryland State Police. Of the six possible results, viz,

1) truthfulness, 2) deception, 3) inconclusive reaction, 4)

statement obtained, 5) referred to be examined or 6) re-

examination requested, all answers to relevant questions

“indicated truthfulness.” The report commences by stating

the purpose of the examination:

“Mrs. Fabritz is brought to polygraph to ascertain if she

is any way involved in the death of her 3-year old

daughter.”

After responding that she intended to answer truthfully each

question, she denied hitting or causing the child’s death by

hitting. The examiner stated:

“It is the opinion of the examiner that the above

questions were answered truthfully.”

As the examination progesssed she was also asked the

following additional relevant questions:

“34. Regarding the death of Wendy at the very time that

Wendy was struck in the stomach were you,

yourself, present?

Answer: No

35. Regarding the death of Wendy did you, yourself, hit

Wendy in the stomach?

Answer: No

32. Regarding the death of Wendy do you know for

sure who struck Wendy in the stomach?

Answer: No

associate pastor of St. Paul’s United Church of Christ,

indicated that “She [M’s. Fabritz] had a good relation-

ship with Windy, Windy loved her and she loved Windy.

It was obvious both vocally and by non-verbal commun-

ication”; and the Social Services Representative with

the Department of Human Resources, who had known

and worked with M’s. Fabritz and Windy for a year

described the mother-dauther relationship as a very

good one.

“She always seemed concerned about Windy. I

never even saw her angry at Windy. They seemed to

be in good relation, they seemed to love each other

very much and she always seemed concerned about

the child’s welfare. And always knew pretty much

what the child was doing and exactly where the

child was.”

The trial judge entered a judgment of acquittal as to

the assault and battery, having found “no evidence in

this case of any hitting or assaulting of the child by

this Defendant.”

The child abuse question, however, was permitted to

go to the jury. The judge said:

“With respect to the analysis of the evidence as it

applies to the abuse statute, we think that the

statute intends to make a criminal act any positive

31. Regarding the death of Wendy do you suspect

anyone in particular of striking her in the stom-

5 Answer: No

41. Regarding the death of Wendy are you deliberately

holding back any information about that?

Answer: No

42. Regarding the death of Wendy, before she was

actually struck did you already know it was going

to happen?

pps Answer: No

* * * * 7 *

It is the opinion of the examiner that above tests were

also answered truthfully.”

The issue of admissibility of polygraph results is not before

us and we venture no opinion thereon.

abuse or any actions by a custodian of a child

which amount to cruel or inhumane tratment. . . .

And the view the Court takes of the matter, a

person who has the custody of an infant has a two-

fold duty, that is to refrain from actively injuring

the child himself which is an act which ought not

to be done as well as an obligation which can not

be avoided to take positive action to protect and

care for the child. Those positive actions fall into

several categories to provide it with necessary

shelter and the necessary sustenance to sustain life

as well as that medical attention which is available

to protect if from the consequences of injuries no

matter how received.”

The judge concluded that to permit a child who is

obviously seriously injured to expire from want of

readily available attention, may in a given circum-

stance constitute “cruel and inhumane treatment,”

borrowing that phrase from the child abuse statute:

“It is unquestionably inhumane to permit someone

who is unable to care for itself and provide for its

own medical attention to expire for want of that

medical attention and in this case, the testimony

shows that, although it became progessively less

and less, there was a chance for this child to

survive at any point from the time the Defendant

returned home until very close to the time it

expired, had it been brought to the attention of the

medical authorities. This was not done and we

think the question of whether or not that, in the

facts of: this case, is a criminal offense turns

essentially upon the finding of the fact by the

jury.”

As previously noted there was no evidence that M’s.

Fabritz inflicted Windy’s injury. Thus the actions upon

which the verdict was based occurred during the eight

hour period when Windy was in her mother’s presence.

M’s. Fabritz bathed Windy twice (once with alcohol),

put her night clothes on, tried to feed her, took her

temperature and finally tried to call a doctor. During

that period, she had to have observed the child’s badly

bruised body, as did a neighbor who assisted her. In the

eighth hour after arrival home Windy convulsed and

was rushed to the hospital. She was pronounced dead

on arrival, death having been caused by peritonitis

resulting from a blow to the stomach. The State’s “cruel

and inhumane treatment” theory rested on appellant’s

failure to seek professional medical help until the child

convulsed and death was imminent.

The jury found M’s. Fabritz guilty of child abuse and

the judge sentenced her to five years imprisonment. We

do not find the evidence sufficient to sustain that

conviction under the language of the statute as repeated

in the indictment. See n. 4, infra.

The judge’s opinion in denying the motion for

judgment of acquittal and his instructions to the jury

interpreted the child abuse statute, Md. Code, Art. 27,

Sec. 35A, as applying to a person’s failure to act to

prevent aggravation of an injury. We cannot read that

interpretation into the language of the Act.

At the time of the offense the pertinent language was

that enacted by Chapter 835 of the Laws of Maryland,

1973. Although it was again amended the following

year the change is not here pertinent. The relevant

language of Chapter 835 read:

“Penalty. — Any parent, adoptive parent or other

person who has the permanent or temporary care

or custody or responsibility for the supervision of a

minor child under the age of eighteen years who

causes abuse to such minor child shall be guilty of:

a felony and upon conviction shall be sentenced to

not more than fifteen years in the penien-

Gary...

“*Abuse’ shall mean any physical injury or

injuries sustained by a child as a result of cruel or

inhumane treatment or as a result of malicious act

or acts by any parent, adoptive parent or other

person who has the permanent or temporary care

or custody or responsibility for supervision of a

minor child.” [Emphasis added]

Basic to proof of the corpus delicti is a showing that

the accused is among the named persons to whom the

Act applies (here appellant was the parent) and

secondly that such person caused the injury sustained

by the child. This meaning is readily apparent by

substituting the definition of “abuse” for the word

“abuse” as it appears in the penalty section so that it

reads in relevant part as follows:

“Penalty. — Any parent,... of a minor child...

who causes. . . [any physical injury or injuries] to

such minor child shall be guilty of: a felony. . . .”

We need nothing in this statute, nor its history, which

might suggest the Legislature’s intent to encompass

those parents, etc. who withhold from their children the

necessities of life which the Court of Appeals has

interpreted as including medical care, Craig v. State,

220 Md. 590, 596.

Prior to 1973 the statute did not use nor define the

term “abuse.” It penalized any person within the

enumerated categories:

“.. who maliciously beats, strikes or otherwise

mistreats such minor child to such degree as to

require medical treatment. . | .”

Although the phraseology was somewhat altered by

the revised version contained in House Bill 1056,

adopted in 1973, as Chapter 835, the express purpose of

the revision was to encourage the reporting of instances

of abuse and only incidentally to rearrange and revise

the language ‘thereof. This view is substantiated by the

title which is constitutionally required to describe the

content of the bill, Md. Constitution, Art. III, § 29.

3 The descriptive portion of the title reads:

“. . . to provide certain definitions in the child abuse law

and to mandate the reporting of suspected child abuse to

certain agencies, and providing for cooperative efforts by

certain agencies in cases of child abuse, and extending

immunity to persons who report child abuse cases in

ood faith, and generally clarifying and extending the

aw relating to child abuse.”

and the purposes expressed in the newly adopted

preamble.‘

We conclude that to be guilty under the statute, the

accused must be shown to have caused the injury, not

simply aggravated it by failure to seek assistance. Our

review of the record compels us to remark upon our

concern that the State has been unable to apprehend

and punish the execrable wretch who committed this

unbelievably vicious act. The alternative of turning to

the tangentially culpable mother, whose judgment was

so unwise that her child’s death may well have been the

result, seems somehow unfulfilling. The sentence for

her hesitancy during that eight hour period will not end

after five years as would the sentence formerly imposed.

Judgment reversed.

Costs to be paid by

Calvert County.

Mandate to issue forth-

with.

‘ The preamble reads:

“pu . — The General Assembly hereby declares as

its Legislative intent and purpose the protection of

children who have been the subject of abuse by

mandating the reporting of suspected abuse. By extend-

ing immunity to those who report in good faith, by

requiring prompt investigations of such reports and by

causing immediate, cooperative efforts by the responsi-

ble agencies on behalf of such children.”

The mandate to report, whether ~ Searga here or not, was

not the crime with which appel ant was charged. The

indictment charged that M’s. Fabritz:

“. . .did unlawfully abuse, Windy Lynn Fabritz, a minor

child under the age of eighteen years, by inflicting

physical injuries sustained as a result of cruel and

inhumane treatment, or as a result of malicious acts or

acts,....”

Opinion

(Decided December 3, 1975)

Court of Special Appeals of Maryland

No. 29, September Term, 1975

State of Maryland,

Appellant,

Virginia Lynnette Fabritz,

Appellee.

(276 Md. 416)

Murpny, C. J., delivered the opinion of the Court.

O’DONNELL, J., dissents and filed a dissenting opinion

at page 426 infra.

Maryland Code (1971 Repl. Vol., 1975 Cum. Supp.),

Art. 27, §35A(a) provides that any parent or other

person having custody of a child under eighteen years

of age “who causes abuse to such minor child” shall be

guilty of a felony. The statute defines the term “abuse”

in subsection (b)7 to mean:

“any physical injury or injuries sustained by a

child as a result of cruel or inhumane treatment or

as a result of malicious act or acts... .”

Virginia Lynnette Fabritz (Virginia) was charged

with violating this statute by abusing her three-and-

one-half-year-old daughter Windy. Evidence adduced at

the trial before a jury in the Circuit Court for Calvert

County showed that Windy was brought to the Calvert

County Hospital at 10:35 p.m. on October 3, 1973 in a

badly beaten condition with approximately seventy

bruises or contusions covering her body, ranging in size

from one inch to five inches. She was pronounced dead

on arrival at the hospital, her death being attributed to

peritonitis resulting from a perforated or ruptured

duodenum. The evidence showed that Windy’s injuries

were the result of “blunt trauma” caused by an

instrument, or a fist, or some kind of blow inflicted

within eighteen to twenty-four hours prior to her death.

Virginia had left Windy in the custody of Thomas

Crockett and his wife Ann, with whom she resided, on

October 1. Virginia did not see Windy again until 1 p.m.

on October 3, at which time she noticed that Windy was

very listless. Crockett told her that Windy had driven

with him on his motorcycle and had gotten sick as a

result of a bumpy ride. At 2:30 p.m. Windy complained

of cramps and was running a slight fever; Virginia

attributed this to the flu. She then bathed Windy and,

after observing her badly beaten body, put her to bed

and spent the remainder of the afternoon watching

Crockett work on his motorcycle. At 5 p.m. Virginia

obsered that Windy appeared to be in a semiconscious

state, but she did not take her to the hospital because

she “was too ashamed of the bruises on her daughter’s

body.” Tnere was evidence that Windy thereafter sat up

and appeared normal for a brief period, but at 6 p.m.

she vomited and again complained that she did not feel

well. At 7 p.m. Virginia put Windy back to bed and

called a friend, Connie Schaeffer, and asked that she

look at Windy. Miss Schaeffer arrived at 9 p.m. Windy

was lying on the floor of the den, covered by a wet

diaper. She was limp and appeared unconscious. When

Miss Schaeffer questioned Virginia about the bruises on

Windy’s body, Virginia responded, “Tommy [Crockett]

hits hard.” Windy’s condition worsened and at 9:45 p.m.

Ann Crockett contacted the hospital. She was advised

to bring Windy to the hospital immediately. After Mrs.

Crockett left for the hospital with Windy, Virginia told

Miss Schaeffer, “It is my fault. I killed her.” Shortly

thereafter, Virginia went to the hospital and learned

that Windy was dead.

