(dissenting):—The defendant, Harry L- McCullough, was- in this Court under recognizance sent up by a Justice of the Peace for this county, under a charge of failure to support his wife, Julia M. McCullough. On Wednesday, April 27th, the defendant being present, the Court heard the evidence but did not conclude the case. On Thursday, April 28th, the defendant being called, failed to appear; the case went over until Saturday, April 30th. The defendant was still absent. The Court, upon consideration, concluded that the defendant pay his wife the monthly sum of twenty-five dollars hereafter for her maintenance, in pursuance of the statute. The question then was, should sentence be pronounced upon the defendant in his absence.
The majority of the Court held that it could; and made an order upon him, to give one or more sureties for the payment of the said monthly sum as it fell due, and on failure to comply therewith, that he be committed to the county jail. The recognizance having been forfeited, it was further ordered that a bench warrant be issued for the defendant, to enforce the said order or sentence.
In my judgment such order or sentence was without warrant. If such authority exists it must be found in the statute itself, or in our practice or in common law precedents.
The well-recognized and only orderly method, after the conclusion of the Court had been reached, was to have the defendant called for judgment or sentence. If he failed to appear, then to forfeit his recognizance, and issue a bench warrant to bring him before the Court, and when so before the Court then to make the order or impose the sentence; that he give one or more sureties for the payment of the money, or, in default, to commit him to rhe county jail.
The statute contemplates the presence of the defendant when the order is made; as it provides that he shall give one or more sureties, who are to be approved by the Court. The approval of such sureties is a judicial act and cannot be delegated to the sheriff. This sentence having been pronounced in the absence of the defendant, there is no writ or process for its *282enforcement known to the common law or provided by the statute. This is conclusively shown by the fact that, in the efforts to enforce the judgment, the majority of the Court found it necessary to issue a bench warrant; which is not a writ in execution of the sentence already pronounced, but is process to bring the defendant before the Court to receive sentence. We have here, therefore, the illogical proceeding of first sentencing the defendant in his absence, and then issuing process to bring him before the Court for sentence; when sentence has already been imposed, unless the one already pronounced is a nullity. When a sentence is of such character that no writ can be framed or issued to enforce it, of necessity, the accused must be present when it is imposed or you are reduced to the absurd position of passing a sentence which cannot be executed.
I can find no statutory authority, nor is there any common law precedent; nor is there any necessity for such an illogical and dangerous proceeding.
Manifestly the statute does not provide that the defendant may be sentenced in his absence.
It is contended that sentence may be pronounced by analogy to common law proceedings in cases of misdemeanor, where the right to sentence in the absence of the defendant has been recognized. But it will be found that sentence in the absence of the defendant, in all such cases, was imposed where the penalty was a fine only ; and then only because there was a common law writ of capias for the enforcement of the sentence, viz : the collection of the fine. Such collection was a ministerial duty and could be performed by the sheriff without the further intervention of the Court. On this point the current of authorities is absolutely unbroken.
The Duke’s case, in Queen Anne's time, 1 Salkeld, 400, is the leading case. The crime charged is perjury.
Hodt, C. J.,says :—“Judgment cannot be given against a man in his absence for a corporal punishment, and there is no such precedent; a capias ad satisfaciendum Domino Regi pro fine is common, put there never was a writ to take a man and put *283Mm in the pillory; so says Sir Samuel Alfrey upon search of precedents. ’ ’ For the same reason it is manifest that no writ can be issued to take a man and compel Mm to give one or more sureties, or that he be committed to the county jail.
In First Chitty, C. L., 696, it is laid down: “Where a persoú is committed to prison, it ought to appear upon the record, that he was present at the time of the committal.” Ibid, 664, the rule is stated as foEows: “Where the judgment against the defendant could only be the payment of a fine the Court might dispense with his personal appearance. ’ ’
In Son vs. The People, 12 Wendell, 344, which was a misdemeanor for fraudulently disposing of property in fraud of creditors, the Court, in the absence of the defendant, imposed a fine of ten dollars, and that he stand committed until the fine be paid. Savage, C. J., gives the following reasons: “The true reason why a fine might be imposed in the absence of the prisoner, and not a judgment that he be put in the pillory or imprisoned was that there is a regular process to collect the fine, but none to take a man who is at large and put him in the pillory.” Equally it may be said that there is no regular process to take him and compel him to give one or more sureties or commit him to the county jail, as in the case before us.
