— 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 judg*51ment 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.