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Melissa
Vera NORRIS
Classification: Homicide
Characteristics:
Exorcism attempt
Number of victims: 1
Date of murder:
April 11, 1976
Date of arrest:
Next day
Date of birth: ???
Victim profile: Demiko Lee
Norris, three months old (her son)
Method of murder:
Acting as though
she believed her child had been possessed by Satan poked, beat,
and shook the child to death
Location: Gaithersburg,
Montgomery County, Maryland,
USA
Status: Found not guilty on grounds of temporary insanity on
September 14, 1976. Judge John J.
Mitchell then ruled that Norris was sane at the time of the trial
and therefore could not be sent to a mental institution. She was
freed
The Norris
murder
On Monday, April
11, 1976, at the home of 28-year-old Joyce Pope of 7348 Damascus
Road, Gaithersburg, Maryland, Melissa Vera Norris killed her
three-month-old son Demiko Lee Norris by beating the child to
death during an exorcism attempt.
Pope testified
that Norris began referring to the baby as if it were Satan before
shaking the child and pounding the infant on its chest, stomach
and area below the stomach until the child died.
At Norris'
September 14, 1976 trial, the judge, prosecutor, and defense
attorney all agreed that Melissa Norris was insane at the time of
the exorcism, which meant she could not be convicted of murder.
Incredibly, Judge John J. Mitchell then ruled that Norris was sane
at the time of the trial and therefore could not be sent to a
mental institution. She was freed.
Strangemad.com
The Story
Following a Friday evening
service at the Christian Tabernacle Church, the appellant, Joyce
Lillian Pope, agreed to permit Melissa Norris and her 3-month-old
child, Demiko, to stay at appellant's home. During that evening
and the following morning appellant assisted Melissa with the
child by assuming some of the maternal functions such as preparing
its bed (in a dresser drawer), changing the child and feeding him.
Melissa's conduct that evening
and the following day sporadically indicated some sort of mental
distress. She would at times seem caught up in a religious frenzy
with a wild look about her, trying to preach and declaring that
she was God. She would as quickly resume her normal self without
ever seeming to notice her personality transitions. This changing
back and forth continued throughout the following day, Saturday,
even during a "shower" party that evening attended by the mother,
the child and the appellant. Because of this strange conduct,
appellant admitted some concern for the child's safety and watched
it "like it was [her] own", prevailing upon Melissa to let the
child sleep in a dresser drawer, rather than in bed with the
mother, as Melissa had suggested, because she feared the mother
might roll over on the child during the night.
The following morning
Melissa's episodes of "changing to God" became more and more
pronounced. She stomped and gestured as she strode back and forth,
putting crosses on doors and demanding the departure of the evil
which she claimed to see. She kicked and banged at the door of
appellant's son, and fearful that by breaking in Melissa would
frighten him, appellant unfastened the door to permit entry.
Loudly exhorting Satan to leave the premises, Melissa "annointed"
appellant's son with oil, placing some of the oil in this child's
mouth. She subsequently repeated the process with appellant's
daughter. When dressed, appellant's children left the house
expeditiously, lingering only long enough to embrace their mother.
Melissa's changing process
continued. Finally, while still appearing to be herself, she
prepared a water tub to bathe the baby. Then, from her suddenly
changed voice and appearance, appellant knew Melissa had changed
again to "God". Calling out that Satan had hidden in the body of
her son, Melissa began to verbally exorcise that spirit and
physically abuse the child by punching and poking him repeatedly
about the stomach, chest and privates. After she undressed the
child, that which ensued was hardly describable. In her religious
frenzy of apparent exorcism, Melissa poked the child's vitals and
beat the child about the head. She reached her fingers down its
throat, wiping mucus and blood on diapers at hand, and even lifted
the child by inserting her hands in its mouth, and shook him like
a rag.
Appellant, Joyce Lillian Pope,
watched but did nothing else during this entire episode. She
neither participated in the abuse nor tried to prevent it. Whether
from fear or fervor, her abstinent conduct manifested total
indifference. Her testimony sought to indicate that her passivity
was motivated by fear but other evidence belied that inference.
Her sister, Angela, came to the door as Melissa's frenzy
diminished, and was let in by appellant who tried to tell Angela
what had happened — but couldn't. Appellant, on advice from
Angela, locked the door so that Angela's children would stay in
the yard with appellant's.4 Angela wrapped the dead or dying child
in a towel, held the comatose body over her head and prayed.
Although the record is not clear as to when, sometime during or
soon after its ordeal, the child mercifully expired.
The three adults (appellant,
her sister and Melissa) left with the child, destined ultimately
for the church located in the District of Columbia. Angela drove
to the home of Melissa's grandfather, with whom Melissa had lived.
According to the grandfather both appellant and Melissa were in a
religious frenzy.
"Q Who was saying that they
were Jesus Christ at this point?
A Melissa and Joyce Pope.
Q All right. And what
happened then?
A They just carried on and
carried on. So Joyce — I mean Joyce kept telling me there was a
dead baby in the car, and for me to go and open his eyes and
look at him, his heart was like a stone.
Q Did you do that?
A No, sir. By the way they
was carrying on, I didn't believe that they knew what they was
talking about.
Q What happened then?
A Well, after I didn't go,
Joyce went to the car and got the baby —
Q What car was this? Was
this the car they had come in?
A That is the car they came
in.
Q What happened then?
A She brought the baby back
to me and tried to give it to me, and told me to look at it, it
was dead; its heart was like a stone. I still didn't take the
baby."
After leaving that scene, the
trio arrived at a nursing home where they picked up another member
of the congregation of the Christian Tabernacle telling her that
"God has a job for you to do." They continued on to the church
passing in their journey two or three hospitals and several rescue
squads and police stations.
At the church the child was
given to, or taken by, the Reverend Leon Hart who gave him to
Mother Dorothy King for her prayers. Mother King discovered that
the child's body was cool and sent for ambulance assistance from
the firehouse across the street. Police and rescue personnel
arrived and determined that the child was dead.
The first police officer on
the scene saw appellant but did not address her. A detective from
the District of Columbia Homicide division arrived and interviewed
Melissa and appellant together.
"Q All right. What was it
that occurred between you and Melissa in Joyce's presence?
A What I did was I asked the
mother the pertinent facts about the baby. My questions usually
in an infant death are date of birth, what hospital, the term of
pregnancy, how long — if the baby was released from the hospital
at the same time as the mother, prenatal care, postnatal care,
when was the last time the baby was fed, was it burped, and
questions relevant to our medical examiner's inquiry.
Q All right. Did th-re [sic]
come a time when you asked her what if anything had happened to
the baby?
A Yes, sir.
Q And what was her response
to that?
A The mother stated that
sometime during the afternoon she was bathing the baby, the baby
suffered shortness of breath, but she didn't — she didn't take
too much concern, because it seemed to go away. And they dressed
the baby, and then while bringing it in the car, it lapsed into
an unconscious condition.
Q And then was there
anything further with reference to that, to what they did with
the baby?
A They took it to a nursing
home, I believe, and stopped by and talked to a woman there, who
in turn brought them to the church, accompanied them to the
church.
Q All right. Did you make
any inquiry further of Melissa Norris with reference to any
potential injuries to the baby?
A Yes. I asked, one of my
questions was, did the baby ever fall? She replied no. I said,
`Did you ever strike the baby, hit the baby, cause any injuries
to the baby?'
Q What was her response to
that?
A No.
Q What was Joyce Pope's
response, if any, to this series of questions to Melissa Norris?
A None.
Q Did there come a time when
you spoke with Joyce Pope?
A Yes, I did.
Q What were the conditions
under which you spoke to Joyce Pope?
A The same conditions. I
just sat at the desk when she was across the room, in
everybody's company.
Q Who was there at the time?
A Melissa, myself, and I
believe the reverend. Like I said, he kept walking in and out of
the room.
Q At that time, what was the
status of this case?
A At that time my
investigation showed that it probably was just a natural death.
Q Had anyone at all been
placed in custody at that point?
A No, sir.
Q Was anyone in any way
under arrest or restrained in any fashion?
A No, sir.
Q Did you advise anyone,
specifically Joyce Pope, did you advise Joyce Pope of her rights
in any fashion?
A No, sir.
Q At that juncture, how were
you viewing Joyce Pope? What was your — why was it you were
going to ask her some questions?
A She was the roommate of
Melissa.
Q All right. Did there come
a time when you did ask her some questions?
A Yes.
Q And what information did
she give you?
MR. LOHM: Objection.
THE COURT: I will overrule
it.
THE WITNESS: It was with
regards to feeding, and —
MR. LOHM: I didn't
understand.
THE WITNESS: In regard to
feeding the baby, and I asked — she related she had fed the baby
sometime around four o'clock, nothing unusual, and then again
sometime around 8 —
THE COURT: This is 4:00
a.m.?
THE WITNESS: 4:00 a.m. in
the morning, and sometime again around 8:00 or 9:00 in the
morning.
BY MR. BECK:
Q Did she give you any
further information at all?
A None, sir.
Q Did you have any further
conversation with Melissa Norris?
A Yes. I explained to her
that an autopsy would be performed, and where the body was
going, and the arrangements she was to make with the funeral
home in regards to picking the baby up and burying it.
Q Throughout the course of
this period of time, other than the statements with reference to
feeding, did Joyce Pope give you any information with reference
to your investigation?
A No, sir."
The following day the
Montgomery County police began their investigation and appellant
was brought to the station. At that interview, for the first time,
appellant disclosed what had happened.
In this
case, Melissa Vera Norris escaped the responsibility for her
conduct, having been determined insane at the time of the
commission of the crime. We were informed at argument that she has
since been released as sane and has given birth to another child.
Pope v.
State 38 Md. App. 520 (1978)
Court of
Appeals of Maryland
Pope v. Maryland
Joyce Lillian Pope
v.
State of Maryland
January 19, 1979
Certiorari to the Court of Special Appeals.
Circuit Court for Montgomery County, Fairbanks, J.
Murphy, C. J., and Smith, Digges, Eldridge,
Orth and Cole, JJ. Orth, J., delivered the opinion of the Court.