10a

Expert medical evidence was adduced to show that a

child with peritonitis would vigorously complain once

she sustained the injury and would continue to

complain until the onset of a coma; that at the time the

injuries were sustained, there would have been imme-

diate pain and the child would have begun to feel

poorly; that the pain would have gradually increased,

followed by fever, vomiting, and lack of appetite; that

within six hours prior to death, the child would have

become stuporous and comatose; that Windy would

have lived had an operation been performed within at

least twelve hours prior to death; and that she would

have had a chance to survive if surgery had been

performed up to an hour before death. A pathologist

testified that it was his medical opinion, based upon the

degree of injury, the multiplicity of wounds and his

examination of Windy’s body, that the injuries did not

happen accidentally. There was no evidence indicating

that Virginia struck the blows which caused the initial

injuries to her child, nor was there any evidence to

show that Virginia had knowledge that the person in

whose custody she left Windy would abuse her.

The trial court instructed the jury that a parent is

under an affirmative duty to provide reasonable

medical necessities to his child and would be guilty of

child abuse under the statute if the treatment afforded

to the child was “cruel or inhumane and it results in

physical injury”; that the “physical injury may be

death itself’; and that “the unattended worsening of

obvious serious medical condition if cruel or inhumane

and if more serious consequences result, is in itself. . .

a physical injury within the meaning of the terms as

they are used in the Statute.” The jury found Virginia

guilty of the offense and she was sentenced to five

years’ imprisonment.

The Court of Special Appeals reversed the judgment

of conviction, holding that “to be guilty under the

statute, the accused must be shown to have caused the

injury, not simply aggravated it by failure to seek

assistance.” Fabritz v. State, 24 Md. App. 708 at 714,

lla

332 A.2d 324 at 327 (1975). In so concluding, the court

said that there was nothing in the statute indicating

that it was the legislative intent to encompass within

its provisions parents who withhold the necessities of

life, including medical care, from their children. We

granted certiorari to consider whether the Court of

Special Appeals properly interpreted the child abuse

statute.

The State contends that Virginia’s failure to provide

medical care to Windy in the circumstances of this case

amounted to child abuse within the meaning of the

statute. More specifically, the State urges that the

evidence showed that Windy was the victim of a

medical condition known as the “battered child syn-

drome”; that the beating Windy suffered caused

peritonitis which resulted “in a gradual and continuous

general deterioriation of the child’s health and well-

being culminating in her death”; that although there

was no evidence that Virginia was the individual who

beat Windy, she was “fully aware of her child’s beaten

condition . . . [but] failed for a period of several hours

to seek medical attention for her child and... her

inaction amounted to child abuse’; and that while there

was no evidence that Windy’s injuries resulted from

any “malicious act” perpetrated by Virginia, her failure

to obtain medical attention for her daughter consti-

tuted, within the sense contemplated by the statute,

“cruel or inhumane treatment” and was a contributing

cause of the “physical injury” which the child sus-

tained.

On Virginia’s behalf it is argued that to be guilty of

child abuse under § 35A, a person must have “caused”

the child to suffer physical injury as a result of cruel or

inhumane treatment. Virginia claims that § 35A “con-

cerns injuries as a result of the treatment or acts of the

accused” and that because Windy was injured and died

as a consequence of blows inflicted by someone other

than herself, her failure to obtain medical aid for Windy

was not the cause of the child’s injuries or death.

Virginia maintains that the gist of the statutory offense

12a

of child abuse is not cruel or inhumane treatment but

rather the infliction «f physical injuries upon a child as

a result of such treatment.

The cardinal rule in the construction of statutes is to

effectuate the real and actual intention of the Legisla-

ture. Purifoy v. Merc.-Safe Dep. & Trust, 273 Md. 58, 327

A.2d 483 (1974); Scoville Serv., Inc. v. Comptroller, 269

Md. 390, 306 A.2d 534 (1973); Height v. State, 225 Md.

251, 170 A.2d 212 (1961). Equally well settled is the

principle that statutes are to be construed reasonably

with reference to the purpose to be accomplished,

Walker v. Montgomery County, 244 Md. 98, 223 A.2d

181 (1966), and in light of the evils or mischief sought to

be remedied, Mitchell v. State, 115 Md. 360, 80 A.2d

1020 (1911); in other words, every statutory enactment

must be “considered in its entirety, and in the context of

the purpose underlying [its] enactment,” Giant of Md. v.

State’s Attorney, 267 Md. 501 at 509, 298 A.2d 427, at

432 (1973). Of course, a statute should be construed

according to the ordinary and natural import of its

language, since it is the language of the statute which

constitutes the primary source for determining the

legislative intent. Grosvenor v. Supervisor of Assess.,

271 Md. 232, 315 A.2d 758 (1974); Height v. State, supra.

Where there is no ambiguity or obscurity in the

language of a statute, there is usually no need to look

elsewhere to ascertain the intention of the Legislature.

Purifoy v. Merc.-Safe Deposit & Trust, supra. Thus,

where statutory language is plain and free from

ambiguity and expresses a definite and sensible

meaning, courts are not at liberty to disregard the

natural import of words with a view towards making

the statute express an intention which is different from

its plain meaning. Gatewood v. State, 244 Md. 609, 224

A.2d 677 (1966). On the other hand, as stated in

Maguire v. State, 192 Md. 615, 623, 65 A.2d 299, 302

(1949), “[a]dherence to the meaning of words does not

require or permit isolation of words from their context

‘* * * [since] the meaning of the plainest words in a

statute may be controlled by the context. ...’” In

13a

construing statutes, therefore, results that are unreaso-

nable, illogical or inconsistent with common sense

should be avoided whenever possible consistent with

the statutory language, with the real legislative

intention prevailing over the intention indicated by the

literal meaning. B. F. Saul Co. v. West End Park, 250

Md. 707, 246 A.2d 591 (1968); Sanza v. Md. Board of

Censors, 245 Md. 319, 226 A.2d 317 (1967); Height v.

State, supra.

It is, of course, well settled that penal statutes must

be strictly construed, State v. Fleming, 173 Md. 192, 195

A. 392 (1937), “by which is meant that courts will not

extend the punishment to cases not plainly within the

language used,” State v. Archer, 73 Md. 44, 57, 20 A.

172, 172 (1890). But as our predecessors noted in Healy

v. State, 115 Md. 377, 379, 80 A. 1074, 1075, it is the

intention of the Legislature that governs in the

construction of all statutes so that penal statutes, like

other statutes, are to be fairly and reasonably construed

and courts should not, by narrow and _ strained

construction, exclude from their operation cases plainly

within their scope and meaning. In the final analysis,

in construing any statute requiring construction, courts

must consider not only the literal or usual meaning of

words, but their meaning and effect in light of the

setting, the objectives and purposes of the enactment,

with the real intention prevailing over the literal

intention even though such a construction may seem to

be contrary to the letter of the statute. Criminal Ins.

Comp. Bd. v. Gould, 273 Md. 486, 331 A.2d 55 (1975);

Barnes v. State, 186 Md. 287, 47 A.2d 50 (1946); Height

v. State, supra.

It is in light of these principles of construction of

statutes that we consider the provisions of § 35A as they

stood at the time of the alleged offense. Codified under

the subtitle “Child Abuse,” the statute’s declared

legislative purpose is “the protection of children who

have been the subject of abuse. .. .” As heretofore

indicated, the statute defines “abuse” to encompass

“any physical injury or injuries sustained by a child as

l4a

a result of cruel or inhumane treatment or as a result of

malicious act or acts.” Under the statute, any person

having custody of a child under eighteen years of age

who “causes” such abuse is guilty of a felony. The

precursor to §35A was chapter 743 of the Acts of 1963,

which was originally codified as Code (1957) Article 27,

§11A and included under the subtitle “Assault on

Children”; that statute, which was recodified as Article

27, §35A by chapter 500 of the Acts of 1970, provided

that any person having custody of a minor child under

fourteen years of age “who maliciously beats, strikes or

otherwise mistreats such minor child to such degree as

to require medical treatment” would be guilty of a

felony. It would appear from its terms that that

enactment was not intended to reach acts of individuals

not constituting, in one form or another, an assault on a

child. It was not until §35A was amended by chapter

835 of the Acts of 1973 that the Legislature repealed the

“maliciously beats, strikes, or otherwise mistreats” test

of child abuse, and substituted in its place a new and

different measure of the offense — one defined by new

subsection (b) 7 in terms of physical injuries caused by

“cruel or inhumane treatment or as a result of malicious

act or acts.” According to its title, one of the purposes

underlying the 1973 amendment of §35A was “gener-

ally extend[ing] the law of child abuse.” Considering

the particular use and association of words and

definitions used in § 35A, we think a doubt or ambiguity

exists as to the exact reach of the statute’s provisions,

justifying application of the principle that permits

courts in such circumstances to ascertain and give

effect to the real intention of the Legislature. See Clerk

vu. Chesapeake Beach Park, 251 Md. 657, 248 A.2d 479

(1968); Domain v. Bosley, 242 Md. 1, 217 A.2d 555

(1966).

We think it evident that the Legislature, by its 1973

amendment to §35A, plainly intended to broaden the

area of proscribed conduct punishable in child abuse

cases. Its use in the amended version of §35A of the

comprehensive phraseology “who causes abuse to” a

15a

minor child, coupled with its broad two-pronged

definition of the term “abuse,” supports the view that

the Legislature, by repealing the narrow measure of

criminality in child abuse cases then provided in § 35A,

and redefining the offense, undertook to effect a

significant change of substance in the scope of the

statute’s prohibitions. In making it an offense for a

person having custody of a minor child to “cause” the

child to suffer a “physical injury,” the Legislature did

not require that the injury result from a physical

assault upon the child or from any physical force

initially applied by the accused individual; it provided

instead, in a more encompassing manner, that the

offense was committed if physical injury to the child

resulted either from a course of conduct constituting

“cruel or inhumane treatment” or by “malicious act or

acts.”

As defined in Black’s Law Dictionary 966 (8rd ed.

1933), an injury is “[alny wrong or damage done to

another . . .”; the term is defined in Webster’s Third

New International Dictionary 1164 (1961) as “an act

that damages, harms, or hurts: an unjust or undeserved

infliction of suffering or harm.” Of course, the injury

would be a physical one if it relates to or pertains to the

body. To be a “cause” of physical injury to another, a

person would in some manner have to be accountable

for the “condition that brings about an effect or that

produces or calls forth a resultant action or state.”

Webster’s Third New International Dictionary 356.

Affording the term “physical injury” the broad mean-

ing that the context of § 35A would seem to mandate we

think a parent would be criminally responsible as

having “caused” such a physical injury to his child in

the sense contemplated by the statute if, as a result of

the parent’s “cruel or inhumane treatment,” the child

suffered bodily harm additional to that initially

sustained as a consequence of the injury originally

inflicted upon him. Cf. Palmer v. State, 223 Md. 341, 164

A.2d 467 (1960), where in affirming an involuntary

manslaughter conviction of a mother who knowingly

16a

permitted her infant child to be subjected to prolonged

beatings by her paramour, we concluded that although

the direct and immediate cause of the child’s death was

attributable to blows struck by the mother’s paramour,

her failure to remove the child from the paramour’s

presence constituted gross and criminal negligence and

“was a contributing cause of. . . [the child’s] unfortu-

nate death.” 223 Md. at 353.

Whether, in view of the evidence adduced at the trial,

Virginia’s failure to obtain medical assistance for

Windy constituted cruel or inhumane treatment result-

ing in physical injury to the child is, of course, the crux

of this appeal. That a parent under Maryland law is

legally obligated to provide necessary medical care to

his child is clear. Code (1970 Repl. Vol.) Art. 72A, § 1;

Craig v. State, 220 Md. 590, 155 A.2d 684 (1959);

Baltimore City v. Fire Insurance Salvage Corporation,

219 Md. 75, 148 A.2d 444 (1959). That Virginia knew of

Windy’s severely beaten condition is manifest from the

evidence; indeed, as the photographic exhibits in the

case so painfully demonstrate, Windy bore the multiple

bruises of a vicious assault, of which Virginia was

aware at least as early as 2:30 p.m. on October 3, 1973.

