Clair M. Burke, Appellant, v. the United States of America, Appellee, 239 F.2d 50 (D.C. Cir. 1956)

Appellant was indicted under D.C. Code, § 22-903 (1951, Supp. IV)¹  on two counts; Count One charged wilful non-support of his destitute wife and Count Two charged wilful non-support of his five named minor children. While represented by counsel, appellant entered a plea of guilty and was sentenced to one year on each count. The sentences, which were to run consecutively, were suspended and appellant was placed on two years' probation. Failure to comply with the terms of the probation led to revocation of the suspension and commitment under the sentences. This appeal is from the district court's denial of a motion for relief under 62 Stat. 967 (1948), 28 U.S.C. § 2255 (1952).

Appellant urges that the structure of the statute and the use of the disjunctive "or" show the statute contemplates that only one offense be charged, based upon the non-support of either the wife or the children or both. Having been charged and sentenced separately on one count as to his wife and a second count as to his children, appellant contends he has been charged and sentenced twice for a single offense.

That part of the statute which makes the non-support of the wife an offense rests primarily on violation of a duty which arises from the marriage relationship and is limited to acts by a husband against a wife, whereas the existence of a marital state is not essential to make out an offense against a minor child and either parent may be charged with a violation under the second clause of the statute. Thus, we believe Congress was concerned with two crimes, one by a husband against his wife and the other by any person against his or her minor child.² 

Finding no error in the indictment or in the sentences the judgment of the district court is

Affirmed.