Commonwealth v. Withers

Decision Date28 April 1827
Citation20 Ky. 510
PartiesCommonwealth for Stafford v. Withers.
CourtKentucky Court of Appeals

Penal Statutes. Limitations. Parent and Child.

ERROR TO THE LINCOLN COUNTY COURT.

Denny Attorney General, and Montgomery, for plaintiff.

OPINION

OWSLEY JUDGE.

On the 3rd July, 1824, there issued from a justice of the peace for Lincoln county, against Withers, a warrant containing a charge of his being the father of a bastard child, of which Sarah Anne Stafford was delivered, on the 24th day of December, 1822. Withers was arrested under the warrant, and having been brought before the justice, was recognized to appear and answer the charge before the next county court. He accordingly appeared, and moved the court to quash the proceedings, and discharge him from confinement. The motion prevailed, and he was discharged.

Withers arrested for being the father of a bastard, and discharged in the county court on motion.

The question is, was the court correct in sustaining Withers' motion?

The court appears to have been governed in its decision, by the opinion that the proceedings against Withers was barred by the act of 1796, 2 Dig. L. K. 864, limiting the time for bringing certain suits, & c. That act provides that " all actions, suits, bills, indictments or informations which shall be had, sued or exhibited upon any penal act of assembly, not affecting life or limb, made or to be made shall be had, brought, sued or exhibited, within one year next after the offense committed against such act, and not after." The language of this act is too explicit to admit of a doubt, but that after the lapse of one year from the commission of an offense against any penal act of assembly, the offender is not liable to be proceeded against in any of the modes mentioned in the act. Were we, therefore to concede that the act concerning bastards, under which the proceedings were conducted against Withers, is a penal act of assembly, there would certainly be great plausibility in saying that the court was correct in deciding, that after one year from the birth of the child of whom he was charged with being the father, he was not liable to be charged with the maintenance of the child.

Proceedings for the recovery of penalties given by statute must be commenced within one year.

But we do not admit that the act concerning bastards can, with any propriety, be denominated a penal act of assembly. It will be granted,...

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