Between that hour, and 10:35 p.m. when Windy died,

Virginia failed to seek or obtain any medical assistance

although, as the evidence heretofore outlined so plainly

indicates, the need therefor was obviously compelling

and urgent. There was evidence that Virginia’s failure

to seek such assistance was based upon her realization

that the bruises covering Windy’s body would become

known were the child examined or treated by a

physician. Other evidence in the case all too graphi-

cally illustrated the suffering to which Windy was

subjected by Virginia’s failure to provide the treatment

needed to save the child’s life. We think the jury

properly could have concluded from the evidence that,

as a result of Virginia’s conduct, Windy’s condition was

permitted to steadily deteriorate until the child’s ordeal

was ended by death; that Virginia’s failure to act

caused Windy to sustain bodily injury additional to and

17a

beyond that inflicted upon her by reason of the original

assault and constituted a cause of the further progres-

sion and worsening of the injuries which led to Windy’s

death; and that in these circumstances Virginia’s

treatment of Windy was “cruel or inhumane” within the

meaning of the statute and as those terms are

commonly understood. Accordingly, we conclude that

the Court of Special Appeals was in error in its

interpretation of §35A and in its reversal of Virginia’s

conviction.

Judgment of the Court of

Special Appeals reversing

the judgment of the Circuit

Court for Calvert County

vacated; case reminded to

the Court of Special Appeals

for consideration of the other

issues presented to that court

on appeal, but not decided;

costs to abide the result.

O’Donnell, J., dissenting:

Although I agree that the conduct of the 20-year old

mother, Virginia Fabritz, toward her three-and-one-

half-year-old daughter, was reprehensible, and that as a

result of her attempt to treat the child with “home

remedies,” and her failure to more promptly seek

medical attention, “Windy’s condition was permitted to

steadily deteriorate until the child’s ordeal was ended

by death,” I cannot concur with the majority in finding

her conduct to be within the proscription of Maryland

Code (1957, 1971 Repl. Vol. [1975 Cum. Supp.]) Art. 27,

§ 35A(a). I would affirm the judgment of the Court of

Special Appeals in Fabritz v. State, 24 Md. App. 708,

332 A.2d 324 (1975).

I fear that my distinguished colleagues may have

been swayed by the photographic exhibits, which they

describe as “painfully demonstrating” the multiple

bruises Windy bore as a result of a “vicious assault,”

and which they find “too graphically illustrated the

18a

suffering to which Windy was subjected by Virginia’s

failure to provide the treatment needed to save the

child’s life.” It is a case such as this as brings forth the

cogent observation of Wolfe, B., in Winterbottom uv.

Wright, 10 M. & W. 116 (1842), where he noted “hard

cases, it has been frequently observed, are apt to

introduce bad law.”!

Art. 72, §1 of the Code (1957, 1970 Repl. Vol. [1975

Cum. Supp.]) places upon a parent the duty to provide

“support, care, nurture, welfare and education,” for a

child under eighteen years of age. Pursuant to this

section, it is incumbent upon a parent to provide

medical attention, when necessary, to a minor child,

although the statute itself does not in specific terms

mention “medical care.”

The unintentional killing of another by the omission,

through gross negligence, to perform a legal duty owing

to him, was involuntary manslaughter at common law.

See Clark & Marshall, “Law of Crimes, § 10.12 (6th ed.

1958). See also R. Perkins, “Criminal Law,” Ch. 2, §1

(1969), at pp. 71-73. This principle has been well

recognized in this state in both Palver v. State, 223 Md.

341, 164 A.2d 467 (1960), and Craig v. State, 220 Md.

590, 155 A.2d 684 (1959).

oe Judge Prescott, writing for our predecessors,

stated:

“{I}t is almost universally recognized that where

the defendant owed to a deceased person a speciiic

legal duty, but failed to perform the same, and

death resulted to the deceased because of the non-

performance of the duty, (at least under circum-

stances where the failure to perform constituted

gross and wanton negligence) the defendant is

~~ of involuntary manslaughter. 1 Warren,

omicide, Sec. 122, states the principle rather

succinctly, as follows:

1 See also the observations of Holmes, J. in Northern

Securities Co. v. United States, 193 U. S. 197, 400 (1904), that

“great cases, like hard cases, make bad law... .”

19a

‘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 man-

slaughter. 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 atten-

tion;* * *” [citations omitted]. 220 M” at 596,

155 A.2d at 688.

Where however “the basis of the charge be felonious

negligence . . . it must [be shown to] have been gross or

criminal negligence.” Neusbaum v. State, 156 Md. 149,

162, 143 A. 872, 877 (1928); “gross or criminal negli-

gence” has been interpreted by this Court to mean “a

wanton or reckless disregard for human life.” Craig v.

State, supra, at 597, 155 A.2d at 688, citing Hughes v.

State, 198 Md. 424, 84 A.2d 419 (1951); Thomas v. State,

206 Md. 49, 109 A.2d 909 (1954); Clay v. State, 211 Md.

577, 128 A.2d 634 (1957).

Convictions for involuntary manslaughter of a

husband and wife were reversed by our predecessors in

Craig v. State, supra. There, the parents, because of

their religious beliefs, treated their six-month-old child

at home, “constantly and tenderly,” without medical

intervention, during an illness, later diagnosed as

pneumonia, which proved to be fatal. Evidence at the

trial was adduced however that prompt medical

attention “may” have saved the child’s life. After

+ observing that “parents are vested with a reasonable

discretion in regard to when medical attention is needed

for their children,” the Court stated:

“If we assume that ordinarily careful and prudent

‘parents would have called in medical aid during

20a

the initial stages of the child’s illness, and,

therefore, the defendants were guilty, at this time,

of ordinary negligence in failing to call in a

physician, we still find nothing in the testimony

that would sustain a finding that during this early

period of the child’s illness the parents displayed ‘a

wanton or reckless disregard for’ the child’s life;

and, if we assume that the seriousness of the

child’s illness was easily discernible to them in the

last two or three days of its life, so that their

failure, at that time, to call in medical aid did

constitute gross negligence, the record fails to

disclose that this failure was the proximate cause

of the child’s death, ... .” 220 Md. at 598, 155

A.2d at 689.?

It is true that in Palmer v. State, supra, as the

majority points out, there was no evidence that the

mother of the child had inflicted any of the blows which

were shown to be the direct and immediate cause of the

child’s death. Upon the facts, to all intents, the

appellant was shown to have been a principal in the

second degree, since she permitted her paramour to

inflict “prolonged and brutal beatings” upon her

twenty-months’-old child. Although the Court concluded

that this “gross or criminal negligence” on her part was

a contributing proximate cause of the child’s death, our

predecessors there, citing 1 Wharton, Criminal Law and

Procedure Section 68 (Anderson Ed.), set forth the

general rule that: “A person is only criminally liable for

what he has caused, that is, there must be a casual

relationship between his act and the harm sustained for

which he is prosecuted.” 223 Md. at 353, 164 A.2d at

474.

It goes without saying, that if the appellee had been

shown not to have provided her child with medical

2 There is a certain parallel between the facts in the

instant case and those in Craig v. State, supra; in both cases

the parents attempted, albeit unsuccessfully and negligently,

to alleviate the child’s suffering; in neither case were the

respecvtive parents the initial cause of the child’s malady.

2la

attention through “gross or criminal negligence” —

with “a wanton or reckless*disregard for human life” —

she would be subject to prosecution for common law

involuntary manslaughter. See 21 Md. L. Rev. 262

(1961). The majority however undertakes to engraft

upon the provisions of Art. 27, §35A(a), the statute

under which the appellee was charged,’ the elements of

the common law offense of involuntary manslaughter

and reaches an equivalent result by equating the

phrase “cruel or inhumane treatment” with “gross or

criminal negligence” and by substituting the word

“injury” with the term “death.”

Penal statutes, those which command or prohibit

certain acts and establish penalties for their violation,

must be strictly construed in favor of the accused and

against the state. Wanzer v. State, 202 Md. 601, 611, 97

A.2d 914, 918 (1953); Weinecke v. State, 188 Md. 172,

176, 52 A.2d 73, 74 (1947). The rule requiring a strict

construction of such statutes means that the punish-

ment proscribed will not be extended to cases not

plainly falling within the language of the statute.

Smith v. Higinbothom, 187 Md. 115, 130, 48 A.2d 754,

761 (1946); State v. Fleming, 173 Md. 192, 196, 195 A.

392, 393 (1937); Healy v. State, 115 Md. 377, 379, 80 A.

1074, 1975 (1911); Mitchell v. State, 115 Md. 360, 364, 80

A. 1020, 1022 (1911). It is thus fundamental that no

person can be held for violating a criminal statute

unless the act with which he is charged comes plainly

within both the letter and the spirit of the statute under

which the charge is laid. State v. Sinclair and

Sinwellan Corp., 274 Md. 646, 660, 337 A.2d 703, 712

(1975); Fowel v. State, 206 Md. 101, 106, 110 A.2d 524,

526 (1955).

As was stated in Daniel Loughran Co. v. Lord

Baltimore Candy and Tobacco Co., 178 Md. 38, 47, 12

. * The indictment charged that the appellee “... did

unlawfully abuse, Windy Lynn Fabritz, a minor child. . . by

inflicting physical injuries sustained as a result of cruel and

path treatment, or as a result of malicious act or

22a

A.2d 201, 205 (1940) “{t]he legislature, in the exercise of

its power to declare what shall constitute a crime or

punishable offense, must inform the citizen with

reasonable precision what acts it intends to prohibit, so

that he may have a certain understandable rule of

conduct and know what acts it is his duty to avoid. 14

Am. Jur. 773, “Criminal Law,” sec. 19; 16 C. J. 67;

Connally v. General Construction Co., 269 U.S. 385, 46

S. Ct. 126, 70 L. Ed. 322.”

As the majority points out, Art. 27, § 35A(a) punishes,

as a felony, any parent, or other person “who causes

abuse to such minor child.” “Abuse” is defined in

subsection (b) 7 to mean: “[A]ny . . . physical injury or

injuries sustained by a child as a result of cruel or

inhumane treatment or as a result of malicious act or

acts. .. .” The statute thus punishes any person who

“causes [any physical injury or injuries [to be] sus-

tained by a [minor] child as a result of cruel or

inhumane treatment or as a result of malicious act or

acts]... .” (emphasis added).

The majority, despite what appears to be the clear

and unambiguous meaning of “physical injury or

injuries,” reads into the statute that the failure of the

appellee to summon proper medical attention for her

minor child, which they find to have been “cruel and

inhumane treatment,” resulting in a worsening of the

child’s condition and leading ultimately to her death,

constituted “physical injury.”

It is axiomatic that “[w]here the statutory language is

plain and free from ambiguity and so expresses a

definite and sensible meaning, that meaning is conclu-

sively presumed to be the meaning which the Legisla-

ture intended. The courts are not at liberty to surmise

the legislative intention to be contrary to the words and

letters of the statute, or to insert or delete words with a

view of making the statute express an intention which

is different from its plain meaning.” Fowel v. State,

supra, at 105, 110 A.2d at 526. See also Mitchell v. State,

supra, at 365, 80 A. at 1022. As stated in Smith v.

23a

Higinbothom, supra, at 125, 48 A.2d at 759, “[wJhere the

language is clear and free from doubt, the Court has no

power to evade it by forced and unreasonable construc-

tion in order to assert its own ideas of policy or morals.”

