We have three statutes in reference to the duty of the husband to support his wife.
Chap. 48 of the Revised Code, Sec. 15, p. 377, provides for the enforcement of the duty at the instance of the Trustees of the Poor.
The act of April n, 1887, Sec. r, Rev. Code, 956, makes the wilful desertion of the husband to support his wife, or his wilful desertion of her, a misdemeanor punishable by fine.
The act under which we are now proceeding was passed April 13, 1887, and is found on page 971 of the Revised Code.
This act provides “That if any husband or father being within the limits of the State of Delaware, shall separate himself from his wife, or from his children, or from his wife and children, without reasonable cause, or shall neglect to maintain his wife or children, it shall be lawful for any Justice of the Peace of this State, upon information made before him under oath or *276affirmation by his wife or children, or either of them, or by any other person, to issue his warrant to the sheriff Or to any constable of the county, for the arrest of the person against whom the information shall be made as aforesaid and bind him over with one or more sufficient sureties in a penal sum to be determined and fixed by the Justice, not less, however, than the sum of five hundred dollars, to appear at the next session of the Court of General Sessions in and for the county in which such proceedings are had, there to answer the said charge of desertion, and in default of giving such surety to commit him to the jail of the county,” etc.
It is not material that the marriage or desertion should have taken place in this State.
It is sufficient that the husband is in this State, and that he, without reasonable cause, neglects to maintain his wife.
The facts proved are substantially these: The defendant, Harry E. McCullough, was married to his wife Julia, the complainant, in Wheaton, Illinois., in 1880. After living together in various places they removed to Chicago in 1884, where they continued to reside until January, 1892, 'when an altercation arose between them in which the husband, according to his statement, charged his wife with tale bearing and falsehood. She says that she charged him with spending his money upon another woman, and that he admitted it. He had an opportunity to deny this statement of the wife when he testified before us, but he did not do so. The quarrel culminated in a declaration by one of them that they could not live together, and she started to go away, but as the night was inclement he offered to go, and did so. She stayed, continuing to live in the house a month thereafter. He continued to live in Chicago for a few months, but did not visit her or do anything for her support. Afterwards he changed his home several times, and finally came to Delaware, where he has since resided.
On several occasions, when she learned where he was, she wrote to him demanding money from him, but his testimony, as well as hers, is that from the day of their separation in 1892 he has never contributed anything towards her support.
*277She testifies that when she learned that he was living in this State she came here and found him living with another woman as his wife.
The defendant admits living with this person, but denies that their relations were unlawful.
Under the facts proved it is quite impossible to credit this denial.
It is alleged that some months ago the defendant was arrested in New Castle County under a similar complaint, and that those proceedings were abandoned by reason of his agreement to pay his wife a certain sum of money. We know nothing as to the terms of this alleged agreement—as it was not proved—but it is of no consequence in this case, as it is admitted that the defend-, ant has wholly failed to pay his wife anything under it.
The defendant owns real estate in the State of New York which he says is assessed at $8,700, and which he values at $10,000.
He is a printer by trade, and is now employed as a newspaper reporter.
He is able to support his wife, and without reasonable cause neglects to do so.
The Court are unanimous in the opinion that he should be required tó do so, and that these proceedings are properly taken.
The defendant, with sureties, entered into a recognizance before a Justice of the Peace conditioned to appear in this Court to answer the complaint of his wife, and not depart the Court without leave.
He was present at the taking of the testimony and was examined as a witness in his own behalf.
When today he was called he did not answer, and was found to have absconded, and his recognizance was thereupon forfeited.
Under these circumstances the question is presented, whether we have the right to proceed to judgment in his absence. The majority of the Court are of the opinion that we have the right, and that it is our duty to do so.
This is not, strictly speaking, a criminal proceeding.
*278The judgment against the husband is not as punishment for anything he has done, but a mode of enforcing in the future his duty to support his wife.
The order is for the payment of money, and the mode of enforcing it is the giving security, and being committed to jail until the order is complied with, or a discharge by the Court.
The nearest analogy known to us is the sentence in misdemeanors to pay a fine and costs, and stand committed to the custody of the sheriff until payment. In such cases the imprisonment is not the punishment, but a mode of enforcing it.
While it is usual to require the presence of the defendant when sentence of fine only is imposed in cases of misdemeanors, it is not essential, and the Court may in its discretion pass sentence in his absence.
