On Rehearing
CATES, Judge.The appellant claims that, in boiling his case down to one issue, we have oversimplified. Perhaps subjectively he is right: our view is from the prospect of what should be written — though more is decided. Code 1940, T. 13, § 66.
Accordingly, we list below the appellant’s claims of error done and our reasons to reject them:
1. The statute requires the woman to reside in the county.
This is a matter of proof and not to be raised by. demurrer. The trial judge, much as a Federal district judge,5 makes up the *533issues. § 2, Act No. 295.6 Notice pleading in the originating complaint and summons and the right to particulars at. the pretrial hearing protects the defendant. This is analytically nothing but enforced pleading in short.7 Harrison, Cases on Alabama & Com. Law Pleading, 171.
2. Next it is claimed that Code 1940, T. 34, § 90 — the misdemeanor of nonsupport of a child — is an indirect criminal club to enforce this new civil action.
To this we must point out that the only matter cognizable under Act No. 295, which becomes res judicata under T. 34, § 90, is that of paternity of the child. Morgan v. State, 28 Ala.App. 241, 182 So. 466. Under the independent misdemeanor defined in § 90, the basic element is that the child be “then and there in destitute or necessitous” circumstances. Proof of the failure to pay the amount called for by the judgment under Act No. 295 would not show such destitute or necessitous circumstances. Moreover, the extent of the burden of persuasion is to a degree of reasonable satisfaction, whereas in all crimes it must go beyond a reasonable doubt.
3. “After being declared the father, he (appellant) .is subject to prosecution and ■criminal punishment * * *
True. What we have set out in reply to 2 above shows the difference between the civil and criminal proceeding. See also Law v. State, 238 Ala. 428, 191 So. 803, and Turner v. State, 39 Ala.App. 527, 104 So.2d 775.
4. Evidence of supporting the ■child before expiry of two years from the birth of the child and within two years before complaint, tolls the running of the ■statute of limitations. § 9, Act No. 295.
5. Act No. 295, § 9, does not require as proof to toll the statute of limitations the formal acknowledgment requisite under T. 27, § 11, to legitimate the child. Such formulary act ends bastardy. Residing in a sort of semantic limbo, there can be in legal parlance acknowledged (as well as unacknowledged) bastards.
Application overruled.
. Fed.Rules Civ.Proc. 16.
. “Section 2. * * * The court, on the appearance of the reputed father at the time and place set by the court for hearing such complaint, must, if demanded by the reputed father, first cause an issue to - be made up, to ascertain ■whether he is the real father of the child or not. If the reputed father denies the truth of the complaint, the issue to be tried shall be ‘guilty’ or ‘not guilty’..
. Brinsfield, Pleading in Short by Consent, 1 Alabama Lawyer 372; 'Jones, Alabama Practice and Forms, § 1072.