Eldridge, J., filed an opinion concurring in part and dissenting
in part at page 354 infra
counts of a nine count indictment, no. 18666.
The 3rd count charged child abuse, presenting that "on or about
April 11, 1976, . . . while having the temporary care, custody and
responsibility for the supervision of Demiko Lee Norris, a minor
child under the age of eighteen years [she] did unlawfully and
feloniously cause abuse of said minor child in violation of
Article 27, Section 35A of the Annotated Code of Maryland. . . ."
The 5th count charged misprision of felony under the common law,
alleging that on the same date she "did unlawfully and wilfully
conceal and fail to disclose a felony to wit: the murder of Demiko
Lee Norris committed by Melissa Vera Norris on April 11, 1976,
having actual knowledge of the commission of the felony and the
identity of the felon, with the intent to obstruct and hinder the
due course of justice and to cause the felon to escape unpunished.
. . ."
On direct appeal the Court of Special Appeals
reversed the judgment entered on the child abuse conviction and
affirmed the judgment entered on the misprision of felony
conviction. Pope v. State,
38 Md. App. 520, 382 A.2d 880
(1978). We granted Pope's petition and the State's cross-petition
for a writ of certiorari. We affirm the judgment of the Court of
Special Appeals with respect to the 3rd count, child abuse. We
reverse the judgment of the Court of Special Appeals with
respect to the 5th count,
misprision of felony. We remand to that court with direction to
remand to the Circuit Court for Montgomery County for the entry of
a judgment of acquittal on the third count and dismissal of the
fifth count.
ISSUES FOR DECISION
I. The sufficiency of the evidence to sustain
the conviction of Pope of the crime of child abuse as (1) a
principal in the first degree, or (2) a principal in the second
degree.
II. The status in Maryland of the crime of
misprision of felony.
THE EVIDENCE
The evidence adduced at the trial established
that Demiko Lee Norris, three months old, died as a result of
physical injuries inflicted by his mother, Melissa Vera Norris.
The abuse by the mother occurred over a period of several hours on
a Sunday morning at Pope's home and in Pope's presence. Pope's
involvement in the events leading to the child's abuse and death
began on the preceding Friday evening when she and Melissa, with
the child, were driven home by Pope's sister, Angela Lancaster,
from a service held at the Christian Tabernacle Church. When they
arrived at Melissa's grandparents' home, where Melissa was living,
Melissa refused to enter the house, claiming that it was on fire,
although in fact it was not. During the evening, Melissa had
sporadically indicated mental distress. "She would at times seem
caught up in a religious frenzy with a wild look about
her, trying to preach and declaring that she
was God. She would as quickly resume her normal self without ever
seeming to notice her personality transitions." Pope, 38 Md. App.
at 531. Pope agreed to take Melissa and the child into her home
for the night because she did not want to put them "out on the
street," and Angela would not let them stay in her home. Melissa
had no money and Pope and Angela bought food and diapers for the
baby. That evening Pope cleaned and dried the baby and inquired of
Melissa about a bad rash he had. Melissa slept in Pope's bedroom.
Pope kept the baby with her in the living room, telling Melissa:
"[Y]ou can go to sleep . . . I'll be up, I'll just stay up, I'll
watch the baby. . . ." She explained in her testimony: "And I
don't know why it was just, just a funny feeling that I had, you
know, and ever since the baby was there I just kept it close to me
for some reason." Pope fed the baby and fixed a bed for it in a
dresser drawer. She stayed with the baby to care for him during
the night because he was spitting up. She could not sleep while
Melissa was there.
The next morning, awakened by the crying of the
child, Pope fed him. Throughout the day Melissa "changed back and
forth." When Melissa was "herself" she took care of her child.
When Melissa thought she was God, Pope undertook the maternal
duties. Pope watched the child "like it was my own," because "I
felt maybe [Melissa] could [hurt the child] when she confessed she
was God. . . . I felt close to the baby, maybe because, you know,
I felt I haven't had a baby for so long, you know, I enjoyed
taking care of the baby and watching it." At a baby shower
Saturday evening at the home of Pope's mother, Melissa again
reverted to being God, looking wild, speaking loudly, preaching
and giving orders. Melissa and the baby returned to Pope's home.
Melissa put the child in bed with her, but Pope thought it better
that the child not remain there. She was afraid Melissa would roll
over and "smother it to death." She told Melissa: "I'll just take
the baby in [the living room] . . . I'll watch it, I'll get up and
feed it . . . I don't mind." The next morning, Sunday, at about
4:30 o'clock, Pope prepared the baby's bottle and fed him. When
Melissa got up, Pope suggested that she go back to bed. Melissa
behaved
normally for awhile. Then her "episodes of
'changing to God' became more pronounced. She stomped and gestured
as she strode back and forth, putting crosses on doors and
demanding the departure of the evil which she claimed to see. She
kicked and banged at the door of [Pope's] son, and fearful that by
breaking in Melissa would frighten him, [Pope] unfastened the door
to permit entry. Loudly exhorting Satan to leave the premises,
Melissa 'anointed' [Pope's] son with oil, placing some of the oil
in the child's mouth. She subsequently repeated the process with
[Pope's] daughter. When dressed, [Pope's] children left the house
expeditiously, lingering only long enough to embrace their
mother." Pope, 38 Md. App. at 531.
During a lucid period, Melissa prepared to go
to church. She got a tub of water to bathe the baby. What next
occurred is graphically described in the opinion of the Court of
Special Appeals:
"Then, from her suddenly changed voice and
appearance, [Pope] knew Melissa had changed again to 'God.'
Calling out that Satan had hidden in the body of her son, Melissa
began to verbally exorcise that spirit and physically abuse the
child by punching and poking him repeatedly about the stomach,
chest and privates. After she undressed the child, that which
ensued was hardly describable. In her religious frenzy of apparent
exorcism, Melissa poked the child's vitals and beat the child
about the head. She reached her fingers down its throat, wiping
mucus and blood on diapers at hand, and even lifted the child by
inserting her hands in its mouth, and shook him like a rag." Id.
Continuing to talk and stomp, Melissa began to
squeeze the baby. Then, holding the child by the neck with one
hand, she took him into the bathroom, acting like she did not know
that Pope was present. When she first started this abuse, Melissa,
in her "God voice," called Pope and asked her: "Didn't I give you
eyes to see?" Pope noticed that Melissa's finger nails were "real
long," and she said to Melissa: "[H]ow do you
handle a baby with such long nails," but Pope
did nothing. She admitted that she knew at some point that Melissa
was hurting the baby and was "fearful, amazed and shocked at the
'unbelievable' and 'horrible' thing that was happening."
Melissa's frenzy diminished. Angela came to the
house to take them to church. Pope did not tell Angela what
happened -- "I could not get it out." Angela asked her what was
wrong, and Pope said: "[I]t's Melissa, the baby. . . ." She locked
the door at Angela's direction so Angela's children would stay in
the yard with Pope's children. Angela wrapped the child in a
towel, raised him over her head and prayed.
Pope, Melissa and Angela left with the child to
go to church. At Melissa's request they stopped by her
grandfather's house, arriving about 2:00 p.m. Pope told him the
child was dead, but he did not believe her because all three were
acting so strangely. He refused to take or look at the baby. The
three women with the child went to Bel Pre Health Center, picked
up another member of the Christian Tabernacle congregation,
telling her that "God has a job for you to do," and proceeded to
the church. En route, they passed several hospitals, police
stations and rescue squads. At the church, the child was given to,
or taken by the Reverend Leon Hart, who handed him to Mother
Dorothy King for her prayers. She discovered that the baby's body
was cool and sent for ambulance assistance. Police and rescue
personnel arrived and determined that the child was dead. There
was expert medical testimony that the child had died sometime
during the period of fifteen minutes to several hours after it was
injured. The medical expert expressed no opinion as to whether the
child could have been successfully treated if the injury had been
reported sooner.
The police questioned Melissa in Pope's
presence. Pope did not contradict Melissa's denial of abusing the
child. In fact, Pope, in response to inquiry by the police, said
that the baby did not fall, and told them that she had not seen
Melissa strike the baby. She explained this untruth in subsequent
statements to the police: "[I]t was her body in the flesh, but it
wasn't her, because it was something else."
Pope, Melissa and Angela attended the evening
service at the church. Melissa reverted to God during the service
and
Reverend Hart restrained her and attempted to
convince her that she was not Jesus Christ. Melissa refused to go
to her grandfather's home and returned home with Pope. The next
morning Pope was again interviewed at the police station and wrote
a full explanation of what had happened. She later made an oral
statement which was recorded.
I
THE CRIME OF CHILD ABUSE
The Statute
The General Assembly first evidenced its
concern with the mistreatment of children fifteen years ago when
it added ? 11A to Art. 27 of the Maryland Code, later codified as
? 35A of that article, declaring an assault on a child to be a
felony. The statute in its entirety provided:
"Any parent, adoptive parent or other person
who has the permanent or temporary care or custody of a minor
child under the age of fourteen years who maliciously beats,
strikes, or otherwise mistreats such minor child to such degree as
to require medical treatment for such child shall be guilty of a
felony, and upon conviction shall be sentenced to not more than
fifteen years in the Penitentiary."
The Legislature's increasing interest in child
abuse is reflected in the amendment from time to time of the
seminal statute. The result is a comprehensive scheme to fulfill
the legislative intent and purpose, expressed in 1973, as "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." Md. Code (1957,
1976 Repl. Vol.) Art. 27, ? 35A. All of these were, of course,
imposed over the felonious crime of child abuse. See subsections
(a) through (j).
The Nature of Child Abuse
As we have seen, when the crime was first
created by the General Assembly it comprised the malicious
beating, striking or otherwise mistreating a child to such degree
as to require medical treatment. We pointed out in State v.
Fabritz, 276 Md. 416, 348 A.2d 275 (1975), cert.
denied, 425 U.S. 942 (1976), that by the terms of the
enactment it did not reach acts "not constituting, in one form or
another, an assault on a child." Id. at 423. Acts 1973, ch. 835
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. The 1973 amendment added a
definition subsection to ? 35A. Subsection (b) 7 provided that
whenever "abuse" was used in ? 35A, it 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. . . ."
