#### STATE and HETTIE KING v. STEPHEN HEDGEPETH.

(Decided May 3, 1898).

Bastardy Proceeding — Criminal Action — Statute of Limitations.

Bastardy proceedings are not subject to the limitation prescribed in Section 1177 of The Code- (two years) but are controlled by Section 36 of The Code which provides that they shall be commenced within three year’s from the birth of the child.

Proceeding in bastardy tried before Bryan, J., and a jury at January Term, 189S, of Franklin Superior Court, on appeal by the defendant from the judgment of a Justice of the Peace. The defendant pleaded not guilty and contended that the prosecution was barred by lapse of time, the Superior Court having held that a proceeding in bastardy is a criminal action. It appeared from the evidence that more than two years, but not three years, had elapsed since the birth of the child. The defendant asked the Court to charge that the proceeding was barred which request was refused and defendant excepted and, upon conviction appealed.

Mr. Zeb V. Walser, Attorney General, for State.

Mr. W. M. Person for defendant (appellant).

Douglas, J.:

This is an appeal in bastardy proceedings, wherein the defendant was convicted. The only question brought before us is the Statute of Limitations, the defendant contending that, as more than two years had elapsed since the birth of the child before the bringing of this action, its prosecution was barred under Section 1177 of The Code. We do not think so. Whatever may be the nature of the proceedings, Section *1040thirty six of The Code specifically provides that: “All examinations upon oath to charge any man with being the father of a bastard child, shall be taken within three years next after the birth of the child.”

We think that this Section controls the period of limitation for reasons more fully set forth in State v. Perry, decided at this term. This being the only exception, and no error appearing upon the face of the record, the judgment is affirmed.

Affirmed.