
    Armstrong v. State.
    
      Indictment for Abusive, Insulting, or Obscene Language, in or near Dwelling-House, or in presence of Women.
    
    1. Charge on weight of evidence, as affected by number of witnesses. A .charge asked in a criminal case, based on a comparison of the number of witnesses on each side, is argumentative, misleading, artificial and complicated, and is properly refused; as, where it asserts the right to an acquittal, because there are two witnesses on each side, and they are of equal credibility.
    2. Sentence to hard labor for costs. — When the fine and costs in 'a criminal case are not presently paid, nor a judgment confessed for the same (Code, §4731; Sess. Acts 1880-81, p. 37), the judgment and the sentence of the court should specify either the length of the additional term of hard labor for the costs, or the rate per diem,; and if it is only for such additional term as may be necessary to. pay the court costs and officers’ fees, not to exceed eight months,” it will be reversed on appeal, in order'that it may be corrected in the court below, leaving the verdict to stand.
    From tbe Circuit Court of Escambia.
    Tried before tbe Hon. John P. Hubbard.
    Tbe indictment in tbis case charged tbat tbe defendant used abusive, insulting, or obscene language, near tbe dwelling-bouse of Freeman McNeill, in tbe presence and bearing of tbe female members of bis family. Being tried on issue joined on tbe plea of not guilty, be was found guilty by tbe jury, wbo assessed a fine ot twenty-five dollars against bim, and also imposed thirty days bard labor for tbe county; and thereupon tbe court rendered judgment as follows: “Tbe defendant failing to pay said fine and tbe costs of tbis prosecution presently, or to confess judgment for tbe same with good and sufficient sureties, it is therefore considered by tbe court, tbat be perform bard labor for tbe county, for the full period of twenty days, in lieu of tbe fine, and thirty days bard labor for tbe county, by tbe verdict of tbe jury, and for such additional term as may be necessary to pay court costs and officers’ fees, not to exceed eight months.”
    On the trial, as the-bill of exceptions states, tbe prosecutor (Freeman McNeill) and his wife each testified, in substance, that the defendant came to their house one night, after midnight, aroused them by calling at the gate, and used abusive and obscene language in the hearing of the woman, who had gone to the door in response to his call. The defendant, testifying in his own behalf, denied that he had gone to their house at all, and stated that, on coming home late at night when the railroad train arrived, he at once went to bed, and slept all night; and William Nelson and Sylvester Nelson, brothers of his wife, who lived in the same house, corroborated his testimony in this particular; while William Nelson further testified that, on the night mentioned, he went to said McNeill’s house, and tried to call him out, having heard of some quarrel or trouble during the day between his mother and said McNeill. On this evidence, the defendant requested the court, in writing, to charge the jury as follows: “If the jury find that there is evidence by two witnesses to the fact that the defendant used the language at the time and place alleged, and that there is evidence by two other witnesses, of equal weight and credit, that he was not present at said time and place, and did not use the language as alleged; then the State has failed to make out the case, and the defendant should be acquitted.” The court refused this charge, and the defendant excepted to its refusal.
    J. M. Davison, for appellant.
    Thos. N. McClellan, Attorney-General, for the State.
   STONE, C. J.

— The charge asked by the defendant was properly refused. It sought to obtain the verdict of the jury, based on a comparison of the number of witnesses on the opposing sides, and the weight of their testimony respectively. Such rule would be eminently artificial and complicated, is at most an argument, and its tendency would be to mislead. We have uniformly ruled that such charge is improper, and should not be given. — Ala. Fertilizer Co. v. Reynolds, 79 Ala. 497, and authorities cited.

In the judgment-entry the Circuit Court committed an error. The fine and costs not being presently paid, and no judgment confessed for the same, the court rightly sentenced the defendant to twenty days hard labor for the county, for non-payment of .the fine. In reference to the costs the judgment is in the following terms: “ And for such additional term as may be necessary to pay court costs and officers’ fees, not to exceed eight months.” The statute — Code of 1876, section 4731 — fixed the rate’ at which such services should be performed, at “not exceeding forty cents per diem.” The act of February 26, 1881, changed the rule, fixing it at not less than thirty cents per day, and in cases of misdemeanor, not to exceed eight months. — Sess. Acts, 37. The present judgment neither fixes the rate, nor the length of time the defendant was to labor, except that the term should not extend beyond eight months. It was necessary for the court to declare by its judgment the length of time the defendant was to serve, or to declare the rate per diem. — Walker v. State, 58 Ala. 393; Croom v. State, 71 Ala. 14; Hill v. State, 78 Ala. 1.

The present judgment must be reversed. The reversal, however, extends no farther than the judgment. The verdict of guilty must stand.

Reversed and remanded, that the Circuit Court may enter the proper judgment in reference to the costs.  