Acts 1974, ch. 554 designated this meaning as item (A) of para. 7
and expanded the definition of child abuse by adding item (B) so
as to include in the offense "any sexual abuse of a child, whether
physical injuries are sustained or not." The amendment also added
para. 8 defining " sexual abuse" to 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. . . ." Acts 1977, ch. 290,
substituted "or sexual offense in any degree" for "carnal
knowledge" in para. 8.
We considered the scope of item A, subsection
(b) 7 in Fabritz. Applying the rules of statutory construction,
276 Md.
at 421-423, we thought "it evident that the
Legislature plainly intended to broaden the area of proscribed
conduct punishable in child abuse cases." Id. at 423-424. We said:
"Its use in the amended version of ? 35A of the
comprehensive phraseology 'who causes abuse to' a 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.'" Id. at 424.
We found that the failure of the mother to seek
or obtain any medical assistance for her child, although the need
therefor was obviously compelling and urgent, caused the child to
sustain bodily injury additional to and beyond that inflicted upon
the child by reason of the original assault by another. The act of
omission by the mother "constituted a cause of the further
progression and worsening of the injuries which led to [the
child's] death; and that in these circumstances [the mother's]
treatment of [the child] was 'cruel or inhumane' within the
meaning of the statute and as those terms are commonly
understood." Id. at 425-426. We therefore vacated the judgment of
the Court of Special Appeals, which in Fabritz v. State,
24 Md. App. 708, 332 A.2d 324
(1975), had
reversed the judgment of the trial court
entered upon the conviction of the mother of child abuse.
Responsibility for Abuse of a Child
In Fabritz we went no farther than to determine
that the Legislature intended that the "cause" of an injury may
include an act of omission so as to constitute cruel or inhumane
treatment, in that case the failure of the mother to seek or
obtain medical assistance for her child who had been abused by
another. Fabritz did not go to the class of persons to whom the
statutory proscription applies, as the accused there was a
"parent," the victim's mother, expressly designated in the
statute.
We have seen that the statute as originally
enacted concerned "[a]ny parent, adoptive parent or other person,
who has the permanent or temporary care or custody of a minor
child. . . ." Acts 1963, ch. 743. This has been once amended to
bring within the ambit of the statute any person who has
"responsibility for the supervision of a minor child." Acts 1966,
ch. 221. Thus, since 1 June 1966,
"[a]ny 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. . . ." ? 35A (a).
Persons subject to the statute are designated
in those terms also in subsection (b) 7 (A) defining abuse and in
subsection (b) 8 defining sexual abuse.
In Bowers v. State, 283 Md. 115, 389
A.2d 341 (1978), we discussed the class of persons to whom ?
35A applies, in rejecting the contention that the statute was
vague and therefore constitutionally defective for the reason that
it failed to define adequately that class. Bowers urged that the
statute was too indefinite to inform a person who is not a parent
or adoptive parent of a child whether he comes within the ambit of
the statute. He argued that no one in such position is capable of
ascertaining whether the statute is aimed only at persons who have
been awarded custody by judicial decree or includes also those who
may simply be caring for a child in place of the parent. We were
of the view that the General Assembly intended that the statute
apply to persons who stand in loco parentis to a child. We said:
"Had the Legislature wished to narrow application of the child
abuse law to those who had been awarded custody or control by
court order, it could readily have done so in explicit language to
that end." Id. at 130. We observed that Bowers' "own testimony
amply established that he had assumed 'the care or
custody or responsibility for the supervision'
of his stepdaughter, and thus stood in loco parentis with respect
to her." Id.
Bowers' challenge centered on the "temporary
care or custody" provision of the statute. It does not follow from
our holding that "permanent or temporary care or custody" is
synonymous with "responsibility for the supervision of." Such was
clearly not the legislative intent, because, as we have seen, the
latter provision was added by amendment three years after the
former had been written into the law. There would have been no
need to do so had the Legislature deemed the two provisions to
have the same meaning.
The child abuse statute speaks in terms of a
person who "has" responsibility for the supervision of a minor
child. It does not prescribe how such responsibility attaches or
what "responsibility" and "supervision" encompass. A doubt or
ambiguity exists as to the exact reach of the statute's provision
with respect to "has responsibility for the supervision of,"
justifying application of the principle that permits courts in
such circumstances to ascertain and give effect to the real
intention of the Legislature. See Fabritz at 423; Clerk v.
Chesapeake Beach Park, 251 Md. 657, 663-664, 248 A.2d
479 (1968); Domain v. Bosley, 242 Md. 1, 7, 217 A.2d
555 (1966). Bowers equates "permanent or temporary care or
custody" with "in loco parentis," but "responsibility for the
supervision of" is not bound by certain of the strictures required
for one to stand in place of or instead of the parent. A person in
loco parentis is "charged, factitiously, with a parent's rights,
duties, and responsibilities." Black's Law Dictionary (4th ed.
1951). "A person in loco parentis to a child is one who means to
put himself in the situation of the lawful father [or mother] of
the child with reference to the father's [or mother's] office and
duty of making provision for the child. Or, as defined by Sir Wm.
Grant, Master of the Rolls, a person in loco parentis is one,
'assuming the parental character and discharging parental duties.'
Weatherby v. Dixon, 19 Ves. 412. . . . There must be some
indication, in some form, of an intention to establish it. It is a
question of intention." Von der Horst v. Von der Horst,
88 Md. 127, 130-131,
41 A. 124 (1898).
"The term 'in loco parentis,' according to its
generally accepted common law meaning, refers to a person who has
put himself in the situation of a lawful parent by assuming the
obligations incident to the parental relation without going
through the formalities necessary to legal adoption. It embodies
the two ideas of assuming the parental status and discharging the
parental duties. Niewiadomski v. United States, 159 F. 2d 683,
686 (6th Cir.), cert. denied, 331 U.S. 850 (1947).
"This relationship involves more than a duty to
aid and assist, more than a feeling of kindness, affection or
generosity. It arises only when one is willing to assume all the
obligations and to receive all the benefits associated with one
standing as a natural parent to a child." Fuller v. Fuller, 247
A.2d 767 (D.C. 1968), appeal denied,
418 F. 2d 1189 (1969).
A person may have the responsibility for the
supervision of a minor child in the contemplation of ? 35A
although not standing in loco parentis to that child.
"Responsibility" in its common and generally accepted meaning
denotes "accountability," and "supervision" emphasizes broad
authority to oversee with the powers of direction and decision.
See American Heritage Dictionary of the English Language (1969);
Webster's Third New International Dictionary (1968). As in the
case of care or custody of a minor child under the child abuse
law, a judicial decree is not necessary to obtain responsibility
for the supervision of a minor child under that statute. Had the
Legislature wished to narrow application of that law to those who
had been charged with responsibility for the supervision of a
child by court order, it could readily have done so in explicit
language to that end. See Bowers, 283 Md. at 130. Absent a court
order or award by some appropriate proceeding pursuant to
statutory authority, we think it to be self-evident that
responsibility for supervision of a minor child may be obtained
only upon the mutual consent, expressed or implied, by the one
legally charged with the care of the child and by the one assuming
the responsibility. In other words, a parent may not impose
responsibility for the supervision of his or
her minor child on a third person unless that person accepts the
responsibility, and a third person may not assume such
responsibility unless the parent grants it. So it is that a baby
sitter temporarily has responsibility for the supervision of a
child; the parents grant the responsibility for the period they
are not at home, and the sitter accepts it. And it is by mutual
consent that a school teacher has responsibility for the
supervision of children in connection with his academic duties. On
the other hand, once responsibility for the supervision of a minor
child has been placed in a third person, it may be terminated
unilaterally by a parent by resuming responsibility, expressly or
by conduct. The consent of the third party in such circumstances
is not required; he may not prevent return of responsibility to
the parent. But, of course, the third person in whom
responsibility has been placed is not free to relinquish that
responsibility without the knowledge of the parent. For example, a
sitter may not simply walk away in the absence of the parents and
leave the children to their own devices.
Under the present state of our law, a person
has no legal obligation to care for or look after the welfare of a
stranger, adult or child.
"Generally one has no legal duty to aid another
person in peril, even when that aid can be rendered without danger
or inconvenience to himself. . . . A moral duty to take
affirmative action is not enough to impose a legal duty to do so."
W. LaFave & A. Scott, Criminal Law 183 (1972).
See Clark & Marshall, A Treatise on the Law of
Crimes ? 10.02 (7th ed. 1967). The legal position is that "the
need of one and the opportunity of another to be of assistance are
not alone sufficient to give rise to a legal duty to take positive
action." R. Perkins, Criminal Law 594-595 (2d ed. 1969).
Ordinarily, a person may stand by with impunity and watch another
being murdered, raped, robbed, assaulted or otherwise unlawfully
harmed. "He need not shout a warning to a blind man headed for a
precipice or to an absentminded one walking into a gunpowder room
with a lighted candle in
hand. He need not pull a neighbor's baby out of
a pool of water or rescue an unconscious person stretched across
the railroad tracks, though the baby is drowning, or the whistle
of an approaching train is heard in the distance." LaFave & Scott
at 183. The General Assembly has enacted two "Good Samaritan"
statutes which afford protection to one who assists another in
certain circumstances. Those statutes, however, impose no
requirement that assistance be rendered.
In the face of this status of the law we cannot
reasonably conclude that the Legislature, in bringing a person
responsible for the supervision of a child within the ambit of the
child abuse law, intended that such responsibility attach without
the consent criteria we have set out. Were it otherwise, the
consequences would go far beyond the legislative intent. For
example, a person taking a lost child into his home to attempt to
find its parents could be said to be responsible for that child's
supervision. Or a person who allows his neighbor's children to
play in his yard, keeping a watchful eye on their activities to
prevent them from falling into harm, could be held responsible for
the children's supervision. Or a person performing functions of a
maternal nature from concern for the welfare, comfort or health of
a child, or protecting it from danger because of a sense of moral
obligation, may come within the reach of the act. In none of these
situations would there be an intent to grant or assume the
responsibility contemplated by the child abuse statute, and it
would be incongruous indeed to subject such persons to possible
criminal prosecution.