It is inconsistent “with the just and benign spirit of

our law to give to a criminal statute an interpretation

which can be maintained only by a keen and scholastic

ingenuity, [since] [t]he meaning of the law which

[might] consign a man to prison . . . should be plain

and obvious, and easily understood by an ordinary

capacity.” James v. State, 63 Md. 242, 253 (1885), where ©

it is further stated: “[o]ur functions are limited to

interpreting and enforcing the legislative will when it

has been declared; and it would be very unwarrantable

in us to permit any private sentiments of our own to

affect the construction which we give to these status.”

63 Md. at 254.

It seems to me to be only by a “keen and scholastic

ingenuity” that the majority is able to read into the

phrase “physical injury or injuries,” an interpretation

that this means a worsening or deterioration of a

physical condition which results in death. Such a

construction seems clearly contrary to the precept that

“Tcjourts are not at liberty to insert or delete words with

a view toward making the statute express an intention

which is different from its plain meaning.” Gatewood v.

State, 244 Md. 609, 617, 224 A.2d 677, 682 (1966); Fowel

v. State, supra, at 105, 110 A.2d at 526.

At no place does the legislature suggest that such a

construction was intended. Prior to the amendment of

the statute by Ch. 835 of the Laws of 1973, the statute

penalized any person “who maliciously beats, strikes or

otherwise mistreats such minor child to such degree as

to require medical treatment.” As the Court of Special

Appeals pointed out, “the express purpose of the [1973]

revision was to encourage the reporting of instances of

abuse and only incidentally to rearrange and revise the

language thereof.” 24 Md. App. at 713, 332 A.2d at 327.

There is nothing in the Title to the Act, nor in its

24a

preamble, to justify the interpretation here reached by

the majority. See Fabritz v. State, supra, at 714, nn.3

and 4, 332 A.2d at 327, nn.4 and 5.

“Death,” as defined in Webster’s New International

Dictionary (2d ed. 1948), is “[t]he cessation of all vital

functions without capability of resuscitation; . . . [the]

act or fact of dying.” The statute punishes one who

causes “physical injury” — not one who causes death —

by conduct which is “cruel or inhumane,” or by a

“malicious act or acts.”

Ascribing to the legislature a knowledge of the

existing law as to involuntary manslaughter, applied in

Palmer v. State, supra, and in Craig v. State, supra, I

cannot see how it could have intended, when it revised

in 1973, the provisions of Art. 27, § 35A(a), as limited by

the definition of “abuse” in subsection (b)7, to supersede

the common law of manslaughter, and indeed to apply

a different penalty, where a parent, by criminal

negligence fails to promptly provide its minor child

pss Pay care and thus contributes to the death of

e ;

The acts of the mother here, although theoretically

criminally negligent were not such as to cause “physi-

cal injury” to her daughter; those injuries had already

been inflicted by a third party.‘ Although her failure to

more promptly seek medical aid may have contributed

to the “act of dying” and have hastened the “cessation

of all vital functions,” such failure on her part did not

cause any “physical injury or injuries” as those terms

are well defined. The statute, clearly intending to

punish acts falling outside the common law of assault

but short of manslaughter, undertook to proscribe

* The appellee was acquitted of “assault and battery,”

trial court finding “no evidence in this case of cae Millng os

assaulting of the child by this defendant.” A co-defendant

Thomas (“Tommy”) Crockett, in whose custody the minor

pee ~ “ee a the two-day period when she

; er physical injuries bseq i

acquitted for lack of widesiek ee Wee sicetbages sire

————— ee EE ee

25a

“cruel and inhumane treatment” or “malicious act or

acts” which directly result in “physical injury or

injuries” to such a child. Although Virginia Fabritz’

non-feasance in performing a legal duty she owed her

daughter, may have subjected her to a prosecution for

manslaughter, her conduct was without the language

and obvious intention of the statute invoked.

I agree with the conclusion reached by the Court of

Special Appeals “that to be guilty under the statute, the

accused must be shown to have caused the injury, not

simply [to have] aggravated it by failure to seek

[medical] assistance.” 24 Md. App. at 714, 332 A.2d at

327.

Secondarily, even though I concur with the view of

the majority, that an offense under the statute is

committed “if physical injury to the child resulted

either, from a course of conduct constituting ‘cruel and

inhumane treatment,’ or by ‘malicious act or acts,’” I

cannot agree that under the facts of this case, the

failure of the appellee — over a period of approximately

eight hours — to seek out medical attention constituted

such a “course of conduct.” As I read the statute, the

term “cruel and inhumane,” in juxtaposition with the

words “malicious act or acts,” implies for its applica-

tion, an element of malice equivalent to an act or acts

shown to be “malicious” and requires a scienter to

cause the child to suffer physical injury. Since the

object of the statute proscribes wanton acts causing

physical injury to such a minor child, it was not within

the intent of the statute to punish one for having made

a poor and even negligent attempt at treatment, albeit

made in good faith.

There is no evidence that the appellee’s negative

action in failing to more promptly obtain medical

assistance imputed to her any intent to permit the child

to continue to suffer or to die. When she noticed that the

child was in a semi-conscious state, she fed her liquids

to give her strength. Upon noticing a deterioration in

her physical condition, she called upon a friend to

26a

assist her. The child was then bathed with alcohol, her

temperature taken and she was dressed in pajamas.

Thereafter, a volunteer fire company ambulance was

called and the child was taken to the hospital. Although

deficient, the treatment attempted, with obvious negli-

gence, by the appellee was in no way intended to cause

her daughter any greater suffering, or death. As in

Craig v. State, supra, the choice made by the appellant

was the wrong one; even though it may have consti-

tuted an abnegation of her parental duty and an abuse

of parental discretion, such failure to seek medical care

was not intended to cause, or inflict, any “physical

injury.”

Although facts which might establish a continuing

“course of conduct of cruel and inhumane” treatment,

resulting in “physical injury” to a minor child may be

visualized, we do not have such evidence here. There is

no suggestion in the evidence that the appellant had

ever assaulted, beaten or abused the child or treated it

cruelly or inhumanely. We have only the mother’s

failure to promptly summon medical aid, coupled with

expert testimony that with surgical intervention — as

much as an hour before death — the child “would have

had a chance to live.” The appellee’s negative conduct

in this regard, without any showing of malice or

scienter, did not constitute “cruel and inhumane

treatment” as contemplated within the terms of the

statute.

I would reverse the judgment of the Circuit Court for

Calvert County.

ee ee ee _

27a

Opinion

(Decided January 28, 1976)

Court of Special Appeals of Maryland

No. 500 (on remand)

September Term, 1974

Virginia Lynnette Fabritz,

Appellant,

State of Maryland,

Appellee.

(30 Md. App. 1)

LoweE, J., delivered the opinion of the Court.

The facts surrounding the conviction of Virginia

Lynette Fabritz for child abuse, by a jury of the Circuit

Court for Calvert County, are detailed in our reports,

Fabritz v. State, 24 Md. App. 708, and in those of the

Court of Appeals, State v. Fabritz, 276 Md. 416. Suffice

to say that her conviction and sentence to 5 years

imprisonment were founded upon facts showing that

Mrs. Fabritz had neglected to “seek or obtain any

medical assistance” for her daughter for a period of

eight hours after she should have known, as the Court

of Appeals viewed the evidence, that the need therefor

was ‘compelling and urgent. 276 Md. 416 at 425.

Our opinion of the intent of the Legislature in

enacting the child abuse statute was that an accused

must be shown to have caused the injury to be guilty of

child abuse, “not simply aggravated it by failure to seek

28a

assistance.” 24 Md. App. 714. The Court of Appeals

disagreed. It held that “... a parent would be

criminally responsible as having ‘caused’ such a

physical injury to his child in the sense contemplated

by the statute if, as a result of the parent’s ‘cruel or

inhumane treatment,’ the child suffered bodily harm

additional to that initially sustained as a consequence

of the injury originally inflicted upon him.” 276 Md. at

424. What was meant by cruel and inhumane treatment

within the meaning of the statute was “as those terms

are commonly understood.” In the case at bar, the jury

below “commonly understood” the terms to mean the

failure of a parent to seek or obtain medical assistance

for her daughter for eight hours after she had reason to

know the daughter had been injured. The Court of

Appeals held that the evidence was sufficient to convict

under the statute as that Court interpreted it. The Court

of Appeals then remanded the case to us for considera-

tion of two other issues that had been presented upon

appeal.

Instructions

Appellant set forth two complaints regarding the

instructions. The first is clearly answered by the

opinion of the Court of Appeals.

Appellant complained that the trial judge erroneously

instructed the jury, that if it found that Windy’s death

had resulted from appellant’s cruel or inhumane

treatment, the death could be the resulting injury

contemplated in the definition of abuse in Md. Code,

Art. 27, §35A. The appellant contends there was no

testimony before the jury upon which it could have

made such a finding, and the court’s instructions

permitted the jury to speculate on the proximate cause

of Windy’s death. That issue was considered pointedly

and implicitly answered by the Court of Appeals. After

determining that the Legislature intended that with-

holding treatment could “cause” a physical injury if

such action was cruel and inhumane, the Court

proceeded to point out that the crux of the appeal was

——

a a ee ee

29a

“{wJhether, in view of the evidence adduced at the

trial, Virginia’s failure to obtain medical assist-

ance for Windy constituted cruel or inhumane

a resulting in physical injury to the

Ge. be

In answering its question, the Court also answered

appellant’s:

“We think the jury properly could have concluded

from the evidence that, as a result of Virginia’s

conduct, Windy’s condition was permitted to

steadily deteriorate until the child’s ordeal was

ended by death; that Virginia’s failure to act

caused Windy to sustain bodily injury additional to

and beyond that inflicted upon her by reason of the

original assault and constituted a cause of the

further progression and worsening of the injuries

which led to Windy’s death; and that in those

circumstances Virginia’s treatment of Windy was

‘cruel or inhumane’ within the meaning of the

statute and as those terms are commonly under-

stood.” 276 Md. at 425-426.

We are given less direct guidance by the Court upon

appellant’s other instructional complaint, but find the

answer in its opinion nonetheless. At the conclusion of

the court’s instructions to the jury, the appellant made

the following request for an additional instruction

concerning the principle of gross negligence.

“Mr. Dorsey: Then we would also ask that in

order for the jury to determine that the Defendant

was guilty of cruel and inhuman punishment, if

they accept—

Judge Bowen: Cruel and inhumane treatment.

Mr. Dorsey: Cruel and inhumane treatment,

rather, pane the Court to be correct by saying

death itself would be the physical injury. I would

like the Court to advise the jury that the failure to

provide the medical attention must have been to

constitute cruel and inhumane treatment, must be

of such an aggravated nature as to shock the

conscience of a reasonable amount to, amounting

30a

to gross negligence amounting to almost a wilful

act.

Judge Bowen: We are not talking about negli-

gence we are talking about something that is life

— that could produce serious bodily

arm.

Mr. Dorsey: Well it didn’t come across to me that

way Your Honor.” (Emphasis added).

Although awkwardly articulated, that request ade-

quately preserved the issue of whether appellant was

entitled to an instruction commensurate with the

definition of gross or criminal negligence, i.e., a

“wanton and reckless disregard of human life.” Hughes

v. State, 198 Md. 424, 432.

