Ewell v. State

Hammond, J., delivered the opinion of the Court. The appellant was convicted of wilfully neglecting to provide for the support and maintenance of his wife by the Criminal Court of Baltimore, sitting without a jury, and sentenced to imprisonment for eighteen months. Sentence was suspended and the appellant released on probation on condition that he pay $25.00 a week for the support of his wife. He says the judgment should be reversed because (1) his wife has $10,000 in cash, most of which she accumulated during their married life, while he is unemployed and without funds; (2) ²⁹¹ six months before the prosecution, they had entered into a separation agreement providing for her support if she obtained an absolute divorce, which she had repudiated almost immediately; (3) there was not sufficient evidence of wilfulness.

The appellant and his wife had been married some twenty-eight years when their marital difficulties arose. The husband, who served in the Navy during the second World War and emerged as a commander, had held responsible and well-paying positions before and after his service. His last regular employment, as an economist for the Government in Washington, ended in April, 1953 and since then he has paid her nothing. Several years before that the wife had sued for partial divorce but had subsequently dismissed the proceedings.

Two months later, she again filed for divorce. Attempts were made to reach a settlement of the marital differences and on March 12, 1954, the separation agreement was executed and the second suit dismissed. Then, the wife became dissatisfied with the agreement and went to the State’s Attorney’s office to compel the husband to support her. The State’s Attorney, upon being shown the separation agreement, filed a nolle prosequi.

Later, at the insistence of the wife, a second information was filed by the State’s Attorney, alleging non-support of his wife by the appellant. At the trial the wife testified that she had some $2,000 in cash, perhaps a little more, as well as furniture, and the appellant testified that he had sought, but was unable to obtain, work, that he had less than $100 to his name and was living on borrowed funds. The court found him guilty of nonsupport and the Supreme Bench refused to grant a new trial. After this, the matter was referred to the probation department for investigation of the financial resources of both husband and wife.

This showed the wife’s actual cash assets to be $10,000. The appellant thereupon filed a “Motion to Strike Out Verdict or, in the Alternative, Motion for a New Trial.” Relief was sought because of the false testimony which the wife gave at the trial. Testimony was taken on the motion ²⁹² and the wife admitted that she did have in excess of $10,000, although she said that she was morally obligated to pay it to friends who had taken care of her, when her husband would not, at a time when she was ill. The appellant complained that he was prevented from cross-examining the wife at the hearing on the motion about the individuals to whom she felt morally obligated and about her allegations in the two bills for partial divorce, in which she had said she was without means to support herself or to pay court costs.

He urges, too, that the court should have received the proffered testimony of a former assistant state’s attorney for Baltimore City and a present state’s attorney, each of whom had acted as chief of the Domestic Relations Department of the state’s attorney’s office, that it was a clear and unbroken policy of that office not to bring a non-support prosecution if there was a pending equity matter between the couple or if the wife had even a small amount of money. At common law failure by the husband to support his wife was not a crime. The husband had an obligation of support, which was to furnish necessaries to the wife. If he did not, her remedy was to purchase the necessaries on his credit.

The meaning of the term necessaries was relative, elastic and dependent upon circumstances, that is, the means and station in life of the couple. The liability of a husband was not limited merely to articles necessary to sustain life or to preserve decency but extended to-things which would be desirable and suitable in view of the rank, fortune, earning capacity of the husband and the mode of living of the couple. The liability of the husband to furnish necessaires did not depend upon whether the wife had means of her own and was able to pay for them herself, at least in Maryland. McFerren v. Goldsmith-Stern Co., 137 Md. 573 .

There, Judge Offutt said for the Court: “If then the husband’s duty to supply his wife with necessities depends upon the marital relation and the obligations incident thereto, it cannot be said to depend ²⁹³ upon, nor be affected by her ability to procure such necessities from her separate estate, and such seems to ■be the general view.” The Court adopted this language as an accurate statement of the law: “ ‘The right of a wife to support from her husband and his duty to support her do not depend upon the inadequacy of her means, but upon the marriage relation. Her implied authority to pledge his credit springs from his obligation, as husband, to provide for her, and not from the fact that otherwise she will be destitute”. The Court continued: “And in our opinion the principles so stated are not only established by our decisions, but are entirely consonant with reason and the best considered authority elsewhere.” Statutes have been passed in almost all of the States which have made failure of the husband to perform his duty of support, unless adequately excused, a crime. The statutes fall generally into two classes, those which require the wife to be in destitute and necessitous circumstances before the husband’s failure to support her is a crime, and those which merely state, as does the Maryland statute, Code, 1951, Art. 27, Sec. 96, that it is a crime for one without just cause to “* * * wilfully neglect to provide for the support and maintenance of his wife * * *.” Even in the statutes which require destitution as a prerequisite, the courts have refused generally to interpret the statutes literally.