{PA}
Page 326} The Sufficiency of the Evidence
The trial court found Pope guilty of the crime
of child abuse as a principal in the first degree, and
alternatively, as a principal in the second degree. A principal in
the first degree is the one who actually commits a crime, either
by his own hand, or by an inanimate agency, or by an innocent
human agent. A principal in the second degree is one who is
actually or constructively present when a felony is committed, and
who aids or abets in its commission. See Camphor v. State, 233
Md. 203, 205, 196 A.2d 75 (1963); Thornton v. State,
232 Md. 542, 544, 194 A.2d 617 (1963); Veney v. State,
225 Md. 237, 238, 170 A.2d 171 (1961); Agresti v.
State,
2 Md. App. 278, 280, 234 A.2d 284
(1967); 4 W. Blackstone, Commentaries *34; Clark & Marshall, A
Treatise on the Law of Crimes ?? 8.01-8.02 (7th ed. 1967); L.
Hochheimer, Crimes and Criminal Procedure ?? 31-32 (1st ed. 1897);
R., Perkins, Criminal Law 656 and 658 (2d ed. 1969).
In convicting Pope, the trial court was
"satisfied beyond a reasonable doubt that under the doctrine of [
Fabritz ] . . ., [she] is a principal [in the first degree] and is
guilty of child abuse." It further held, however: "If this
interpretation of Fabritz is in error, then [Pope] is guilty as a
principal in the second degree." On direct appeal, the Court of
Special
Appeals applied Maryland Rule 1086 and set
aside the judgment. The rule provides that when a criminal case is
tried without the intervention of a jury, the Court of Special
Appeals shall review both the law and the evidence but "the
judgment of the [trial] court will not be set aside on the
evidence unless clearly erroneous and due regard will be given to
the opportunity of the [trial] court to judge the credibility of
the witnesses." The appellate court's function "is merely to
decide whether there was sufficient evidence, or proper inferences
from the evidence, from which the trier of fact could properly
draw the conclusion of the [accused's] guilt, beyond a reasonable
doubt." Brooks v. State, 277 Md. 155, 161-162, 353 A.2d
217 (1976), and cases therein cited. The trial court, as the
trier of facts, is not only the judge of the witness's
credibility, but is also the judge of the weight to be attached to
the evidence. Id. The Court of Special Appeals determined that the
evidence was not legally sufficient to sustain the conviction of
Pope either as a principal in the first degree or a principal in
the second degree. The evidence was deficient with regard to her
being a principal in the first degree in that it was not
sufficient for the trier of fact to find beyond a reasonable doubt
that she was within the class of persons subject to the
prohibitions of the child abuse statute. Thus, the teaching of
Fabritz regarding "causing abuse" was in no event applicable. Pope
v. State, 38 Md. App. at 538. It was deficient with regard to her
being a principal in the second degree because, despite her
presence during the commission of the felony, it was not
sufficient for the trier of fact to conclude that she aided and
abetted the actual perpetrator. Therefore, the judgment of the
trial court on the evidence was clearly erroneous and had to be
set aside. Id. at 539-541.
As did the Court of Special Appeals, we find
evidentiary insufficiency with respect to the conviction of Pope
of child abuse, both as a principal in the first degree and as a
principal in the second degree, so that the judgment of the trial
court on the evidence was clearly erroneous. We, therefore, affirm
the judgment of the Court of Special Appeals. We explain why we
find that the evidence was legally insufficient.
{PA}
Page 328} Principal in the First Degree
As we have indicated, a person may be convicted
of the felony of child abuse created by ? 35A as a principal in
the first degree upon evidence legally sufficient to establish
that the person
(1) was
(a) the parent of, or
(b) the adoptive parent of, or
(c) in loco parentis to, or
(d) responsible for the supervision of
a minor child under the age of eighteen years,
AND
(2) caused, by being in some manner accountable
for, by act of commission or omission, abuse to the child in the
form of
(a) physical injury or injuries sustained by
the child as the result of
i) cruel or inhumane treatment, or
ii) malicious act or acts by such person,
or
(b) any act or acts by such person involving
sexual molestation or exploitation whether or not physical
injuries were sustained.
Under the teaching of Fabritz, Pope's lack of
any attempt to prevent the numerous acts of abuse committed by the
mother over a relatively protracted period and her failure to seek
medical assistance for the child, although the need therefor was
obviously compelling and urgent, could constitute a cause for the
further progression and worsening of the injuries which led to the
child's death. In such circumstances, Pope's omissions constituted
in themselves cruel and inhumane treatment within the meaning of
the statute. See Fabritz, 276 Md. at 425-426. It follows that Pope
would be guilty of child abuse if her status brought her within
the class of persons specified by the statute. It being clear
that she was neither the child's parent nor
adoptive parent, and there being no evidence sufficient to support
a finding that she had "the permanent or temporary care or
custody" of the child as that status was construed in Bowers v.
State, supra, so as to be in loco parentis to the child, the sole
question is whether she had "responsibility for the supervision
of" the child in the circumstances. If she had such responsibility
the evidence was legally sufficient to find her guilty of child
abuse as a principal in the first degree.
The State would have us translate compassion
and concern, acts of kindness and care, performance of maternal
functions, and general help and aid with respect to the child into
responsibility for the supervision of the child. The crux of its
argument is that although Pope was not under any obligation to
assume responsibility for the supervision of the child at the
outset, "once she undertook to house, feed, and care for [the
mother and child], she did accept the responsibility and came
within the coverage of the statute." But the mother was always
present. Pope had no right to usurp the role of the mother even to
the extent of responsibility for the child's supervision. We are
in full accord with the view of the Court of Special Appeals that
it could not "in good conscience hold that a person who has taken
in a parent and child is given the responsibility for the child's
supervision and protection even while the child is in the very
arms of its mother." Pope, 38 Md. App. at 538. It would be most
incongruous that acts of hospitality and kindness, made out of
common decency and prompted by sincere concern for the well-being
of a mother and her child, subjected the Good Samaritan to
criminal prosecution for abusing the very child he sought to look
after. And it would be especially ironic were such criminal
prosecution to be predicated upon an obligation to take
affirmative action with regard to abuse of the
child by its mother, when such obligation arises solely from those
acts of hospitality and kindness.
The evidence does not show why Pope did not
intervene when the mother abused the child or why she did not, at
least, timely seek medical assistance, when it was obvious that
the child was seriously injured. Whether her lack of action was
from fear or religious fervor or some other reason is not clearly
indicated. As the Court of Special Appeals correctly stated
"[Pope's] testimony sought to indicate that her passivity was
motivated by fear but other evidence belied that inference." Pope,
38 Md. App. at 532. The court observed that when Pope's sister
arrived shortly after the acts of abuse and the mother's frenzy
had diminished, Pope did not tell her sister what had occurred,
although she claimed that she tried to but could not do so. But
Pope's conduct, during and after the acts of abuse, must be
evaluated with regard for the rule that although she may have had
a strong moral obligation to help the child, she was under no
legal obligation to do so unless she then had responsibility for
the supervision of the child as contemplated by the child abuse
statute. She may not be punished as a felon under our system of
justice for failing to fulfill a moral obligation, and the short
of it is that she was under no legal obligation. In the
circumstances, the mother's acquiescence in Pope's conduct was not
a grant of responsibility to Pope for the supervision of the
child, nor was Pope's conduct an acceptance of such
responsibility. "[Pope's] concern for the child [did] not convert
to legal responsibility nor parental prerogatives." Pope, 38 Md.
App. at 538. We hold that the evidence was not sufficient in law
to prove that Pope fell within that class of persons to whom the
child abuse statute applies. Thus it is that the judgment of the
trial court that she was a principal in the first degree in the
commission of the crime of child abuse was clearly erroneous and
must be set aside.
The mental or emotional state of the mother,
whereby at times she held herself out as God, does not change the
result. We see no basis in the statute for an interpretation that
a person "has" responsibility for the supervision of a child, if
that person believes or may have reason to
believe that a parent is not capable of caring for the child.
There is no right to make such a subjective judgment in order to
divest parents of their rights and obligations with respect to
their minor children, and therefore, no obligation to do so.
Principal in the Second Degree
Pope was actually present when the felony was
committed, but, we have determined, she was not a perpetrating
actor. She would be a principal in the second degree if she aided
or abetted in the commission of the crime. The principal in the
second degree differs from the principal in the first degree in
that he does not do the deed himself or through an innocent agent
but in some way participates in the commission of the felony by
aiding, commanding, counseling or encouraging the actual
perpetrator. R. Perkins, Criminal Law 658-659 (2d ed. 1969); Clark
& Marshall, A Treatise on the Law of Crimes ? 8.02 (7th ed. 1967).
Unless he contributed actual aid it is necessary that his approval
should be manifested by some word or act in such a way that it
operated on the mind of the perpetrator. Even the secret
acquiescence or approval of the bystander is not sufficient to
taint him with the guilt of the crime. "Counsel, command or
encouragement may be in the form of words or gestures. Such a
purpose 'may be manifested by acts, words, signs, motions, or any
conduct
which unmistakably evinces a design to
encourage, incite, or approve of the crime.' Promises or threats
are very effective for this purpose, but much less will meet the
legal requirement, as where a bystander merely emboldened the
perpetrator to kill the deceased. . . . One may also encourage a
crime by merely standing by for the purpose of giving aid to the
perpetrator if necessary, provided the latter is aware of this
purpose. Guilt or innocence of the abettor . . . is not determined
by the quantum of his advice or encouragement. If it is rendered
to induce another to commit the crime and actually has this
effect, no more is required." Perkins at 659. "To be guilty as a
principal in the second degree, a criminal intent is necessary."
Clark & Marshall ? 8.02. "Aid or encouragement to another who is
actually perpetrating a felony will not make the aider or
encourager guilty of the crime if it is rendered without mens rea.
It is without mens rea if the giver does not know or have reason
to know of the criminal intention of the other. . . . In general
it is the abettor's state of mind rather than the state of mind of
the perpetrator which determines the abettor's guilt or innocence.