Appellant relied on Craig v. State, 220 Md. 590 which

is apposite factually. There, both parents of a child who

died from pneumonia were convicted of involuntary

manslaughter for withholding medical aid for 2 or 3

days after the seriousness of the child’s illness became

apparent. That their withholding of medical aid was

predicated upon their religious beliefs (although indica-

tive of an intentional denial of medical aid) was

considered by the Court to be

“.. beside the point, unless their gross and

wanton negligence — ordinary negligence being

insufficient — caused the child’s death. We have

pointed out above that parents are vested with a

reasonable discretion in regard to when medical

attention is needed for their children. If we assume

that ordinarily careful and prudent parents would

have called in medical aid during the initial stages

of the child’s illness, and, therefore, the defendants

were guilty, at this time, of ordinary negligence in

failing to call in a physician, we still find nothing

in the testimony that would sustain a finding that

during this early period of the child’s illness the

parents displayed ‘a wanton or reckless disregard

for’ the child’s life; and, if we assume that the

seriousness of the child’s illness was easily

discernible to them in the last two or three days of

3la

its life, so that their failure, at that time, to call in

medical aid did constitute gross negligence, the

record fails to disclose that this failure was the

proximate cause of the child’s death, because, as

above noted, the doctors stated that it would then

have probably been ineffective to control the

disease.” Craig v. State, 220 Md. at 598-599.

The Craig Court then held that the evidence was

insufficient to sustain a finding that gross negligence

on the part of the defendants was the proximate cause

of the child’s death.

The Craigs were tried for involuntary manslaughter.

Criminal negligence or “conduct intentionally or

wantonly disregardful of any interest of others” is a

species of involuntary manslaughter. Perkins on

Criminal Law at 70 (2d ed. 1969). Mrs. Fabritz was tried

for child abuse and, as the Court of Appeals pointed out

in Fabritz, that crime is entirely different. The jury was

to determine not whether appellant’s conduct was

“intentionally or wantonly disregardful of any interest

of others,” but rather whether

“. . . Virginia’s treatment of Windy was ‘cruel or

inhumane’ within the meaning of the statute and

as — terms are commonly understood.” 276 Md.

at 426.

Although we are troubled by the breadth of that

definition of “cruel and inhumane” treatment,' we find

' As the statute is interpreted by the Court of Appeals and

noted by Judge Bowen in his instructions, there is no defined

line of demarcation between neglect and abuse. It is also

noted that the Craig Court pointed out that “parents are

vested with a reasonable discretion in regard to when

medical attention is needed for their children.” We are not

told the standards by which a nt will be held accountable

for error in the exercise of such discretion. In the absence of

criteria delineating that which is parental discretion, that

which is neglect, and that which amounts to abuse under the

Court of Appeals’ interpretation of the statute (common

understanding of “cruel and inhumane”), failure to seek

medical aid for one’s child propitiously, may be proper

parental discretion, simple neglect or culpable criminal

32a

that Judge Bowen’s instruction did not violate the

standard so prescribed.’

Cross-Examination

The determination of criminal culpability by the jury

thus rested upon whether they found Mrs. Fabritz’s

delay in seeking medical attention for Windy was poor

judgment, though excusable as parental discretion, cf.

Craig v. State, 220 Md. at 597; neglect (which was not

charged), or inaction amounting to what the jurors

“commonly understood” to be cruel or inhumane

treatment. The judge described the question in some-

what more narrow terms:

“Somewhere and the Court is not prepared to say

to you where that line is to be drawn, somewhere in

the relative descending scale actions become abuse

as opposed to neglect.

* * * * * *

Whether the Defendant’s conduct was actuated

by malice or evil intent and whether you find it

was .. . within the framework of this case, either

neglect or abuse, is the question you ladies and

gentlemen have to resolve.”

conduct « vending only upon what the jury decides. The

Court of — noted: that Virginia knew, or should have

known, oi Windy’s condition for a period of eight hours. We

are unable to say at what point during that eight hour period

Virginia was 1) exercising discretion in not seeking medical

attention sooner; 2) neglectful for not having sought it

sooner; and 3) guilty of “cruel and ir‘umane treatment” for

= hogs. ' paent it a than 7 did. Nor are we able to

advise a trial judge what test ma recommended j

in their deliberation. . sayings

In pointing this out, we hasten to note that the statute was

not questioned on constitutional grounds and we are

precluded from deciding that issue here on remand. Vuitch v.

State, 10 Md. App. 389, 398.

_ ? We have appended relevant excerpts of Judge Bowen’s

instructions clearly illustrating their compliance with the

opinion of the Court of Appeals.

33a

Therefore, the most crucial testimony in the case that of

the expert medical witnesses produced by the State, one

of whom was Dr. Delroy Hire, a pathologist with the

State Medical Examiner’s office. For reasons undis-

closed, appellant submitted as to Dr. Hire’s qualifica-

tions to testify as an expert pathologist.

“Mr. Dorsey: Your Honor, I am sure the State’s

Attorney wants the jury to have the benefit of the

background of the doctor. We do submit to his

qualifications.”

Sometime. later, the question concerning Dr. Hire’s

qualifications was again raised and the stipulation

more clearly defined.

“Mr. Sengstack: For the record Your Honor, it is

my understanding that the defense counsel did

stipulate that the doctor was an expert.

Mr. Dorsey: Expert as to pathology, Your Honor,

not to surgery.”

The testimony disclosed that Dr. Hire had performed

an autopsy on Windy which indicated her death had

come from generalized peritonitis brought about by

“blunt trauma,” that is, multiple bruises about her

entire body. More damaging to Mrs. Fabritz was his

testimony that symptoms of distress or serious illness

should have been apparent from time to time during the

elapsed period between trauma and death. This testi-

mony was designed to show that during the eight hour

period that she delayed seeking medical attention, Mrs.

Fabritz must have been aware of the seriousness of

Windy’s condition. Equally critical was the doctor’s

testimony that, during at least part of this eight hour

period, medical attention might have saved Windy’s

life. Obviously, the weight given by the jury to this

expert’s opinion that the seriousness of Windy’s

physical condition would have been apparent to her

mother was determinative of the result the jury

reached.’ The very isue before the jury was whether

3 Dr. Baban, a general practitioner, also testified for the

State concerning the physical manifestations of Windy’s

condition.

34a

Mrs. Fabritz should have known from simple observa-

tion that her daughter was in critical and immediate

need of medical aid. This was pointed out to the jury

when the judge instructed:

“Now the question of whether or not such action

is called for is one of fact and that must be resolved

by you ladies and gentlemen. Critical to the

resolution to that question we think and so advise

you, is the extent of information or notice that the

person having custody of the child had of the

necessity for such action.” (Emphasis added).

On cross-examination appellant therefore sought to

discredit the doctor in the eyes of the jury. One attack

was based upon his lack of experience as a practitioner

of medicine and in treating children of Windy’s age for

peritonitis. The court precluded that inquiry giving

three reasons for foreclosing that line of examination.

“Q. How many three year old children have you

treated for peritonitis?

Mr. Sengstack: Objection.

Judge Bowen: Sustained.

Mr. Dorsey: Well Your Honor this certainly goes

into — he has made certain—

Judge Bowen: Objection sustained.

_Q. Well doctor, have you ever actively engaged

in the private practice of medicine?

Mr. Sengstack: Objection.

Judge Bowen: Sustain the objection. You admit-

ted he was qualified.

Mr. Dorsey: Your Honor I would like to approsch

the bench please. I do not like to argue in front of

the jury.

Judge Bowen: You may do so.

(counsel to bench)

Mr. Dorsey: Your Honor, I objected at the time it

was part of his testimony and it was overruled.

However, the State’s Attorney has had the patholo-

35a

gist testify to certain objective symptoms that this

child would have exhibited so many hours prior to

death. I certainly think that I have the right to

cross examine him to, at least, attempt to refute his

testimony to show he is not qualified, ‘he has had

no experience on which to base his opinion as to

certain complaints which would be exhibited by

this child so many hours prior to her death. He

made an unequivocal statement to that effect.

Judge Bowen: You may cross examine him on

that, but what does the variety of practice or

anything, or any other type of practice have to do

with that. He obviously doesn’t practice clinical

medicine.

Mr. Dorsey: That is the point I want to bring out

to the jury Your Honor. You see, not to attack his

report, but to attack his opinions as to—

Judge Bowen: You may cross examine about his

opinions, but I am not going to let you embarrass

him by asking about his private practices.

* * * * * *

Q. Now doctor you have really concerned your-

self in your medical career with the ~gyseamgy of

medicine and I guess in later years you ha

concentrated on it. A. That is partially true. We

are all doctors first and then we specialize.

Q. And you specialized in pathology. A. Right.

Q. And in the course of — you have actually

never treated patients or—

Mr. Sengstack: Your Honor, Mr. Dorsey has been

warned about this once already and the State

would object. There is a proper’ way to ask it and an

improper way. Mr. Dorsey insists on asking it the

improper way.

Judge Bowen: Finish your question.

- Q. So doctor in the period of time that you have

been e naseee or graduated from law school— A.

Law schoal?

Q. I mean medical school, in the period of time

you graduated from medical school, you really

36a

have not been familiar with complaints exhibited

by patients in the course of treatment.

Mr. Sengstack: Objection.

Judge Bowen: Objection sustained. He doesn’t

tend patients.

Q. Doctor then you have not been engaged in the

practice of medicine in which you would diagnose

and treat patients?

Mr. Sengstack: Objection.

Q. Or have you ever been so engaged.

Judge Bowen: Objection sustained.” (Emphasis

added).

The judge pointed out that appellant had admitted that

the doctor was qualified, that it was obvious that the

doctor didn’t practice “clinical medicine,” and he

should not be “embarrassed” by asking him about his

private practice.

We do not find the judge’s reasons for denying that

line of cross-examination persuasive. The stipulation by

appellant as to the doctor’s qualifications was an

admission that he was qualified to express an expert

opinion, not that his qualifications were inpeccable and

unimpeachable. Furthermore, appellant explained that

this stipulation that the doctor was qualified was

limited to the speciality of pathology. Secondly,

although it was “obvious” to the judge that a patholo-

gist is not a treating physician, this fact had not been

imparted to the jury and thus the appellant should not

have been precluded from further examination. Finally,

the judge’s desire to protect the doctor from embarrass-

ment would have been commendable had it not

interfered with the rights of appellant. Citing Alford v.

United States, 282 U.S. 687, 694, the Supreme Court in

Davis v. Alaska, 415 U.S. 308, 320 held that the court is

under no obligation “to protect a witness from being

discredited on cross-examination, short of an attempted

invasion of his constitutional protection from self-

incrimination, properly invoked.”

——— os en

37a

The answers appellant sought to elicit bore directly

on the weight the jury should give to Dr. Hire’s

testimony, upon which much of the case against Mrs.

Fabritz was based. The subject matter was clearly

relevant. See C. McCormick, Evidence, § 185 at 435 (2d

ed. 1972). Dr. Hire’s opinion that the outward symptoms

of illness, malaise and pain must have been manifested

by Windy as a result of her condition was the evidence

before the jury of “the extent of information or notice”

given to Mrs. Fabritz which the judge instructed was

critical to the resolution of the case. Thus, the doctor’s

believability was crucial to the defense and

“(cjross-examination is the principal means by

which the believability of a witness and the truth

of his testimony are tested. Subject always to the

broad discretion of a trial judge to preclude

repetitive and unduly harassing interrogation, the

cross-examiner is not only permitted to delve into

the witness’ story to test the witness’ perceptions

and memory, but the cross-examiner has tradition-

ally been allowed to impeach, i.e., discredit, the

witness.” Davis v. Alaska, 415 U.S. 308, 316.

In Wimpling v. State, 171 Md. 362, 376, the Court of

Appeals held that opinions of experts should not be

allowed on subject within the range of common

knowledge of the average man. In so ruling, the Court

emphatically held that expert opinion testimony should

only be resorted to when “it clearly appears that it is

essential to a full and fair presentation of the case and

will aid the trier of fact in dealing with it,” because

such testimony is of the “very lowest order and the

most unsatisfactory character.” Impliedly then, it

should be scrutinized carefully and subjected to rigid

cross-examination to test the foundation upon which

the opinion was formed. The Court quoted Jones on

Evidence, saying:

“Tt hae been said of expert testimony: ‘It is not

desirable in any case where the jury can get along

without it, and is only admitted from necessity,

and then only when it is )/xely to be of some value.’