In The People vs. Winchell, 7 Cowan, 525, which was a case of perjury, Judge Cowan, the able reporter, states the rule to be that ‘ ‘the power of sentencing in absence seems to be confined to the case of fine exclusively. ’ ’
From this rule I have been able to find no departure in the English decisions. The rule is clear and uniform, that the right to sentence in the absence of the accused is confined to cases where a fine only may be imposed; and does not extend to any other penalty.
The cases in this country cited by my brethren in support of their views, recognize this rnle. The question in all of them that I have been able to examine turns upon the right of the Court to receive the verdict of a jury in the absence of the accused. In misdemeanors the right to try the accused and to *284receive the verdict of the jury in his absence has been recognized in, and is the law of this State. Sentence, however, has not been pronounced in his absence, unless it may have been in the case of a fine only. In Price vs. The State, 36 Miss., 531, cited by the Court, the question was the right to receive a verdict in the absence of the defendant.
In Fight vs. The State, 7 Ohio, 180, the-charge was counterfeiting. At the November term, 1834, the prisoner was placed on--trial before the jury, the testimony being partly heard, Court adjourned until the next morning, the-accused being-called, made default. The Court, on motion, issued a bench warrant, and proceeded to charge the jury. The jury retired, and the next day ■brought in a verdict of guilty, which was received by the Court in the absence of the defendant. At the March term, 1835, " Fight appeared and moved for a new trial; the fourth reason being that the verdict was rendered in his absence. The' Court overruled the motion, and then, the prisoner being in Court, sentenced him to three years’ imprisonment. So that the question of imposing sentence in his absence was not raised. The question before the Court was whether a verdict could be rendered in the absence of the accused. The Court held, “If the trial is once commenced, and the prisoner in his own wrong leaves the Court, absconds, leaving his case to the management of counsel and runs away, I can find no adjudged case to sustain the position, that in England, the proceedings would be stayed. Such a case must form an exception to the general rule, and the verdict may be legally received in the absence of the accused.” To this extent our Courts have -gone. The learned Judge (Wood) by way of obiter dictum, goes further, and says, “In England, in misdemeanors, "where the defendant is on bail, a trial, conviction . and sentence may be had in his absence. He is present or not at his option. In felonies, a different rule, it is true, prevails. The reason of this difference in. the mode of proceeding in the two cases cannot perhaps at this time be satisfactorily explained ; or ' rather no satisfactory reason can be given for it.” Evidently, the Court in this dictum, that sentence might be passed in the absence of the accused, overlooked the English cases which confine the right to sentence in the absence of the accused to cases *285where the penalty is a fine only ; and give as the reason, that the judgment may be executed by the well-known common law writ of' capias..
In another case relied upon (Lynch vs. Commonwealth, 88 Pa. St., 189) the question was whether the jury could render a verdict in the absence of the accused; larcency being a misdemeanor under the statute. Agnew, J., uses this language : “ ‘ The mere voluntary absence at the rendition of the verdict, by one out on bail, who has appeared or has been tried regularly, is not a fatal error. He loses no valuable right thereby, for he may move for a new trial, or in arrest of judgment, and cannot be sentenced until he appears. ’ ’
These cases certainly do not sustain the position, that sentence may be passed in the absence of the accused in a case like this. In the Fight case the accused was present when the sentence was imposed. In the Lynch case, Judge Agnew expressly ruled that the accused could not be sentenced until he appeared.
There being, therefore, no statutory or common law authority to sentence a man in such a case in his absence, it must rest, if anywhere, upon the plea of necessity. But there seems to be no such justification in this case. The Court can formulate its finding of what ought to be done, and spread it upon the record, if needful to govern the action of the Court in passing sentence at the next session if the defendant by that time shall be taken upon the bench warrant; just as the verdict of a jury may be received and put of record. No sentence can be effective until the defendant is found in the jurisdiction of the Court and brought before it. When so found, and not until then, can he be compelled to obey the law or suffer the penalty. As the case now stands, we may be confronted by two sentences ; one inoperative, in the air as it were, the defendant not being in reach; the other to be imposed in case the accused should be taken on the bench warrant which has been issued.
For these reasons I am unwilling to experiment in this new method of imposing a sentence and attempting to enforce it; and am therefore compelled to dissent from the judgment of the *286majority, that we sentence McCullough in his absence. The case does not come within the rule, so clearly defined and well settled, that sentence may be so imposed only in cases where the penalty is restricted to a fine exclusively.