. . . '[I]ntention' includes not only the purpose in mind but also
such results as are known to be substantially certain to follow."
Perkins at 662-663.
When the evidence here is viewed in the light
of these criteria, it is patent that it was not legally sufficient
to prove that Pope was a principal in the second degree. She
neither actually aided the mother in the acts of abuse nor did she
counsel, command or encourage her. The Court of Special Appeals
pointed out the facts relied on by the trial court -- that the
events took place in Pope's home, that Pope responded to the
commands of the mother, namely that she looked when told to look
and came when called, that she voluntarily opened the door to her
son's room so Melissa could reach him, and that she failed to
interfere or question the mother's activity, even when the mother
appeared rational -- were simply not enough to meet the test.
Pope, 38 Md. App. at 538-541.
The State concludes the argument in its brief:
"As is obvious from the evidence presented in
this
case, [Pope] witnessed a terrible event. She
stood by while Melissa Norris killed her three-month old son.
[Pope's] conduct during the beating . . . should be held to be
culpable."
The evidence certainly showed that Pope
"witnessed a terrible event" and that she "stood by" while the
mother killed the child. But the culpability for her conduct
during the abuse of the child must be determined strictly within
the law or else the basic tenets of our system of justice are
prostituted. There is an understandable feeling of outrage at what
occurred, intensified by the fact that the mother, who actually
beat the child to death, was held to be not responsible for her
criminal acts. But it is the law, not indignation, which governs.
The law requires that Pope's conviction of the felony of child
abuse be set aside as clearly erroneous due to evidentiary
insufficiency.
II
THE CRIME OF MISPRISION OF FELONY
As we have indicated, a person may be convicted
of a felony upon proof establishing that he committed the offense
as a perpetrating actor (principal in the first degree), or that,
being actually or constructively present, he did not himself
commit the offense but aided and abetted in the commission of it
(principal in the second degree). "'If he be present,' said Sir
Matthew Hale, 'and not aiding or abetting to the felony, he is
neither principal nor accessory. If A and B be fighting and C, a
man of full age, comes by chance, and is a looker on only, and
assists neither, he is not guilty of murder or homicide, as
principal in the second degree, but is a misprision, for which he
shall be fined, unless he use means to apprehend the felon.'" In
the case before us, both the
trial court and the Court of Special Appeals
believed that the misdemeanor of misprision of felony exists in
Maryland today. The Court of Special Appeals expressly held "that
misprision of felony was a crime at common law given life in
Maryland by Art. 5 of the Declaration of Rights. It rejected the
contention that the crime "has become obsolete or abandoned by
disuse" as "without merit." Pope, 38 Md. App. at 527.
There is no Maryland legislative enactment
which is declarative of the common law crime of misprision of
felony or which may be deemed to have created a comparable
offense. Therefore, if misprision of felony is a crime in this
State, it is only because it was part of the common law of England
to which the inhabitants of Maryland were constitutionally
entitled and has survived to the present time.
We assume, arguendo, that misprision of felony
was a crime under the common law of England, and that it became
the law of this State pursuant to Art. 5 of the Declaration of
Rights. The question is whether it is to be deemed an indictable
offense in Maryland today. In determining the question, we look
first to what misprision of felony is. According to Blackstone,
the crime at common law consisted merely in the "concealment of a
felony which a man knows, but never assented to; for if he
assented this makes him either principal or accessory." 4 W.
Blackstone, Commentaries *121. See Clark & Marshall, A Treatise on
the Law of Crimes ? 8.14 (7th ed. 1967); R. Perkins, Criminal Law
512 (2d ed. 1969); L.
Hochheimer, Crimes and Criminal Procedure ? 39
(1st ed. 1897).
"[T]here is reason to believe that misprision
of felony as defined by Blackstone is merely one phase of the
system of communal responsibility for the apprehension of
criminals which received its original impetus from William I,
under pressure of the need to protect the invading Normans in
hostile country, and which endured up to the Seventeenth Century
in England. In order to secure vigilant prosecution of criminal
conduct, the vill or hundred in which such conduct occurred was
subject to fine, as was the tithing to which the criminal
belonged, and every person who knew of the felony and failed to
make report thereof was subject to punishment for misprision of
felony. Compulsory membership in the tithing group, the obligation
to pursue criminals when the hue and cry was raised, broad powers
of private arrest, and the periodic visitations of the General
Eyre for the purpose of penalizing laxity in regard to crime, are
all suggestive of the administrative background against which
misprision of felony developed. With the appearance of specialized
and paid law enforcement officers, such as constables and justices
of the peace in the Seventeenth Century, there was a movement away
from strict communal responsibility, and a growing tendency to
rely on professional police." 8 U. Chi. L. Rev. 338, 340-341
(1941) (footnotes omitted).
Glazebrook, Misprision of Felony -- Shadow or
Phantom?, 8 Am. J. of Legal History 189 and 283 (1964) cites
eminent authority that in England the offense fell "into
desuetude." Id. at 300. According to Glazebrook, there was no
"reported decision during the four hundred years since the offence
first crept into a book," and no book before J. Chitty, A
Practical Treatise on the Criminal Law (2d ed., London 1826)
contained "a precedent of an indictment for misprision of felony."
Id. In any event, if the crime had died, it was resurrected by the
House of Lords in H. L. Sykes v. Director of
Public Prosecution, [1961] 3 All E. R. 33. Lord Denning stated
that "it is plain that there is and always has been an offence of
misprision of felony and that it is not obsolete." Id. at 40.
Sykes acknowledged only two necessary elements, knowledge and
concealment. "[M]isprision requires nothing active. The failure or
refusal to disclose the felony is enough." Id. at 41. This
followed the Blackstone definition.
The "revival" in England of the crime of
misprision of felony was not generally welcomed. "Resistance to
the crime culminated in the Seventh Report of the Criminal Law
Revision Committee which recommended the abolition of the crime of
misprision by eliminating all distinctions between felonies and
misdemeanors. Misprision was replaced in the report by a new crime
of withholding information with regard to certain offenses for a
consideration other than restitution. [An agreement not to
prosecute a felon in consideration of the return or compensation
for goods stolen constitutes the common law offense of compounding
a felony.] The Criminal Law Act of 1967 [c. 58 ?? 1 and 5] adopted
these two recommendations and has been interpreted as eliminating
the crime of misprision of felony in England." Comment, Misprision
of Felony: A Reappraisal, 23 Emory L. J. 1095, 1100-1101 (1974).
See W. Wade and B. Lilliwhite, Annual Survey of Commonwealth Law
179 (1965); 10 Halsbury's Law of England para. 1201 (Supp. 1978).
The American experience paralleled that of
England; the common law offense was simply not used. The status of
the crime in the United States was summed up in Glazebrook, {PA}
Page 337} How Long, Then, Is The Arm Of The Law
To Be?, 25 Mod. L. Rev. 301, 307, n. 51 (1962):
"No court in the United States has been
prepared to adopt the English doctrine in its simplicity, and hold
that a mere failure to disclose knowledge of a felony is itself an
offence: State v. Hann
40 N.J.L. 288 (1878) often cited as a
solitary exception (e.g. (1945) 32 Va.L.R. 172) was a decision on
a statutory, not the common law offence. In several states an
attempt has been made to establish an offence intermediate between
a simple concealment and that of the accessory after: e.g., State
v. Wilson
80 Vt. 249; 67 Atl. 533 (1907); State
v. Biddle 2 Harr (Del.) 401; 124 Atl. 804 (1923); Carpenter v.
State
62 Ark. 286;
36 S. W. 900 (1896); Commonwealth v.
Lopes (Mass.) 61 N.E. (2d) 849 (1945); State v. Graham
100 La. 669 (1938): '. . . in the
modern acceptation of the term, misprision of felony is almost if
not exactly the same as that of an accessory after the fact' (p.
680). The utility of such an offence has not, however, been
demonstrated: '. . . perhaps not a single case can be cited in
which punishment for such connection with a felony has been
inflicted in the U.S.' -- 2 McClain Criminal Law, s. 938, cited at
(1953) 6 S.Car. L.Q. 91. In Michigan, where the constitution
incorporates the common law of crimes, the Supreme Court held that
this does not extend to misprision of felony since it is 'wholly
unsuited to American criminal law and procedure as used in this
State'; State v. Lefkovitz
294 Mich. 263,
293 N.W. 642 (1940); cf. U.S. v.
Worcester 190 F.Supp. 565-566 (1960). And in interpreting the
Federal statute (1 Stat. 113, s. 6) [18
U.S.C. ? 4 (1976)] which provides that 'whoever
having knowledge of the actual commission, of a felony cognizable
by a court of the United States conceals and does not as soon as
possible make known the same to some judge or other person in
civil or military authority under the U.S. shall be fined not more
than $500 or imprisoned not more than three years or both,' it has
been held that there must be some affirmative act of concealment,
for instance the suppression of evidence, the harbouring of the
criminal or the intimidation of witnesses, as well as the failure
to disclose, for otherwise 'the words conceals and would be
effectively excised from the statute.' This interpretation was
necessary to rescue the statute from an 'intolerable
oppressiveness,' for while federal statutes were few when it was
enacted in 1790, the great increase in their number would make it
unenforceable today if any other were adopted: Bratton v. U.S. 73
F. (2d) 795 [10th cir.] (1934); followed Neal v. U.S. 102 F. (2d)
643 (1939). [ See also United States v. Farrer,
38 F. 2d 515 (D. Mass.), aff'd,
281 U.S. 624 (1930).] This policy appears to have been
successful. In 1956 the Fifth Circuit Court of Appeals noticed
that 'the annotations indicate no conviction for misprision [under
the Federal statute] affirmed': Miller v. U.S., 230 F. (2d) 486.
Cf. Bratton v. U.S. : 's. 146 was enacted April 30, 1790 . . . and
as far as the researches of court and counsel disclose, has been
before the courts but twice in the 144 years of its life' (p.
797)."