‘The evidence of experts is of the very lowest order

38a

and the most unsatisfactory character.’ Ali testim-

ony founded upon opinion merely is weak and

uncertain, and should in every case be weighed

with great caution. ‘The unsatisfactory nature of

such evidence is well known... .’” Wimpling uv.

State, 171 Md. at 376.

One way of attacking an expert opinion is to show the

expert’s lack of experience, thus discrediting the source

of knowledge upon which he bases his opinion. By

doing so, the cross-examiner affords the jury an

opportunity to decide that the “expert” has feet of clay

and his opinion is not to be valued.

“We cannot speculate as to whether the jury, as

sole judge of the. credibility of a witness, would

have accepted this line of reasoning had counsel

been permitted to fully present it. But we do

conclude that the jurors were entitled to have the

benefit of the defense theory before them so that

they could make an informed judgment as to the

weight to place on Green’s testimony which

provided ‘a crucial link in the proof ... of

petitioner’s act.’ Douglas v. Alabama, 380 U.S., at

419, 13 L. Ed. 2d 934.” Davis v. Alaska, 415 USS. at

317.

Davis v. Alaska, supra, dealt with the denial of cross-

examination of a witness concerning his juvenile

record, but again underscored the Supreme Court’s prior

rulings that a denial of the right of effective cross-

examination is “constitutional error of the first magni-

tude [which] no amount of showing of want of prejudice

[can] cure... .” Davis v. Alaska, 415 U.S. at 318;

Brookhart v. Janis, 384 U.S. 1, 3; Smith v. Illinois, 390

U.S. 129, 131. :

Harmless Error

The denial here was error; but, the State argues that,

assuming the court improperly restricted the scope of

cross-examination, “such action by the trial court was

harmless error, for it is well settled that the reception or

rejection of improper evidence is not reversible error

unless there is demonstrable prejudice. Barger v. State,

39a

2 Md. App. 565 (1967); Duncan v. State, 5 Md. App. 440

(1968); Williams v. State, [15 Md. App. 320 (1972)].” The

State points to related testimony permitted by the court

arguing that it sufficed to put the doctor’s experience

into evidence.

We can find no basic difference between the questions

permitted and the questions denied. As indicated in

context above, the judge denied answers to three

questions, two of which were:

1. “How many three year old children have you

treated for peritonitis?”

2. “. .. [In the period of time you graduated

from medical school, you really have not been

familiar with complaints exhibited by patients in

the course of treatment.”

While the objections to these questions were sus-

tained, the witness, over objection, was permitted to

answer a later question asked by appellant:

“Well, in the period of time since you graduated

from medical school and been a doctor, have you

ever observed any living person suffering from

peritonitis?”

Following an affirmative answer, appellant’ then

pursued by asking:

“And on how many different occasions have you

— and what were their ages?”

Again an answer was permitted and further follow-up

questions were asked without objection.

Appellant had expressly stated what he sought to

elicit by this line of questioning in his colloquy at the

bench with Judge Bowen:

‘“. .. [ have the right to. . . attempt to refute his

testimony to show he is not qualified, he has had

no experience on: which to base his opinion. . . .

Judge Bowen: You may cross examine him on

that, but what does the variety of practice or

anything, or any other type of practice have to do

40a

with that. He obviously doesn’t practice clinical

medicine.

Mr. Dorsey: That is the point I want to bring out

to the jury Your Honor. You see, not to attack his

report, but to attack his opinions... .”

Appellant’s purpose was also reflected in the third

question to which an objection was sustained:

3. “Doctor then you have not engaged in the

practice of medicine in which you would diagnose

and treat patients?”

Once again we find that the appellant provided an

opportunity for the judge to correct his former error and

once again, intentionally or not, he did so, this time by

permitting the question and answer, uninterrupted by

an objection.

“Q. What practical experience do you have

doctor from subjective complaints made from

living persons that you have observed? What

practical experience do you have to state your

opinion as to the objective and subjective com-

plaints a three year old child would have from

suffering from peritonitis some five hours prior to

her death? A. In medical school, before you

become a doctor you are engaged in diagnosing

and treatment of all kinds of diseases, either

medical, physical, pediatrics, whatever. I have

already stated I am not a pediatrician, I am a

pathologist, but as far as the medical diagnosis of

patients, I have been engaged in that ever since the

days of medical scheol. As far as treatment of

patients, the same.

Q. You are then engaged in the practice of

medicine? A. Pathology is a practice of medicine,

it is a speciality of medicine.

Q. You could conduct a test. A. Yes.”

Each question to which an objection was originally

sustained was later permitted — practically in totidem

verbis. The purpose for which the examination was

sought, as expressed by appellant, was fulfilled to

4la

appellant’s seeming satisfaction since he voluntarily

abandoned that line of questions after successfully

covering the issue on his second attempt.

As pointed out in Chapman v. California, 386 U.S. 18,

23, not all “trial errors which violate the Constitution

automatically call for reversal.” The error here was

rendered harmless because subsequently corrected.

Although the trial judge did not expressly reverse his

prior rulings, he did so in fact, by a contrary ruling

when the question concerning Dr. Hire’s experience was

raised a second time. The follow-up questions were

asked and answered without objection.

We cannot find that there is a reasonable possibility

that the initial erroneous rulings of the trial judge

contributed to the conviction. See Chapman, supra at

23. Recognizing that opinion evidence is of the “very

lowest order and the most unsatisfactory character,”

Wimpling v. State, 171 Md. 362, 376, and thus implicitly

should be subject to rigid cross-examination, we find no

question asked,or proffered, which was not subse-

quently permitted even though initially denied. We

conclude that the “minds of an average jury” would not

have found that State’s case significantly less persua-

sive had the questions been permitted when first asked

rather than when ultimately allowed. Schneble v.

Florida, 405 U.S. 427, 432. The jurors had the benefit of

“or defense theory before them, cf. Davis v. Alaska, 415

U.S. at 317.

Judgment affirmed.

42a

APPENDIX

“Now the actions which the Statute prescribes are

abuse which results from cruel or inhumane treatment.

I don’t think that those words need any special

definition to you ladies and gentlemen. You know what

is cruel and I am sure you know what the word

‘inhumane’ means. If the treatment is cruel or inhu-

mane and it results in physical injury, it is absue within

the definition of this Statute. If physical injury results

as a result of a malicious act, it is also abuse within the

meaning of this Statute. Perhaps the word malicious

does need some further explanation for you. An act is

done with malice or it is malicious if it is an act that is

done with an evil or wicked intent or motive. The term

malice implies an evil or imports, I should say, the term

‘malice’ imports an evil wicked purpose in the doing of

an act.

+ * * * * +

In addition to the duty to refrain from doing that sort

of thing, a parent or custodian of a child, has by virtue

of the position by which they stand and the dependency

of the child, a duty to take positive action and

affirmative action to see that physical injury does not

occur to that chi!d if they are put on notice that the

need for such action exists. You may be entitled to do

what the Pharisee and the Levite did, that is cross the

road and go down the other side if the person who is in

danger of expiring is not your child, but when you have

a child who is in your care and custody, you have an

affirmative duty, not only to provide it with shelter and

sustenance, but also those reasonable medical necessi-

ties which may mean the difference between its chance

to life and death.

Now the question of whether or not such action is

called for is one of fact and that must be resolved by

you ladies and gentlemen. Critical to the resolution to

that question we think and so advise you, is the extent

of information or notice that the person having custody

of the child had of the necessity for such action.

43a

Now, there are some actions which may be termed

under the heading of neglect of children which

contravene the criminal law. Neglect generally encom-

passes the failure to provide the basic necessities for

life; that is, minimum shelter, minimum degree of

sustenance and minimum degree of supervision and

protection. There comes a time in this country when if

the treatment of your children falls below what the

cominunity expects in these areas and the matter is

brought to the attention of the authorities, you will be

charged with neglect and the State will step in to

provide what the parent or the custodian is deficient in

providing.

Some where and the Court is not prepared to say to

you where that line is to be drawn, some where in the

relative descending scale actions become abuse as

opposed to neglect. The Court would suggest that the

distinction between abuse and neglect in the failure to

do what you ought to do as opposed to doing something

you ought not to do in direct relationship to the child,

comes when the failure becomes a failure to provide

something that is in the absence of its provision life

threatening or apt to produce death or serious bodily

harm; thus five meals in a row missed, may produce a

very hungry and a very distressed child, but alone not

necessarily life threatening. There comes a time when

medical attention is called for and obviously necessary,

if it is not provided, it is life threatening and it is on

that position as I understand it that the State is

proceeding in this case.

Whether the Defendant’s conduct was actuated by

malice or evil intent and whether you find it was of

that, as a fact within the framework of this case, either

neglect or abuse, is the question you ladies and

gentlemen have to resolve.

+ > + + * +

The State must show that her conduct amounted to

cruel and inhumane treatment of this child or that it

was a malicious act and that as a result of the cruel and

44a

inhumane treatment or the malicious act, physical

damage occurred to the child and that combination

meets the definition of abuse in the Statute. Anything

short of that, the Defendant must be acquitted.

This is not a case where we are trying somebody for

neglect, this is a separate criminal act of child abuse.”

Memorandum & Order

(Filed January 20, 1977)

United States District Court for the District of Mary-

land.

Civil A. No. Y-76-967

Virginia Lynnette Fabritz,

Plaintiff,

Harry J. Traurig,

Superintendent, Maryland Correctional Institution

for Women,

Defendant.

MEMORANDUM AND ORDER

Petitioner is in this Court on,petition for a writ of

habeas corpus having been convicted in the Circuit

Court for Calvert County of child abuse in violation of

Maryland Article 27, § 35A. She appealed her conviction

to the Maryland Court of Special Appeals where it was

reversed on the ground that the statute did not reach

the conduct charged. Fabritz v. State, 24 Md. App. 708

(1975). The Maryland Court of Appeals reversed the

Court of Special Appeals, construing the statute to

include petitioner’s conduct, and remanded the case for

further consideration. State v. Fabritz, 276 Md. 416

(1975). After more proceedings in the state appellate

45a

courts, petitioner sought writ of certiorari to the United

States Supreme Court which was denied. 425 U.S. 942

(1976).

The facts of the case are taken from the opinion of the

Maryland Court of Appeals in State v. Fabritz, supra.

Virginia Lynnette Fabritz (Virginia) was

charged with violating this statute by abusing her

three-and-one-haif year old daughter Windy. Evi-

dence adduced at the trial before a jury in the

Circuit Court for Calvert County showed that

Windy was brought to the Calvert County Hospital

at 10:35 p.m. on October 3, 1973 in a badly beaten

condition with approximately seventy bruises or

contusions covering her body, ranging in size from

one inch to five inches. She was pronounced dead

on arrival at the hospital, her death bein

attributed to peritonitis resulting from a perfora

or ruptured duodenum. The evidence showed that

Windy’s injuries were the result of “blunt trauma”

caused by an instrument or a first, or some kind of

blow inflicted within eighteen to twenty-four hours

prior to her death.

Virginia had left Windy in the custody of

Thomas Crockett and his wife Ann, with whom she

resided, on October 1. Virginia did not see Windy

again until 1 i on October 3, at which time she

noticed that Windy was very listless. Crockett told

her that Windy had driven with him on his

motorcycle and had gotten sick as a result of a

bumpy ride. At 2:30 p.m. Windy complained of

cramps and was running a slight fever; } spina

attributed this to the flu. She then bathed Windy

_and, after observing her badly beaten body, put her

to bed and spent the remainder of the a oon

watching Crockett work on his motorcycle. At 5

p.m. Virginia observed that Tewar, Monearee to be

in a semiconscious state, but she did not take her to

the hospital because she “was too ashamed of the

bruises on her daughter’s body.” There was

evidence that indy Saerwatier sat up and ap-

peared normal for a brief , but at 6 p.m. she

vomited and again comp that she did not feel

46a

well. At 7 p.m. Virginia put Windy back to bed and

called a friend, Connie Schaeffer, and asked that

she look at Windy. Miss Schaeffer arrived at 9 p.m.

