Satterwhite v. State , 32 Ala. 578 ( 1858 )

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.

[2.] 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.