Perkins in the second edition (1969) of his
Criminal Law states that "there seems to be no such offense as
misprision of felony in most of the states." At 516. No such
offense is included in the Model Penal Code (U.L.A.). Four years
ago, Florida followed Michigan's view announced in Lefkovitz, Page
339} supra, that misprision of felony was wholly unsuited to
American criminal law. Holland v. State,
302 So. 2d 806 (Fla. App. 1974). Cf.
Mangeris v. Gordon, Nev., 580 P. 2d 481, 483-484 (1978).
Compare State v. Flynn, 100 R. I. 520,
217 A.2d 432 (1966), stating that the
common law crime of misprision of felony was an indictable offense
under the constitution and laws of Rhode Island.
A few states have enacted legislation creating
a crime of misprision of felony substantially similar to the
common law offense as defined in Sykes. See N.J.S.A. ? 2A:97-2
(N.J. 1969); Ohio Rev. Code ? 2921.22 (Spec. Supp. 1973); Wash.
Rev. Code ? 9.69.100 (1976). Two states had such statutes, see Me.
Rev. Stat. title 17, ? 902 (1964) and La. Rev. Stat. ? 856 (1870),
which were later repealed.
Maryland has been in line with the practically
universal view of the other states. We find no case prior to the
case sub judice in which a conviction of misprision of felony has
reached an appellate court of this State and, insofar as can be
ascertained from appellate dockets, there is only one other, State
v. Shaw, 282 Md. 231, 383 A.2d 1104 (1978), see note
19, supra, in which the crime was charged. It is true, as observed
by the trial court in the case at hand, that "[a] dearth of
appellate cases is not proof that the crime is not charged at
trial level," but in view of the numerous appeals in criminal
causes spawned by present day procedures and rights afforded an
accused, it is remarkable indeed that, if convictions upon charge
of the crime have occurred, the present case was the first in
which an appeal was filed. We think that it is a fair inference
that the crime has been seldom charged, and, if charged, has
resulted in very few, if any convictions. Furthermore, we observe
that misprision of felony was not proposed as an offense by
Maryland's Commission on Criminal Law.
As it seems that misprision of felony has been
virtually unused in Maryland since the Revolution gave birth to
the
United States, our inquiry turns to the effect
of non-use of a common law crime. Early on, in State v. Buchanan,
5 H. & J. 317, (1821), Buchanan, J. for the Court announced that
no part of the common law of England to which the inhabitants of
Maryland were constitutionally entitled should be excluded merely
because it had not been introduced and used in the courts here.
Id. at 358. See McGraw v. State, 234 Md. 273, 275-276,
199 A.2d 229, cert. denied,
379 U.S. 862 (1964). Judge Buchanan
explained:
"[U]nlike a positive or statute law, the
occasion or necessity for which may long since have passed away,
if there has been no necessity before, for instituting a
prosecution for conspiracy, no argument can be drawn from the
non-user for resting on principles which cannot become obsolete,
it has always potentially existed, to be applied as occasion
should arise. If there had never been in Maryland, since the
original settlement of the colony by our ancestors, a prosecution
for murder, arson, assault and battery, libel, with many other
common law offenses, and consequently no judicial adoption of
either of these branches of the common law, could it therefore be
contended, that there was now no law in the State for the
punishment of such offenses?" 5 H. & J. at 358.
This principle was affirmed by us, implicitly
at least, in Harris v. Jones, 281 Md. 560, 380 A.2d 611
(1977) when we "recognized for the first time in Maryland the
common law tort of intentional infliction of emotional distress, a
tort previously unacknowledged or arguably abandoned by non-use."
Pope, 38 Md. App. at 527. It does not follow, however, that
because a common law crime does not become obsolete from mere
non-use that it will always be viable. The opinion of the Court in
Buchanan asserted that the provision in Art. 5 of the Declaration
of Rights regarding entitlement to the common law of England
without any restrictive words being used, had reference "to the
common law in mass, as it existed here, either potentially, or
practically, and as it prevailed in England at the time, except
such portions of it Page 341} as are inconsistent with the spirit
of that instrument, and the nature of our new political
institutions." 5 H. & J. at 358 (emphasis added). We have repeated
that statement on a number of occasions, Dashiell v. Attorney
General, 5 H. & J. 392, 401 (1822); State v. Bank of Maryland, 6
G. & J. 205, 226 (1834); Lickle v. Boone,
187 Md. 579, 582,
51 A.2d 162 (1947); McGraw v. State,
supra, 234 Md. at 275-276; Gladden v. State, 273 Md. 383,
389, 330 A.2d 176 (1974). We put it this way in Denison v.
Denison,
35 Md. 361, 378 (1872):
"It is true the common law of England has been
adopted by the people of this State, but only so far as it could
be made to fit and adjust itself to our local circumstances and
peculiar institutions."
What this means is that the common law is
subject to change. This is clearly apparent from its derivation
and its very nature:
"The common law of England is derived from
immemorial usage and custom, originating from Acts of Parliament
not recorded, or which are lost, or have been destroyed. It is a
system of jurisprudence founded on the immutable principles of
justice, and denominated by the great luminary of the law of
England, the perfection of reason. The evidence of it are
treatises of the sages of the law, the judicial records and
adjudications of the Courts of justice of England." Buchanan, 5 H.
& J. at 365 (opinion of Chase, C. J.).
It may be changed by legislative act as Art. 5
of the Declaration of Rights expressly provides. See State v.
Canova, 278 Md. 483, 486, 365 A.2d 988 (1976); Lutz
v. State,
167 Md. 12, 15,
172 A. 354 (1934); Harrison v. State,
22 Md. 468, 487-488 (1864); Coomes v.
Clements, 4 H. & J. 480, 481. It may also be changed by judicial
decision. Chase, C. J., in his opinion in Buchanan, observed:
"Whether particular parts of the common law are applicable to our
local circumstances and situation, and our general code of laws
and jurisprudence, is a question that comes within the province of
the courts of
justice, and is to be decided by them." 5 H. &
J. at 365-366. He gave this rationale:
"The common law, like our acts of assembly, are
subject to the control and modification of the Legislature, and
may be abrogated or changed as the general assembly may think most
conducive to the general welfare; so that no great inconvenience,
if any, can result from the power being deposited with the
judiciary to decide what the common law is, and its applicability
to the circumstances of the state, . . . ." Id. at 366.
We said in Gilbert v. Findlay College, 195
Md. 508, 513, 74 A.2d 36 (1950) that "[t]his
interpretation has been continuously adopted in this State, and
was reaffirmed in the case of Price v. Hitaffer,
164 Md. 505, 510,
165 A. 470 [1933]." We asserted in
Ass'n of Taxi Oprs. v. Yellow Cab Co., 198 Md. 181, 204,
82 A.2d 106 (1951): "We have frequently held that it is our
duty to determine the common law as it exists in this state. . .
." The doctrine of stare decisis does not preclude the exercise of
this duty. We declared in White v. King, 244 Md. 348, 354,
223 A.2d 763 (1966): "The doctrine of stare decisis,
important as it is, is not to be construed as preventing us from
changing a rule of law if we are convinced that the rule has
become unsound in the circumstances of modern life." Accord,
Hearst Corp. v. St. Dep't of A. & T., 269 Md. 625, 643-644,
308 A.2d 679 (1973).
Parts of the common law have been found by
judicial mandate to be inapplicable or obsolete in other states.
For example, Flores v. Flores, 84 N. M. 601, 506 P. 2d 345,
347
(N.M. App.), cert. denied, 84 N. M. 592, 506
P. 2d 336 (1973) found that "liability free intentional injury
to one's spouse does not reflect the circumstances in New Mexico."
Swartz v. United States Steel,
293 Ala. 493, 304 So. 2d 881,
885 (1974) held that the common law rule that a wife has no cause
of action for loss of her consortium is inconsistent with the
institutions of Alabama. Morganthaler v. First Atlantic National
Bank, 80 So. 2d 446 (Fla. 1955) rejected the English rule
that a legatee may elect to receive cash when a testator directs
his executor to purchase an annuity because it "dethrones a
principle [that the intent of the testator controls] which is
sacred to our way of life and fundamental in our concepts of right
and justice." Id. at 452.
In exercising our duty to determine whether a
common law crime presently exists in this State, mere non-use is
not sufficient, as we have indicated, to conclude that the offense
has become obsolete. But non-use, we believe, is not without
significance. When an offense has lain virtually dormant for over
two hundred years, it is difficult to argue that the preservation
of society and the maintenance of law and order demand recognition
of it. See Glazebrook, How Long, Then, Is The Arm Of The Law To
Be?, 25 Mod. L. Rev. 301, 307-311 (1962). Perkins points out:
"The notion that misprision is needed, to
prevent one who knows about another's felony from intentionally
misleading investigating officers, is unfounded. If, when being
questioned by officers who are investigating a felony, one who
knows the facts intentionally misleads the officers by false
statements and thereby 'covers up' for the felon, he thereby makes
himself an accessory to that felony after the fact. If he impedes
the investigation by falsely saying he does not know about it, or
by refusing to talk, he should be held to be guilty of obstructing
justice. There is a wide difference between a mere failure to hunt
up an officer and tell about a felony, on the one hand, and a
refusal to cooperate with an investigating officer, on the other."
R. Perkins, Criminal Law 517 (2d ed. 1969).
Even more relevant, however, to a consideration
of whether a common law crime is applicable as compatible with our
local circumstances and situation and our general codes of law and
jurisprudence is the nature of the crime. The reason for the
failure of common law misprision of felony to survive in the
United States was well expressed by Chief Justice Marshall over a
hundred and fifty years ago in Marbury v. Brooks, 20 U.S. (7
Wheat.) 556, 575-576 (1822) and thereafter noted by many
commentators, text book authors and other authorities:
"It may be the duty of a citizen to accuse
every offender, and to proclaim every offence which comes to his
knowledge; but the law which would punish him in every case for
not performing this duty is too harsh for man."