Windy was lying on the floor of the den, covered by

a wet diaper. She was limp, and appeared uncons-

cious. When Miss Schaeffer questioned Virginia

about the bruises on Windy’s body, Virginia

responded, “Tommy (Crockett) hits hard.” Windy’s

condition worsened and at 9:45 p.m. Ann Crockett

contacted the hospital. She was advised to bring

Windy to the hospital immediately. After Mrs.

Crockett left for the hospital with Windy, Virginia

told Miss Schaeffer, “It is my fault. I killed her.”

Shortly thereafter, Virginia went to the hospital

and learned that Windy was dead.

Expert medical evidence was adduced to show

that a child with peritonitis would vigorously

complain once she sustained the injury and would

continue to complain until the onset of a coma; that

at the time the injuries were sustained, there would

have been immediate pain and the child would

have begun to feel poorly; that the pain would have

gradually increased, followed by fever, vomiting,

and lack of appetite; that within six hours prior to

death, the child would have become stuporous and

comatose; that Windy would have lived had an

operation been performed within at least twelve

hours prior to death; and that she would have had

a chance to survive if surgery had been performed

up to an hour before death. A pathologist testified

that it was his medical opinion, based upon the

degree of injury, the multiplicity of wounds and his

examination of Windy’s body, that the injuries did

not happen accidentally. There was no evidence

indicating that Virginia struck the blows which

caused the initial injuries to her child, nor was

there any evidence to show that Virginia had

knowledge that the person in whose custody she

left Windy would abuse her.

276 Md. at 418-19.

Based on these facts, petitioner was found guilty of

violating Maryland Article 27, § 35A, “Causing abuse to

en ke eet tt

ee eS ee

i i Cte ee Cae ne EO

47a

a child under eighteen,” and sentenced to five years

imprisonment. The statute provides as follows:

Any parent, adoptive parent or other person who

has the permanent or temporary care or custody or

responsibility for the supervision of a minor child

under the age of eighteen years who causes abuse

to such minor child shall be guilty of a felony and

upon conviction shali be sentenced to not more

than fifteen years in the penitentiary.

Insofar as it is relevant to this case, the statute defines

“abuse” as:

(A)ny: (A) physical injury or injuries sustained by a

child as a result of cruel or inhumane treatment or

as a result of malicious act or acts by any parent,

adoptive parent or other person who has the

permanent or temporary care or custody or respon-

sibility for supervision of a minor child. . .

Failure to Exhaust Available State Remedies

The issues raised in this Court center around a

challenge to the constitutionality of applying § 35A to

petitioner’s conduct. They apparently have not been

raised in any state court proceedings. However, because

they derive from a construction given to .a criminal

statute by Maryland’s highest court in this very case, it

seems that any attempt to exhaust remedies would be

futile, and this Court will not require petitioner to

return to the state courts. Mohr v. Jordan, 370 F. Supp.

1149 (D. Md. 1974) (Harvey, J.).

Petitioner’s Constitutional Claims

Petitioner presents a number of arguments on her

behalf. She alleges that the statute as written is

unconstitutionally vague as applied to the facts of her

case insofar as the construction given it by the

Maryland Court of Appeals was not to be anticipated;

that the standard “cruel or inhumane” is too indefinite

to give guidance to a trier of fact; that this construction

failed to adhere to a principle of strict construction of

criminal laws; and that what the Maryland Court of

48a

Appeals did amounted to the equivalent of ex post facto

law making. While these arguments are presented

separately in petitioner’s memorandum, their thrust is

the same.* The Court will treat the issue raised as

whether § 35A is unconstitutionally vague as applied to

petitioner’s conduct for failure to give adequate gui-

dance to a trier of fact and adequate notice that neglect

in seeking necessary medical attention for her child

could be covered by the statute.

Vagueness

In support of her claim of unconstitutional vague-

ness, petitioner points to an absence of clear legislative

intent or prior judicial construction indicating her

conduct fell within the statute. Section 35A was

amended in 1973 to include the phrase “cruel or

inhumane treatment” within the definition of abuse.

Prior to the 1973 amendments, the statute only reached

affirmative kinds of abuse. State v. Fabritz, 276 Md. at

423. The record of the legislature’s intent in enacting

the amendments sheds little light on whether after their

passage, a failure to act by neglecting to seek medical

attention could also amount to abuse. At the time

petitioner’s child died, there was no judicial construc-

* Petitioner cites a number of cases in support of her

argument that the Maryland Court of Appeals failed to meet

a due process requirement that criminal statutes be strictly

construed. United States v. Bass, 404 U.S. 336 (1971); United

States v. Enmons, 410 U.S. 396 (1973); Rewis v. United

States, 401 U.S. 808 (1971); Bell v. United States, 349 U.S. 81

(1955); McBoyle v. United States, 283 U.S. 25 (1931). These

cases recognize a rule of construction that binds federal

courts in construing Congressional criminal enactments. One

concern expressed in the cases supporting such a rule was the.

requirement of fair notice. But the Court did not purport to

impose it as a limitation on state power independent of the

vagueness doctrine.

Similarly, petitioner’s “ex post facto law making” argu-

ment has no merit. The assumption on which the argument is

premised is that she did not have fair notice that her conduct

could be covered by the statute. If this is the case, the

vagueness doctrine will bar the prosecution and there is no

need to resort to the ex post facto provision.

—— ~~.

49a

tion of the amendments clarifying this uncertainty in

their scope. The Court therefore is left to view the

statutory provision without the “gloss” of legislative

history or judicial construction to see if it can constitu-

tionally be applied to defendant’s conduct.

The due process standard for challenging a criminal

statute on vagueness grounds is whether “men of

common intelligence must necessarily guess at its

meaning and differ as to its applications. . .” Connally

v. General Construction Co., 269 U.S. 385 (1926). The

Supreme Court has said that the “essential purpose of

the ‘void for vagueness’ doctrine is to warn individuals

of the criminal consequences of their conduct .. .”

Jordan v. DeGeorge, 341 U.S. 223 (1951). The statute

must give fair notice of the offending conduct. Papach-

ristou v. City of Jacksonville, 405 U.S. 156 (1972);

Grayned v. City of Rockford, 408 U.S. 104 (1972). The

due process clause does not permit a legislature to

require persons to speculate as to the meaning of penal

statutes. Lanzetta v. New Jersey, 306 U.S. 451 (1939).

Vagueness as a constitutional problem usually arises

because the legislature is unable to write statutes with

the precision that would be desirable. Too often the

types of conduct it seeks to reach cannot be clearly

foreseen. The Supreme Court has said that it goes “far

to uphold state statutes that deal with offenses,

difficult, define, when they are not entwined with

limitations on free expression.” (emphasis added).

Winters v. New York, 333 U.S. 507 (1948). In fact, in

recent years, the Court has candidly admitted that:

(I)n a noncommercial context behavior as a general

rule is not mapped out in advance on the basis of

statutory language. In such cases, perhaps the

most meaningful ge of the vagueness doctrine

is not actual notice, but the other principal element

of the doctrine — the requirement that a legislature

establish minimal guidelines to govern law enforce-

ment.

50a

Smith v. Goguen, 415 U.S. 566 (1974). The due process

clause does not allow statutory language of such

standardless sweep as to allow policemen, prosecutors

and juries to pursue their “personal predilections.” The

problem in Smith was said to be “selective law

enforcement.” In this case, petitioner does not allege

she is being isolated for prosecution under the statute.

In contrast to Smith v. Goguen, supra, where

behavior, arguably within the scope of the statute

might have been protected by the first amendment,

petitioner’s conduct here is unprotected and in the

Court’s view, outrageous. Maryland law imposes a duty

on a parent to provide for the medical needs of his or

her child. Article 72A, § 1. Failure to do so may amount

to a criminal homicide. Palmer v. State, 223 Md. 341

(1960). Federal courts should hesitate before pointing to

some uncertainty in the scope of a state criminal statute

as a ground for finding a violation of due process when

the conduct alleged is in every respect inexcusable.

This Court is convinced that petitioner was provided

with fair notice that the Maryland Court of Appeals

would construe section 35A to include her conduct

within the scope of the statute. The Court agrees the

phrase “cruel or inhumane treatment” is not a model of

statutory precision, but holds that the failure to act

proves in petitioner’s case could reasonably have been

foreseen to fall within the meaning of that phrase even

by one unfamiliar with the peculiar legal usages of the

English language. According to Webster’s Third New

International Dictionary, “treatment” is defined in a

way which includes “conduct or behavior towards

another party” within its meanings. “Cruel” includes

“devoid of kindness,” “arising from or indicative of an

inclination to enjoy another’s pain or misfortune,” and

“stern, rigorous, and grim: unrelieved by leniency or

softness.” “Inhumane” is defined as not “marked by

compassion, sympathy, or consideration for other

human beings.” The definitions quoted here indicate

that failing to act can be a form of “treatment” because

it is a manifestation, albeit a negative manifestation, of

a le A EE a a

5la

conduct or behavior towards another. Failure to seek

attention for the critical medical needs of one’s child

could be “cruel” because it is “devoid of kindness,” or

“inhumane” because it lacks “compassion, sympathy,

or consideration.”

Petitioner cites Furman v. Georgia, 403 U.S. 238

(1972) and Gregg v. Georgia, — U.S. — (1976) to

illustrate the uncertainty surrounding the meaning of

the phrase “cruel and unusual” in the eighth amend-

ment. She suggests the Maryland standard is no less

uncertain. Without intending to suggest that the eighth

amendment’s limitation on governmental action in

anyway controls the reasonable meaning of the

Maryland definition of child abuse, the Court calls

petitioner’s attention to Estelle v. Gamble, 45 U.S.L.W.

4023 (November 30, 1976). There it is noted that de-

liberate indifference of prison officials or personnel to

serious medical needs of prisoners constitutes cruel and

unusual punishment proscribed by the eighth amend-

ment.

The Court in reaching the conclusion here expresses

no opinion on the construction given to §35A by the

Maryland Court of Appeals. Obviously, it is a question

as to which reasonable judicial minds have differed.

Petitioner points to this disagreement among the

Maryland appellate judges to support her argument

that the statute does not provide fair notice. But the fact

that four out of ten appellate judges disagreed with the

highest Maryland Court’s majority opinion as to a

proper construction of the statute does not close the

issue whether fair notice was given that it might be

construed in the way it has been.

Petitioner questions the propriety of the trial judge’s

charge to the jury which left the jurors free in their

deliberations to apply their own understanding of the

standard “cruel or inhumane treatment.” The trial

judge suggested but not instruct that the dividing line

between statutory abuse and simply noncriminal

neglect might be where the failure to act endangered

52a

life. In the absence of a more precise instruction, this

Court must assume the jury interpreted the phrase

“cruel or inhumane treatment” in a way consistent with

its general meaning discussed above. Just as that

meaning gave petitioner fair notice that her conduct

might violate the child abuse statute, it provided

adequate guidance for the jury in determining guilt. All

that the State attempted to prove was knowing neglect

of the serious medical needs of petitioner’s child that

resulted in her death. This is all upon which the jury

could have based its guilty verdict. In its deliberations,

the jury could reasonably have found that petitioner’s

conduct was “cruel” or “inhumane” and therefore

violated the statute.

For the foregoing reasons, it is this 20th day of

January, 1977 by the United States District Court for

the District of Maryland.

