¶1The witness Long testified, that he, as justice of the peace, presided in the preliminary trial of the accused, when the present prosecution was instituted. He was then permitted to testify, against the objection and exception of the accused, “ that he explained the charge to defendant, and asked him if he desired to make a statement; that, after defendant made his statement, he, witness, told him, defendant, that his own statement would convict him, to which defendant made no-reply.” The legality of this evidence is attempted to be maintained, on the alleged ground that it is a confession, implied from silence. Confession of what? Not of any criminating fact in the case, for there is no proof of any fact, nor of any thing stated as fact. Giving it its full scope and import, it was, at most, the expressed opinion of the witness that defendant’s own statement of the facts was, in ’itself, enough to convict him ; and if defendant’s silence be construed to be a confession, it can only be a confession that Long, the witness, believed defendant’s statement of the facts to be sufficiently criminative to justify his conviction. It requires neither argument nor authority to show, that Long’s opinion of the sufficiency of the evidence could not be the subject of legal testimony against the accused ; and we can not perceive how defendant’s confession that such was Long’s opinion can transform it into legal evidence. Long testified to no fact stated by him tó the defendant. Let us suppose the latter had attempted a reply, what would have been its form ? To negative what had been said, he must have denied that such was Long’s opinion, or denied that such opinion was justified by his, defendant’s statement.
¶2To come within the rule we have been considering, the statements must be made as of fact, pertinent to the issue, and such as would ordinarily elicit, or provoke a reply. They must be stated as of fact; for, as a rule, only facts, whether proved independently, or by admissions, can lie given in evidence to a jury. The rule is correctly declared in the following authorities : 1 Greenl. Ev. §§ 197, et seq; Fuller v. Dean, 31 Ala. 654; Bob v. The State, 32 Ala. 560 ; Campbell v. The State, 55 *29Ala. 80. The Circuit Court erred in admitting the evidence of the witness Long.
¶3The testimony is somewhat indeterminate, as to how the defendant came into possession of the money alleged to have been stolen. If the money was dropped or lost by Freeman, and found or picked up by the defendant, then, to justify a conviction, it is necessary that there should have been the felonious, intent contemporaneously with the finding or picking up ; andl unless the facts and circumstances in evidence convince the jury of this beyond a reasonable doubt, the defendant, on this hypothesis of the ease, can not be convicted. • This intent, however, need, not be proved by positive testimony, but may be inferred from the circumstances, if sufficient. On the other hand, if the defendant did not find or pick up the money, but topk_.it from Freeman’s person, or from any place where he had put it, ofTfbaniisTedTNvdi’ere he lay, then the taking was a trespass, and it is not essential to his guilt that he should ! have had the intention to convert it feloniously at that very ¡ moment. Acquiring it tortionsly, if he conceived and execu-¡ ted the purpose subsequently, to convert the property feloni- j onsly to his own use, thiiTwould constitute larceny.— Griggs v. The State, 58 Ala. 425 ; Clark’s Manual, §§ 940, 941; McMullen v. The State, 53 Ala. 531.
¶4The first charge asked and refused was correct, on one hypothesis of the case, but not on the other. It was rightly refused. The third charge was supported by no testimony, and was, therefore, abstract. The fourth charge does not assert a correct legal proposition.
¶5Neversed and remanded. Let the defendant remain in custody, until discharged by due course of law.