In England, according to Glazebrook in his
critical consideration of Sykes v. Director of Public
Prosecutions, supra, in 25 Mod. L. Rev. 301, the Criminal Law
Commissioners in their Fifth Report in 1840 repeated and
elaborated this criticism and observed:
"'The necessity of making such disclosures
extends perhaps with greater force to the knowledge of a meditated
crime, the perpetration of which may, by means of such disclosure,
be prevented, than it does to the knowledge of one already
committed.'" Id. at 301, citing, n. 3, "Parl. Pap. (1840) xx, p.
32; quoted, Williams, The Criminal Law: The General Part (2nd ed.,
London 1961), p. 423."
Glazebrook opined that "[f]or more than a
century misprision of felony has been an embarrassment to common
lawyers," and feared that the decisions and speeches in the House
of Lords in Sykes "afford only increased cause for this
embarrassment." Id. at 301. The Court of Special Appeals relied on
Sykes in holding that misprision of felony, as Sykes found it
existed at common law, was currently an indictable crime in
Maryland. Glazebrook ably refuted Sykes, and we borrow extensively
from him in the discussion which follows.
Misprision of felony at common law is an
impractically wide crime, a long-standing criticism which remains
unanswered in Sykes. It has an undesirable and indiscriminating
width:
"The real harshness lies in the fact that the
duty to disclose arises when a person acquires knowledge of an
offence, and this he may do quite involuntarily. A says to B: 'Did
you know that X stole a book from the library last week?' adding
appropriate circumstantial details; or X says to B: 'I stole some
money yesterday; will you help me to repay it?' B is a friend of
X; he wished to know nothing of X's misdeeds; and yet he is to be
a criminal if he does not betray him. It is, furthermore,
particularly difficult to defend a law which indiscriminately adds
to the injuries of the victim of a crime the penalties of the
criminal law should he or she wish to forgive and forget." 25 Mod.
L. Rev. at 311.
Misprision differs from almost all other common
law offenses of omission:
"[T]he duty to act arises not because of the
willing assumption of responsibility, the occupation of an office,
or the ownership of property, but because of the mere possession
of certain knowledge -- knowledge possessed accidentally and
undesired -- knowledge which may indeed have been acquired through
some malevolent person." Id.
Glazebrook observes that although "[t]here may
be crimes where the protection of the public requires that each
offender be brought to justice however reluctant his victims, his
friends, or those who have him in their care, may be to do so, . .
. the line which separates them from all other offences is not the
line which separates felonies from misdemeanors." Id.
at 312. This is particularly true with respect
to Maryland where the distinction between felony and misdemeanor
is a hodgepodge, following neither rhyme nor reason.
Under Sykes, no active step need be taken to
conceal the felony (it is only thus that it remains quite distinct
from the crime of accessory after the fact), and the concealment
need bring no benefit to the accused. But three fundamental
questions remained: when does the duty to reveal a felony arise;
how is that duty discharged; and does a relationship with the
felon prevent the duty arising?
It seems that the duty arises when "a man
knows" of the commission of a felony. When, then, can a man, be
said to know and what is it that he must know? Lord Goddard held
that there must be disclosure when the knowledge a man has "is so
definite that it ought to be disclosed. A man is neither bound nor
would he be wise to disclose rumours or mere gossip, but, if facts
are within his knowledge that would materially assist in the
detection and arrest of a felon, he must disclose them as it is a
duty he owes to the state." Sykes at 46. Lord Goddard left the
matter to the jury as a question of fact. Glazebrook suggests that
"unless the jury is to be entirely uncontrolled, it has to be told
how precise and certain the accused's knowledge must have been
before he can be convicted." 25 Mod. L. Rev. at 313. Is the duty
to be confined to felonies committed in the presence of the
accused, and, if not, is hearsay sufficient? Should the felon's
own admission, standing alone, be enough? Knowledge of the
commission of a crime is an ingredient of the offenses of
accessory after the fact and receiving stolen goods, but, unlike
misprision, they require a positive act. It is reasonable, in such
circumstance, to require a person who has reason to believe
something is
wrong to inquire further before embarking on
some course of conduct, and to hold that he fails to do so at his
peril. "If this rule is applied to misprision, two duties are
imposed: a duty to disclose knowledge of a felony, and a duty also
to make inquiries to resolve a suspicion concerning the commission
of a felony." Id. To paraphrase Glazebrook, must the inhabitants
of Maryland become detectives as well as informers?
Sykes fails to provide a working rule for what
the accused must know. There was a direct conflict between Lord
Denning and Lord Morton into which their brethren did not enter.
Discussing knowledge, Lord Denning said:
"The accused man must know that a felony has
been committed by someone else. His knowledge must be proved in
the way in which the prosecution have been accustomed in other
crimes when knowledge is an ingredient, such as receiving,
accessory after the fact, compounding a felony, and so forth. That
is to say, there must be evidence that a reasonable man in his
place, with such facts and information before him as the accused
had, would have known that a felony had been committed. From such
evidence the jury may infer that the accused man himself had
knowledge of it. He need not know the difference between felony
and misdemeanor -- many a lawyer has to look in the books for the
purpose. . . ." Sykes at 41.
Glazebrook comments: "This leaves it largely a
matter of chance whether misprision is committed or not." 25 Mod.
L. Rev. at 314. That is, on the one hand, it must have been a
felony of which the accused knew, but on the other hand, he need
not know whether the crime was a felony or a misdemeanor.
According to Lord Denning, it would be enough that the accused
knew that a serious offense had been committed if it turns out to
be a felony -- "a lawyer on turning up the books sees it is a
felony. . . ."
"This requirement that it must be a serious
offence disposes of many of the supposed absurdities, such
as boys stealing apples, which many laymen
would rank as a misdemeanor and no one would think he was bound to
report to the police. It means that misprision comprehends an
offence which is of so serious a character that an ordinary
law-abiding citizen would realize he ought to report it to the
police." Sykes at 42.
This rationale was based on the view that what
distinguishes a felony from a misdemeanor is that a felony is a
serious offense, "an offence of an 'aggravated complexion' . . . .
Felonies are the serious offences. Misdemeanors are the less
serious." Id. This introduced a limitation Lord Morton was not
willing to accept. Id. at 46-47. In any event, the limitation
added the further uncertainty of a trier of fact's view of the
gravity of the crime to be reported. 25 Mod. L. Rev. at 314. And,
we observe, the foundation for the limitation is weak indeed when
considered in light of the categories of felonies and misdemeanors
adopted in this State. Sykes avoids what account is to be taken of
excuses offered by an apparent felon. For example, "[i]n cases of
larceny, may the citizen be satisfied by any claim of right that
is made, or must it be weighed, and where suspicion remains this
communicated to the police? . . . The [ Sykes ] recognition of
misprision means, therefore, the imposition not of a duty to
disclose knowledge of the commission of a felony, but of a duty to
disclose suspicions of the commission of a felony. . . ." Id. at
314-315. There are no criteria for determining which suspicions
are to give rise to a duty, and so to criminal liability.
When the duty to disclose has arisen, it is not
clear how it is discharged. It would be logical that once the
authorities are in possession of all the information concerning a
felony, a citizen's duty to disclose his own knowledge ceases. So
there is an added element of chance -- "the chance that the police
already know." Id. at 315. Lord Denning saw the duty as requiring
a citizen "to disclose to proper authority all material facts
known to him relative to the offence. It is not sufficient to tell
the police that a felony has been committed. He must
tell the name of the man who did it, if he
knows it; the place, and so forth. All material facts known to
him. . . . If he fails or refuses to perform this duty when there
is a reasonable opportunity available to him to do so, then he is
guilty of misprision." Sykes at 42. This was not sufficient for
Lord Goddard. He thought that "facts . . . within his knowledge
that would materially assist in the detection and arrest of a
felon" must be disclosed as a duty owed to the State. Id. at 46.
"Thus if a man disclosed all he knew about the commission of a
felony and yet did not disclose the whereabouts of the felon he
would be acquitted by Lord Denning and convicted by Lord Goddard."
25 Mod. L. Rev. at 315.
Their lordships agreed that the questions of
when the knowledge must be revealed and how much trouble must be
taken to reveal it were for the jury. Glazebrook is critical of
this as assigning unsuitably vague questions to the trier of fact:
"If a man is to be punished for not doing
something, he ought to know precisely what is expected of him. The
standard which he fails at his peril to attain ought not to be
left to be fixed after the event by the whim of a particular jury.
Formulae that pass muster in determining the liability of one who
engages in a dangerous course of conduct are not always suited to
crimes of pure omission." Id. at 316.
Only Lord Denning considered relationship with
the felon with respect to the duty to disclose:
"Non-disclosure may be due to a claim of right
made in good faith. For instance, if a lawyer is told by his
client that he has committed a felony, it would be no misprision
in the lawyer not to report it to the police, for he might in good
faith claim that he was under a duty to keep it confidential.
Likewise with doctor
and patient, and clergyman and parishioner.
There are other relationships which may give rise to a claim in
good faith that it is in the public interest not to disclose it.
For instance, if an employer discovers that his servant has been
stealing from the till, he might well be justified in giving him
another chance rather than reporting him to the police. Likewise
with the master of a college and a student. But close family or
personal ties will not suffice where the offence is of so serious
a character that it ought to be reported." Sykes at 42.
Glazebrook finds this to be "a singularly
unhappy instance of creative judicial activity, for a defence
grounded on a 'claim of right made in good faith' is in this
context inapt, and the choice of relationship perverse." 25 Mod.
L. R. at 317. He explains:
"A person advancing a defence of 'claim of
right' pleads that he mistakenly thought that the law recognized
in him a right to act in the way he did. If his defence is
accepted, his mistake will be benevolently viewed, and he is
excepted from criminal liability. The defence is thus founded on
the mistake, on the claim, not the right, and disappears when the
mistake is corrected. . . . In short, if the crime is to be
limited, there must be a categorical rule that doctors and the
like are under no duty to disclose their patients' felonies." Id.
As to the choice of exempt relationships
"[t]he exclusion in misprision of 'close family
or personal ties' is utterly callous and certainly futile: how can
the relation between doctor and patient, an employer and his
servant, be thought more sacred, more deserving of respect and
consideration -- even by the law -- than that between husband and
wife, between father and son? By what standard is it unreasonable
to expect an employer to report his servant's crimes to the
police, and yet proper that a son should betray his father?" Id.
at 318.