They have carried over Into the testing of the criminal offense the same standards applied at common law to necessaries and what constituted them. In State v. Waller (Kan.), 136 P. 215 , the deserted wife lived comfortably with her parents. She had saved some money and had won a piano in a contest. Although the statute required the wife to be in destitute circumstances, the Court held that term to be relative and said that the criterion was not mere physical necessity but rather, social and moral propriety, having regard to the fitness of things.

It went on to say: “* * * property which would make a person in one condition of life ²⁹⁴ wealthy would be inadequate to supply the legitimate wants of one differently situated.” In Ulrich v. State (Court of General Sessions of Delaware), 59 A. 2d 460 , the parties, upon their separation, sold their home and divided the proceeds. The wife received all of the furniture, $2,200 in cash, and had $500 of her own. The Delaware statute required the wife to be in destitute and necessitous circumstances. The Court nevertheless upheld the conviction of the husband.

It said: “Depending on their relative economic situations some would regard $2700 as a small fortune, others a substantial amount and, still others, inconsequential.” The Courts in States in which the wife is not required by the statute to be destitute, have applied the same relative tests. In Poole v. People (Col.), 52 P. 1025 , the Court said: “The statute * * * does not change the law as to the. civil liability of the husband to furnish his wife reasonable support. It provides a penalty in case he fails to do so, unless excused by physical incapacity or other good cause. He is not relieved from furnishing such support on account of the financial means of his wife * * See also Shaw v. State (Ariz.), 229 P. 395 .

In Commonwealth ex rel. Fedor v. Fedor, 157 Pa. Super. 305 , 43 A. 2d 363 , a deserted wife kept house for her brothers. •• She shortly was to receive a moderate sum on the settlement of her mother’s estate and had savings of her own. The Court held this had no bearing on her husband’s obligation to support her.

Commonwealth ex rel. Wieczorkowski v. Wieczorkowski (Pa. Super.), 38 A. 2d 347 , agrees. The appellant argues that the purpose of the statute is to prevent a wife from becoming a public charge and that here there is no danger of this.

While this theory has found support by some courts, it has not-generally been accepted under statutes similar to that of Maryland. In State v. Moran (Conn.), 121 A. 277 , the contention was made and the Court agreed that, undoubtedly, this was one of the purposes of the Legislature and added: “* * * that result was not the limit of ²⁹⁵ its purpose nor its chief object. The statute it enacted contains no provision that by reason of the neglect or refusal to support his wife or child either of them may be in danger of being a burden upon the public. * * * The higher and more important object of the Legislature of this state was to provide directly for unsupported wives and children, and to punish this offense against them, and by fear of punishment to prevent the committing of such offenses.” See also Commonwealth v. Acker (Mass.), 83 N. E. 312 . In State v. James, 203 Md. 113, 122 , this Court indicated that the purposes of the Maryland statute were those set forth by the Connecticut Court by adopting the latter part of the language just quoted.

What we have said disposes of several of the appellant’s contentions. That he was not permitted to cross-examine his wife as to her undoubtedly false statements in regard to her financial means, did not harm him. It would have made no difference who the individuals were to whom the wife said she felt morally obligated or whether there were no such individuals at all. It was demonstrated to the court that the wife had, on various occasions, denied the possession of any financial resources and had grossly underestimated those resources under oath at the trial.

As we see it, the possession of the money which she denied having did not bar the right of the State to convict the appellant for the ultimate benefit of the wife, and, so, the appellant was not prejudiced. The offer to show that the practice of the state’s attorney’s office was not to institute prosecution for non-support, where there was an equity proceeding pending between the parties or where the wife had funds of her own, was properly rejected by the trial court. If the offer was on the theory that the practice had put a gloss on the statute which made it mean that the wife had to be in destitute circumstances as a prerequisite to the guilt of the husband, it has been seen that even where this is a specific requirement of the ²⁹⁶ statute, the question of destitution usually is relative. The Maryland act is plain and unambiguous.

It is well established that where the language of a statute is clear and explicit and