The second count of the indictment in this case is substantially defective, in not charging the ownership of the property alleged to have been burned. — Martha v. The State, 26 Ala. 72. On that count alone the defendants were found guilty, and the motion in arrest’ of judgment should have prevailed. — Case of Beckwith, 1 Stew. 318; 1 Arch. Crim. Pleadings, by Waterman, 115; ib. p. 178, 31.
In Johnson v. The State, Justice Parsons uses the following . language, “ Any indications (of guilt) arising from the conduct, demeanor, or expressions of the party, are legal evidence against him. The law can never limit the number or kind of such indications.” — 17 Ala. p. 624. With the rule thus *82expressed, we are entirely satisfied. Under its operation the court below rightly admitted, as evidence to be weighed by the jury, the testimony of/Cortez, that some time before the burning, Martin requested him, the witness, to burn the ‘ Constitution.’ Also, the fact that, when Cortez was leaving Alabama, after the indictment was found, Estapa, coming out of Martin’s house, Martin being present, had possession-of Martin’s horse and buggy, and with them carried Martin out of the State. The waiving of Martin’s hand to Cortez at that time, the payment of money by Martin to Estapa, if witness saw, and could testify to the facts, were admissible evidence; slight circumstances in themselves, but still admissible.
But the various conversations alleged to have been held between Cortez and Estapa, where wholly inadmissible. True, where a conspiracy between two or more to commit a crime, is established as an independent fact, then the acts, conduct and declarations of each are admissible evidence against all. See Arch. Grim. Pleadings by Waterman, vol. 3, pp. 618-19, and notes. But the acts and declarations of one man, made apart, can never be legal evidence against another of complicity with him, unless other proof than those acts or declarations show the community of purpose. — Stewart v. The State, 26 Ala. 44.
Rivers was introduced as a witness to sustain Cortez. The testimony he gave was not of a fact or circumstance tending to show the guilt of either of the defendants; and therefore it was inadmissible as a corroborating circumstance.
To justify the conviction of Elinn under the second count in the indictment, it was "incumbent on the prosecution to satisfy the jury that he intended to “ charge or injure the insurer,” He could not entertain that intention, in the absence of knowledge that the property was insured. It was then necessary that the jury should have been convinced by the,proof that he had such knowledge. The charge, as asked, ought to have been given; and the one given in lieu of it, not being equivalent to it, did not cure the error. We do not hold that, to justify conviction, a witness must have sworn to the direct fact, that Elinn was informed of the insurance. It was necessary, however, that facts or circumstances in evidence should have shown that he had such knowledge.
*83The first branch of the other charge, which was refused, is free from exception. Corroborating testimony, to avail any thing, must-be of a fact tending to show the guilt of one or both of the parties. — Roscoe on Criminal Evidence, 157. But the latter branch of the charge is not correct in law. To hold that the corroborating circumstance is insufficient, unless it shows the guilt of the defendant, is not to corroborate the evidence, but to make out the case without it. This charge was properly refused.
The defendants having been found guilty “under the second count in the indictment,” and the jury failing to respond to the other three counts, it follows that the prosecution as to the other three counts is at an end. — Coleman & Owen v. The State, 3 Ala. 14. The second count, we have seen, is insufficient. — Campbell v. The State, 9 Yerg. 333; Morris v. The State, 8 Smedes & Marshall, 762; The State v. Kelly, 2 Tyler, 471; Burns v. The State, 8 Ala. 313.
The judgment of the city court is reversed, and the cause remanded. Let the prisoners remain in custody until discharged by due course of law.