State v. McCullough

• Decision Date: 30 April 1898
• Citation: 17 Del. 274,40 A. 237
• Court: Court of General Sessions of Delaware
• Parties: STATE v. HARRY L. McCULLOUGH

40 A. 237

17 Del. 274

STATE v. HARRY L. McCULLOUGH

Court of General Sessions of Delaware, Kent County

April 30, 1898

Court of General Sessions, Kent County, April Term, 1898.

The defendant was bound over for his appearance at the April Term on the charge of desertion, preferred by his wife, Julia M McCullough. He appeared on April 28, and was present during the taking of the testimony, but absconded before the court rendered its decision.

R. C White, Attorney-General, for the State.

John B Penington for the defendant.

LORE C. J., and SPRUANCE and BOYCE, J. J., sitting.

OPINION

Further facts fully appear in the following decision of the court:

SPRUANCE J:

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 11, 1887, Sec. 1, Rev. Code, 956, makes the wilful neglect 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 affirmation by his wife and 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 L. 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.

She 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 defendant 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 to 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 to-day 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.

The 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 hundred 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 punishable 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. 189; Fight vs. State, 7 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 case? 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.

Cases 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...