ORDERED:

That the petition for Writ of Habeas Corpus be, and

the same is, hereby DENIED.

JOSEPH H. YOUNG

United States District Judge.

ee ee es oe ts

fo ea 6 ee a i ea

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53a

Opinion

(Filed September 28, 1978)

United States Court of Appeals

for the Fourth Circuit

No. 77-1411

Virginia Lynn Fabritz,

Appellant,

_ Harry J. Traurig,

Superintendent, Maryland Correctional Institution

for Women,

Appellee.

Appeal from The United States District

Court for The District of Maryland,

at Baltimore, Joseph H. Young,

District Judge.

(Argued October 7, 1977 Decided September 28, 1978)

Before Haynsworth, Chief Judge, Bryan, Senior Circuit

Judge and Russell, Circuit Judge.

Albert V. Bryan, Senior Circuit Judge:

Habeas corpus was refused by the District Court to

Virginia Fabritz, a 20-year old mother, who was

imprisoned under a conviction and five-year sentence in

a Maryland court for abuse — delayed medical

attention — touching the death of her daughter, Windy,

three years of age. Maryland Code (1971 Repl. Vol.,

54a

1975 Cum. Supp.) Art. 27, §35A(a).! The Court of

Special Appeals of Maryland reversed, but the Court of

Appeals affirmed.?

While fully recognizing the lettered study and

explication of both the statute and the evidence by the

Maryland Judges as well as by the District Judge, we

are forced to the view that the conviction is void for

denial of Fourteenth Amendment due process. This is

because the “conviction [is] based on a record lacking

any relevant evidence as to a crucial element of the

offense charged,” i.e., that the mother had knowledge of

the critical gravity of her daughter’s condition when

she deferred resort to medical advice for the little girl.

Vachon v. New Hampshire, 414 U.S. 478, 480 (1974).

True, she saw the multiple severe bruises (later

counted as 70) on the child, apparently caused by body °

blows, but the testimony indisputably establishes, and

the State conceded, that she was totally ignorant of

when or how they had been inflicted. Indeed, she had

been away from home the two or three days previous.

1 §35A. Causing abuse to child under eighteen.

(a) Penalty. — Any parent, adoptive parent or other

person who has the permanent or temporary care or

custody or responsibility for the supervision of a minor

child under the age of eighteen years who causes abuse

to such minor child shall be guilty of a felony and upon

conviction shall be sentenced to not more than fifteen

years in the penitentiary. (Accent added.)

* * * * *

(b) 7. “Abuse” shall mean any: (A) physical injury or

injuries sustained by a child as a result of cruel or

inhumane treatment or as a result of malicious act or

acts by any parent, adoptive parent or other person who

has the permanent or temporary care or custody or

responsibility for supervision of a minor child (B) any

sexual abuse of a child, whether physical injuries are

sustained or not. (Accent added.)

* * * + + *

2 276 Md. 416 (1975); 24 Md. App. 708; certiorari denied 425

U.S. 942 (1976).

ae Re ee ee Pee

55a

Furthermore, mother and daughter loved each other

deeply, and the mother set about at once to learn of the

child’s ailments and to give relief. The narration, in a

moment, of the evidence will not reveal a modicum of it

as manifesting to the mother the precarious state of

Windy’s life. Only after watching her for almost eight

hours, and then with the assistance of a woman

neighbor, did the two of them realize the child’s peril. It

was then they sought medical advice, but the child died

in the ambulance en route to the hospital about one-half

hour later.

Appellant, Virginia Fabritz, was indicted in two

counts, child abuse and assault and battery. At trial

acquittal was ordered on the latter for absence of proof,

but the jury found her guilty of child abuse.

The evidence follows. Fabritz resided with her

daughter, Windy, in the home of Thomas L. Crockett

and his wife, Ann. The child was three years old when,

on October 1, 1973, she was left with the Crocketts

while her mother went to her grandfather’s funeral in

another county. She did not again see Windy until her

return at 1:00 o’clock on the afternoon of October 3rd.

She was met by Crockett with his motorcycle and with

Windy riding in the side car. To the mother the child

looked unwell. Crockett attributed this appearance to

the bumpiness of the motorcycle ride.

On arrival home about 2:30 that afternoon, Windy

began to suffer with cramps and to her mother seemed

feverish with the flu. At this time she noted the bruises

on her body. After bathing her, Fabritz put her to bed or

on a couch. Soon afterwards, Windy was seen to have

gotten up and curled herself in a blanket on the floor.

At 5:00 the child was semi-conscious and improved

sitting up for a brief interval after receiving some liquid

nourishment. Near 6:00 that afternoon, Windy vomited

and showed she was not feeling well. At 7:00 she was

put back to bed. Believing the child to have a

temperature, her mother sent for a thermometer. The

little girl was given soda to settle her stomach, as well

56a

as more liquid nourishment, and placed in bed again

around 7:30 or 8:00.

Fabritz twice telephone Connie Schaeffer, a neighbor,

for assistance, telling her of the child’s flu and of her

worsening condition. On arrival Schaeffer, too, saw

that Windy had a fever. Asked about the bruises on

Windy, the mother replied, “Tommy hits hard”, They

bathed her in alcohol and put her to bed. At this point

the child appeared to Schaeffer to be half asleep,

neither moaning nor crying.

Schaeffer testified at trial that she did not know what

was the matter with Windy, and had left the Crockett

house without suggesting medical assistance. Further

testimony related that at this moment Ann Crockett

arrived home and discussed with Fabritz the procure-

ment of medical attention and Fabritz asked Ann to

keep an eye on Windy. The two concluded it was

necessary to seek help. Ann called the County Hospital,

and was advised by the doctor that the women should

bring the child to the hospital.

It was then that Ann, on entering the child’s

bedroom, perceived she was not breathing. Thereupon

she sought an ambulance while Fabritz applied mouth-

to-mouth resuscitation. The rescue ambulance took

Windy, accompanied by Ann, to the hospital. Mean-

while, Schaeffer saw Fabritz in a hysterical condition,

endeavored to calm her and drove her to the hospital,

where they were informed the child had been declared

dead on arrival at 10:35. In this state she told Schaeffer,

“It is my fault, I killed her’.

The medical opinion was that 18 to 24 hours before

death — during Fabritz’ absence from home — the child

had been struck in the abdomen by a blunt instrument,

possibly a fist, rupturing the duodenum and leading to

death from peritonitis. No evidence intimated that

' Fabritz had knowledge that the person in whose

custody Windy was left would abuse her.

BP A A EEE AEE

57a

At one juncture Fabritz remarked that she had not

taken Windy to the hospital because Fabritz “was too

ashamed of the bruises” on her body. On his trial

Crockett was acquitted of any connection with the

death. At her trial the prosecution conceded that

Fabritz had not struck the child.

The Maryland Court of Appeals’ conclusion was that

Fabritz’ “inaction amounted to child abuse”; that her

“failure to obtain medical attention” constituted “cruel

or inhumane treatment”; and that this treatment was a

cause of the child’s “physical injury”. In determining to

grant Fabritz habeas corpus, we accept the statute as

valid, as did the Court of Appeals of Maryland and the

District Court, and accept, too, their clear exposition of

the critical words of the law. The statute simply was

unconstitutionally applied.

Our conclusion does not affront the conclusion of the

Maryland Court, nor that of the District Court. The

three steps of the State Court’s reasoning do not

preclude a finding that the evidence is wholly wanting

in proof of an indispensable factor: that during the

three stages of the syllogism “Fabritz had knowledge

that she was risking the life of her child.” That is the

decisive issue here.

The evidence is utterly bare of proof of a conscious-

ness of criminality during her bedside vigil. Cf.

Morissette v. United States, 342 U.S. 246, 270-271 (1952).

This may have been an error of judgment, however

dreadfully dear, but there was no awareness of

wrongdoing on her part. The jury’s contrary verdict on

that question finds no warrant in the testimony.

Fabritz’ error amounted to a failure to procure medical

attention in less than eight hours after her arrival at

home. Without expert medical knowledge to place her

on notice of the fatal nature of the child’s i’’ness, she

treated her as best she knew. The misjudgment was

only to the significance of the symptoms and of the

immediacy of demand for professional care. In these

circumstances the conviction cannot stand — without

even so much as a murmur Of evidential justification.

58a

As the Court said in Thompson v. Louisville, 362 U.S.

199 (1960):

“The ultimate question presented to us is whether

the charges against petitioner were so totally

devoid of evidentiary support as to render his

conviction unconstitutional under the Due Process

Clause of the Fourteenth Amendment. Decision of

this question turns not on the sufficiency of thr

evidence, but on whether this conviction rests upon

any evidence at all.” At 199.

* * * * * *

“[S]o is it a violation of due process to convict and

punish a man without evidence of his guilt.”

(footnote omitted) At 206.

It would be a radical overthrow of the universal

understanding of motherly devotion, as well as the

confidence gained by experience to be accorded the

judgment of two women having the responsibility of a

sick 3-year old, to hold the conduct of the mother or of

her friend suspect. Especially is this true when it is

remembered that although the child would have

survived “had an operation been performed within at

least twelve hours prior to death,” Fabritz had not even

then returned from her grandfather’s funeral. The

callings of nursing and baby-sitting ought not impose

so frightening a trusteeship.

The judgment on appeal will be vacated and the case

remanded to the District Court to grant the writ.

Vacated with Directions.

HAYNSWORTH, Chief Judge, dissenting:

I have a great deal of sympathy for this young

woman who has spent a time in prison on a conviction

of child abuse arising out of the death of her three-year

old daughter, though generally the mother had been a

loving and considerate one. My sympathy for the

mother is enhanced by the fact that the person who

inflicted the fatal injury upon the child has remained

\—

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59a

unpunished. I think, however, that the proof at trial did

not permit a conclusion on our part thai there was no

evidence to support a finding of a violation of the

statute by the mother.

Of course, a parent should not go prison for an

erroneous diagnosis of a child’s illness, but the Court of

Appeals of Maryland has clearly held that the statute is

violated if a custodian of a child knowingly withholds

medical assistance and if the child’s condition is—

aggravated or if death ensues as a result of want of

medical attention. !

Indeed, Maryland has long embraced the common

law doctrine that one who, through gross negligence,

fails to perform a legal duty owing to another as a

result of which the other dies is guilty of involuntary

manslaughter. See Palmer v, State, 223 Md. 341, 164

A.2d 467 (1960); Craig v. State, 220 Md. 591,155 A.2d

684 (1954).

There can be no doubt here that the multiple bruises

were not symptomatic of influenza. When the neighbor

saw the child, she was moaning in pain. That and her

comatose condition should have signalled a more

serious condition than the flu. That the mother

recognized that there may have been internal injuries is

supported by the testimony that she explained the

child’s bruised condition to the neighbor by saying,

“Tommy hits hard.”

One may suppose that this three-year old child had

told her mother who had beaten her, and the record

clearly indicates that Tommy Crockett was the lover of

both of the women who shared the house with him.

Thus, she explained to the neighbor that she had not

sought a physician’s help because she was ashamed of

the bruised condition of the child’s body and that if the

' We are not met with the special problem which might be

presented if the parent were a Christian Scientist or if the

yn was one of a kind that ought to be left to parental

i on.

60a

child were seen by a physician she would have to

explain the origin of the bruises.

I put no great weight on her exclamation after being

informed that the child was dead, “I killed her,” but her

statements to the neighbor before the child was dead of

her reasons for not having sooner sought medical help

furnished support for a finding that for some hours the

mother consciously refrained from seeking medical help

to protect Crockett from possible criminal charges and

support her own ego. Though the mother was generally

loving and protective of her daughter, a conscious

indulgence of such a preference is in violation of

Maryland’s Child Abuse Law when earlier medical

attention might have saved the child’s life.

I cannot agree that this conviction was devoid of

evidentiary support.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.