STONE, C. J.
The indictment in this case contains four counts. The first count charges the larceny of seed-cotton, the property of David Williams. The second count is identical with the first, with the exception that it charges the cotton to be the “ property of some person to the grand jurors unknown.” *4The third count charges a fraudulent sale or removal of cotton, on which there was a lien 'created by law, in favor of David Williams. The fourth count is defective. It is impossible to ascertain there is a lien on property, without knowing or ascertaining that there is a person, natural or artificial, in whose favor it exists. The jury found that the defendant was guilty under the second count in the indictment. In other words, the jury did not ascertain whose cotton was stolen ; or. a.t least, did not find that it was the property of David Williams. Dennis Williams appears to have been the most important witness for the prosecution. In his testimony alone are we informed that the defendant, with another, carried the cotton away. Exclude his testimony, and, from any thing shown in the bill of exceptions, there is no proof either of the taking or carrying away. Unless his testimony was believed, it is difficult to conjecture on what testimony the accused was convicted ; and if his testimony was entirely believed, defendant, in carrying off the cotton, if not a co-conspirator with Lorenzo Posey, would appear to have been his agent to carry the cotton to market and sell it. This witness testified that, during the night, Posey brought the cotton to the house of Hill, the accused, and that very early the next morning, when Hill started to market with the cotton in his wagon, Posey was present. Now, as we have said, if this be true, there was nothing in these mere facts to constitute larceny by Hill, at least until he loaded the cotton to carry it off; and not then, unless the cotton had been previously stolen through his procurement or participation. It results that, on this theory, the proof of taking and asportation by Hill consisted in the testimony of Dennis, that the cotton was placed in the wagon and carried off. And, as part and parcel of his narration, the alleged presence and conduct of Posey were important factors; and any words uttered, or directions given by him, if believed to have been uttered or given, were verbal acts, entitled to be weighed and considered, in determining whether or not the alleged asportation by Hill was criminal. They were res gestee of the main fact testified to by this witness — the asportation, alleged to be larcenous. — Henderson v. The State, 70 Ala. 23" court="Ala." date_filed="1881-12-15" href="https://app.midpage.ai/document/henderson-v-state-6511213?utm_source=webapp" opinion_id="6511213">70 Ala. 23; Ala. Gr. So. R. R. Co. v. Hawk, 72 Ala. 112" court="Ala." date_filed="1882-12-15" href="https://app.midpage.ai/document/alabama-great-soiitliern-railroad-v-hawk-6511457?utm_source=webapp" opinion_id="6511457">72 Ala. 112.
We are not pronouncing on the weight of the testimony, nor on the guilt of the accused. Even if Posey brought the cotton to Hill, and gave directions for its sale, this is but testimony, and not conclusive of the latter’s innocence. It is conclusive, that if the cotton was stolen, it had been stolen before that time; and to justify Hill’s conviction, there should be other testimony that he did the act, procured it to be done, or counseled or aided in its perpetration. Less than this would *5not make him guilty of larceny — the offense charged against him, and of which he was convicted. What Dennis testified Posey said the morning the cotton was carried off, should have been allowed to go to the jury for what it was worth.
The judgment of the court was, “ that said defendant perform additional hard labor for the county for — days, at 33^ cents per day, to pay and satisfy the costs of this prosecution, but not to exceed eight months.” We have several times held this to be sufficient. It would, however, greatly tend to prevent abuse, if the judgment were made to express the amount of the costs, and the number of days the defendant is required to serve. All connected with the case, or interested in the punishment, would then understand and know when the term would expire. Of course, the pay of the defendant’s own witnesses must not be computed as costs, for the payment of which additional hard labor may be imposed. McIntosh v. The State, 52 Ala. 355" court="Ala." date_filed="1875-06-15" href="https://app.midpage.ai/document/mcintosh-v-state-6509024?utm_source=webapp" opinion_id="6509024">52 Ala. 355; Walker v. The State, 58 Ala. 393" court="Ala." date_filed="1877-12-15" href="https://app.midpage.ai/document/walker-v-state-6509820?utm_source=webapp" opinion_id="6509820">58 Ala. 393.
Reversed and remanded. The defendant to remain in custody, until discharged by due course of law.