
    SATTERWHITE vs. THE STATE.
    [prosecution under bastardy act.]
    1. Death of bastard child. — The death of the alleged bastard child, after issue joined, is proper matter for a plea puis darrein continuance, but constitutes no ground for a motion to dismiss the proceeding.
    2. Competency of prosecutrix as witness. — The mother of the alleged bastard is made a competent witness by the statute, (Code, § 3807,) and her competency is not affected by the death of the child before the trial.
    Appeal from tbe Circuit Court of Macon.
    Tried before tbe Hon. Robt. Dougherty.
    This case was before tbis court at its January term, 1856, when tbe judgment of tbe court below was reversed, and tbe cause remanded. — See 28 Ala. Rep. 65. On tbe second trial, as appears from tbe bill of exceptions in tbe present record, “tbe proof disclosed tbe fact that tbe reputed bastard child bad died since the institution of tbis proceeding, and in tbe summer of 1857.” Tbe defendant “thereupon suggested to tbe court that tbe cause ought not to be further prosecuted against him, and moved tbe court that be be discharged from further trial; ” which motion tbe court overruled, and tbe defendant excejoted. Tbe defendant also objected to tbe competency of tbe prosecutrix as a witness, and reserved an exception to tbe overruling of bis objection. Tbe jury returned a verdict of guilty against tbe defendant, and tbe court thereupon rendered judgment for costs against him; tbe judgment reciting, that the death of tbe child was shown to tbe court. Tbe rulings of tbe court to which exceptions were reserved, and tbe judgment rendered, are now assigned as error.
    Willams & Graham, and Thomas H. Watts, for tbe appellant.
    M. A. Baldwin, Attorney-General, contra.
    
   WALKER, J.

Upon tbe death of the Illegitimate child, pending a proceeding in bastardy, the defendant has no right to demand from the court a dismissal of the proceeding. The death of the child pending the proceeding, and after issue joined, would be proper matter for a plea puis darrein continuance. The death of the child, after issue joined, does not show that the proceeding was wrongfully instituted; and it would, therefore, be improper for the court to dismiss it. Besides, the motion to dismiss refers the question of fact as to the death of the child to the court, when it is a proper matter for the decision of the jury. The court did not err in overruling the motion to dismiss.

The motion to dismiss being overruled, the issue before the jury was as to the paternity of the child.' Upon that issue, the mother of the child is by the statute made a competent witness. — Code, § 3807.

The judgment of the court below is affirmed.  