Where corporal punishment is to be inflicted it is necessary that the defendant be personally before the Court at the time of sentence, but where a pecuniary penalty only can be awarded, judgment may be given in his absence.
1 Chitty Crim. Prac., 695.
It is discretionary with the Court to require his presence at the time of sentence if a fine is to be imposed.
21 Am. & Eng. Ency. of Law (1893) 1068.
In King vs. Constable, 7 Dowling & Ryland, 663, the defendant, a Justice of the Peace, had been convicted on indictment for misdemeanor in office. The Attorney-General prayed judgment. Counsel for the defendant moved that his personal attendance might be dispensed with on the ground of age and infirmity. The Court held that he must appear in person unless some reason for his absence was assigned on affidavit. At a subsequent session an affidavit of extreme age and ill health being filed, the Court dispensed with his personal presence and pronounced judgment in his absence, imposing a fine of one hunhundred pounds.
In Son vs. People, 12 Wend., 344, the charge was violation of the fraudulent debtors’ act, by the disposal of certain personal property contrary to the statute, being a misdemeanor *279punishable by fine. The verdict of the jury was guilty. The judgment was that the defendant pay a fine of ten dollars and stand committed until the same should be paid. The defendant was not present when the judgment was pronounced. On certiorari to the Supreme Court, it was held that “It is not necessary that a defendant in a criminal proceeding should be present in court when judgment is pronounced, except when corporal punishment is inflicted, ’ ’
“The imprisonment in the present case was no part of the punishment, ” “If the fine is paid upon the defendant’s being arrested, there is no authority to imprison. Judgment below is affirmed. ”
These authorities are in accordance with the practice of the courts of this State, and are abundantly sufficient for our present purpose.
There are many American cases which go much further, holding that even in cases of felony, where the penalty is imprisonment or other corporal punishment, if the defendant, being on bail, absconds during the trial, the verdict of the jury may be received and recorded, and sentence pronounced in his absence, on the ground that by voluntarily absenting himself he waives his privilege, and elects not to be present at any future stage of the case. Lynch vs. Commonwealth, 88 Pa. St., 189 ; Fight vs. State, 1 Ohio, 180; State vs. Kelly, 97 N. P., 144; Price vs. State, 36 Miss., 531. Without giving our sanction to these cases we recognize great force in the reasons assigned by the courts.
It has been suggested that we should not at the present term make the order, but leave it to be done at some future term, without another hearing, upon the conclusions reached by the judges now sitting, This might be done if the judges sitting at the present term, or a majority of them, should sit at such future term. But what assurance have we that this will be the cáse ? Under our system future terms may be held by entirely different persons, and in the usual course of business it is not probable that we 'will all soon sit together in this County.
*280Cases can be found where the court trying the case takes the verdict of the jury, and at a subsequent term of the same court, composed partly, or possibly wholly, of different persons, sentence is pronounced. But if we adopt the course proposed in the present case, there would be no record of verdict or finding of any kind upon which a judgment or order could be rendered at a future term, and the case would of necessity have to be heard de novo.
This would result in a failure of justice, as it would be quite impossible to bring again from Chicago the complainant, and again secure the testimony which we have heard.
Unless controlled by the authority of well-adjudged cases we would not be justified in allowing the defendant by his wrongful act to accomplish this result.
Following well-established precedent, and justified by reason, we are of the opinion that judgment should be rendered at this time.
Bet the following order be entered :
And now, to wit, this thirteenth day of April, A. D. one thousand eight hundred and ninety-eight, this case having been heard and fully considered, it is ordered that the said Harry E. McCullough pay to his wife, Julia M. McCullough, the sum of twenty-five dollars monthly, the first payment thereof to be made on the thirtieth day of May next ensuing, for her comfortable support and maintenance; and that he give security by one or more securities to the State of Delaware in the sum of fifteen hundred dollars for compliance with this order, and upon failure to comply with this order, it is ordered that the said Harry E-McCullough be committed to the county jail, thefe to remain until this order is complied with or he be discharged by order of the Court.
And the said Harry E- McCullough having departed the Court without leave, it is further ordered that a bench warrant be issued to the sheriff of Kent county for the arrest of the said Harry E- McCullough.
Boyce;, J., concurred.