¶11-2. It is a general rule that a witness must state facts and cannot state bis opinion as to tbeir existence. There are exceptions to the rule, and among others, that as to matters with which he is specially acquainted, but which cannot be specifically described, a witness may express an opinion, which the jury must take in connection with the facts on which it is based. — 1 Whart. Ev. § 512. Within this exception, falls the evidence to the admissibility of which objection was made. The identity of the wheat stolen with that taken to the mill by the defendant, was a material inquiry. The wheat stolen was the property of the witness who had raised and cut it. For thirty years the witness had been a miller and a grower of wheat, and of course had observed whatever distinctive peculiarities there may be in the different varieties of wheat. The wheat had been cut early, and when cut early, the grain has a peculiar odor. Having compared the wheat found in the possession of the defendant with that remaining in the hogshead from which his wheat had been stolen, and discovering that it had the same odor, we do not perceive the force of the objection to his expression of the opinion that the wheat in the possession of the defendant, was a part of the wheat originally in' the hogshead. The identity of the two parcels of wheat was of matter about which he had special knowledge and which was not capable of proof by any other means. The weight of the evidence was for the consideration of the jury, and perhaps would be regarded as of little value, if the fact was, that ail the facts on which the opinion was based, would have been equally applicable to any other parcels of wheat as to those in the hogshead, and in the sack, if cut early. Its weight, and its admissibility are different questions.
¶23.,. The practice of entering judgments imposing hard labor for the county, for the payment of costs, in the form in which the present judgment is entered, has prevailed too long, and has been too often sanctioned by this court, for any disturbance of it. If the question were open, I would not hesitate to declare it irregular. No such judgment ought to be entered without specifying the precise amount of the costs, and the number of days the defendant is to serve for payment of them, and the sum allowed for each day’s service. This certainly is due to the dignity of a judgment, depriving a citizen of his liberty, and condemning him to compulsory labor.
¶3The judgment must be affirmed.