We observe that common law misprision is not
only beset with practical defects but may implicate constitutional
privileges. To sustain the Fifth Amendment right against
self-incrimination, "it need only be evident from the implications
of the question, in the setting in which it is asked, that a
responsive answer . . . might be dangerous because injurious
disclosure might result." Hoffman v. United States, 341 U.S.
479, 486-487,
71 S. Ct. 814 (1951). The privilege
extends not only to information that would itself support a
conviction, but "likewise embraces those which would furnish a
link in the chain of evidence to prosecute the claimant. . . ."
Id. at 486. See United States v. King,
402 F. 2d 694 (9th Cir. 1968),
reversing conviction of federal misprision on Fifth Amendment
grounds. We note also that it has been suggested that the federal
misprision statute may involve the right of privacy. In United
States v. Worcester,
190 F. Supp. 548, 566 (D. Mass.
1961), Judge Wyzanski, discussing the federal statute, said:
"To suppose that Congress reached every failure
to disclose a known federal crime, in this day of myriad federal
tax statutes and regulatory laws, would impose a vast and
unmeasurable obligation. It would do violence to the unspoken
principle of the criminal law that 'as far as possible privacy
should be respected.' There is 'a strong reluctance on the part of
judges and legislators to sanction invasion of privacy in the
detection of crime.' There is 'a general sentiment that the right
to privacy is something to be put in balance against the
enforcement of the law.' Sir Patrick Devlin, The Enforcement of
Morals, p. 19."
See Shannonhouse, Misprision of a Federal
Felony: Dangerous Relic or Scourge of Malfeasance, 4 U. Balt. L.
Rev. 59 (1974), calling for "excisement from the criminal code" of
the federal crime. Compare Goldberg, Misprision of Felony: An Old
Concept in New Context, 52 A.B.A.J. 148
(1966), and Comment, Misprision of Felony: A
Crime Whose Time Has Come, Again, 28 U. Fla. L. Rev. 199 (1975).
We have proceeded on the assumption that the
House of Lords was correct in concluding in Sykes that "there is
and always has been an offense of misprision of felony. . . ."
Sykes at 40. We are persuaded, finding no sound reason not to be,
that their lordships' definition of the offense and the
composition of its elements properly reflected the crime as it
existed at common law. We are satisfied, considering its origin,
the impractical and indiscriminate width of its scope, its other
obvious deficiencies, and its long non-use, that it is not now
compatible with our local circumstances and situation and our
general code of laws and jurisprudence. Maintenance of law and
order does not demand its application, and, overall, the welfare
of the inhabitants of Maryland and society as enjoyed by us today,
would not be served by it. If the Legislature finds it advisable
that the people be obligated under peril of criminal penalty to
disclose knowledge of criminal acts, it is, of course, free to
create an offense to that end, within constitutional limitations,
and, hopefully, with adequate safeguards. We believe that the
common law offense is not acceptable by today's standards, and we
are not free to usurp the power of the General Assembly by
attempting to fashion one that would be. We hold that misprision
of felony is not a chargeable offense in Maryland.
III
We have reversed Pope's conviction of the
felony of child abuse because the evidence was insufficient to
sustain the verdict. She may not be tried again for that crime.
Burks v. United States, 437 U.S. 1,
98 S. Ct. 2141 (1978); Greene v. Page
353} Massey, 437 U.S. 19,
98 S. Ct. 2151 (1978); Mackall v.
State, 283 Md. 100, 387 A.2d 762 (1978).
As we have held that the crime of misprision of
felony does not now exist in Maryland, Pope may not, of course, be
retried on a charge of that crime.
IV
Pope moved that we strike from the State's
brief and appendix a selection from the Year Book of 1484 written
in Medieval Latin and references thereto. The State provided no
translation and conceded a total lack of knowledge of what it
meant. The motion is granted.
Pope had the selection translated at a cost of
$150. She further moves this Court to order the Office of the
Attorney General to reimburse the Office of the Public Defender
for the cost of the translation. Pope undertook to have the
selection translated on her own initiative. The motion is denied.
Judgment of the Court of Special Appeals with
respect to child abuse, third count of Indictment No. 18666,
reversing the judgment of the Circuit Court for Montgomery County,
affirmed; judgments of the Court of Special Appeals with respect
to misprision of felony, fifth count of Indictment No. 18666,
affirming the judgment of the Circuit Court for Montgomery County,
reversed; case remanded to Court of Special Appeals with direction
to remand to the Circuit Court for Montgomery County for entry of
judgment of acquittal on the third count and dismissal of the
fifth count; motion of appellant to strike granted; motion of
appellant for appropriate relief denied; costs to be paid by
Montgomery County.
Disposition
Judgment of the Court of Special Appeals with
respect to child abuse, third count of Indictment No. 18666,
reversing the judgment of the Circuit Court for Montgomery County,
affirmed; judgments of the Court of Special Appeals with respect
to misprision of felony, fifth count of Indictment No. 18666,
affirming the judgment of the Circuit Court for Montgomery County,
reversed; case remanded to Court of Special Appeals with direction
to remand to the Circuit Court for Montgomery County for entry of
judgment of acquittal on the third count and dismissal of the
fifth count; motion of appellant to strike granted; motion of
appellant for appropriate relief denied; costs to be paid by
Montgomery County.
{PA}
Page 354} Eldridge, J., concurring in part and
dissenting in part :
I concur in that portion of the Court's opinion
relating to the crime of misprision of a felony. I also agree with
the majority that Pope was not guilty of child abuse as a
principal in the second degree. However, I cannot agree with the
majority's restrictive interpretation of the child abuse statute,
which interpretation furnishes the basis for the majority's
conclusion that Pope was not guilty of child abuse as a principal
in the first degree.
The child abuse statute, Maryland Code (1957,
1976 Repl. Vol.), Art. 27, ? 35A (a), reaches "[a]ny parent,
adoptive parent or other person who has the permanent or temporary
care or custody or responsibility for the supervision of a minor
child. . . ." The Court today takes the position that the
statutory phrase "has responsibility for the supervision of" is
ambiguous, thereby allowing the Court to "give effect to the real
intention of the Legislature." The majority then states that, with
regard to persons other than parents, legal custodians or
individuals "in loco parentis," only those persons who have
assumed responsibility for a child with the consent of the parent
or guardian are covered by the statute. The majority finds it
"self-evident" that "a third person may not assume such
responsibility unless the parent grants it."
Thus, we are told by the majority opinion that
a "person taking a lost child into his home" while an attempt is
made to locate his or her parents is beyond the reach of the child
abuse statute. In other words, in the Court's view, such a person
may voluntarily assume full responsibility for the care of a small
child, for a lengthy period of time while an effort is being made
to find the parents, and during that time may batter the child
unmercifully, but he would not be guilty of child abuse under Art.
27, ? 35A. In my view this is a totally unwarranted narrowing of
an important piece of legislation.
In addition to parents, the child abuse statute
applies to "[a]ny . . . other person who has . . . responsibility
for the supervision of a minor child. . . ." The language is
clear. Everyone who has responsibility is covered, regardless of
how he obtained such responsibility.
It is well-established in the law that one may,
by his own actions, voluntarily assume a particular
responsibility. That the Legislature intended to cover such a
person is shown by the language any other person who has
responsibility. There is no ambiguity here. Consequently, there is
no need to go further in attempting to ascertain the legislative
intent. The majority opinion today flatly violates settled
principles of statutory construction, recently summarized by Judge
Orth for the Court as follows (Wheeler v. State, 281 Md. 593,
596, 380 A.2d 1052, 1054-1055 (1977), cert. denied, 435
U.S. 997, 98 S. Ct. 1650, 56 L.Ed.2d 86 (1978)):
"The cardinal rule of statutory construction is
to ascertain and carry out the real legislative intention. Balto.
Gas & Elect. Co. v. Board, 278 Md. 26, 31, 358 A.2d 241
(1976). A statute should be construed according to the ordinary
and natural import of the language used without resorting to
subtle or forced interpretations for the purpose of limiting or
extending its operation. Burch v. State, 278 Md. 426, 429,
365 A.2d 577 (1976); Cearfoss v. State,
42 Md. 403, 407 (1875). That is, we
must confine ourselves to the statute as written, and may not
attempt, under the guise of construction, to supply omissions or
remedy possible defects in the statute. In Re Appeals Nos. 1022 &
1081, 278 Md. 174, 178, 359 A.2d 556 (1976). Thus,
if there is no ambiguity or obscurity in the language of a
statute, there is usually no need to look elsewhere to ascertain
the intent of the Legislature. Maryland Auto Ins. Fund v. Stith,
277 Md. 595, 597, 356 A.2d 272 (1976). As we said in
Purifoy v. Merc.-Safe Dep. & Trust, 273 Md. 58, 66, 327
A.2d 483 (1974), '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 toward making the statute express an intention which
is different from its plain meaning.'"
Furthermore, even if there existed some
ambiguity in the statute, I am at a loss to know why the majority
finds it "self-evident" that only those persons who have been
granted responsibility by a parent or guardian should be covered.
Nothing in the statutory language indicates such a legislative
purpose. I know of no public policy justifying this
differentiation between a person who assumes responsibility for a
child with parental consent and one who assumes just as complete a
responsibility without the parent's consent. If either abuses the
child, he should be held accountable under ? 35A.
The majority appears to be concerned about the
"good samaritans" who watch a lost child, or allow neighbors'
children to play in their yards and exercise supervision, or
perform "functions of a maternal nature from concern for the
welfare, comfort or health of a child." However, such "good
samaritans" have nothing to fear from the child abuse statute.
But, if one of these same individuals assumes responsibility for
the child and batters it, sexually molests it, locks it for a long
period of time in a dark closet, etc., that person should be held
just as accountable under the child abuse statute as someone else
having responsibility for the child.
My concern in this case is not so much with the
decision that the evidence was insufficient to convict Pope of
child abuse. The evidence may not have been sufficient. Instead,
what is troublesome in this case is the damage which the majority
has done to the child abuse statute.
