#### STATE *vs.*PINCKNEY WILLIAMS.

The possession of stolen goods is a circumstance to be left to the jury in estimating the guilt or innocence of the accused, and however slight it may be, the court cannot disregard it.

it is no violation of the duty of a Judge to speak of things as facts where they are treated as facts in the progress of the trial, and are not questioned by either side.

INDICTMENT for PETTY LARCENY and foi: TRADING WITH SLAVES, tried at the Spring Term, 1855, of Rockingham Superior Court.

The State introduced, as a witn'ess, Col. *3. B. Watt,*who testified that, on returning home from a journey on Monday evening, he learned that tobacco had been taken out of one of his barns: he went early next morning and discovered that a considerable quantity had been taken ; there having been a considerable rain on Sunday night, he plainly saw the tracks of two persons which he followed to' the plantation of his neighbor, J. *W.*Neal; he thence, in company with Mr. Neal, followed the tracks to the fence of th.e defendant, thence through his wheat-field to his house, finding on their way two leaves of tobacco. Before leaving the plantation of Mr. Neal, they made an examination of his slaves, and found that the shoes of two of these slaves, *Iverson*and *Henry,*exactly fitted the track, and upon being charged, these slaves confessed that they had stolen the witness’s .tobacco. On meeting with the ■defendant near his own house, the witness proceeded in these words: “ I asked him if he was aware that it was contrary to law to trade with negro slaves, for property which was their own, without a written permission from the owner or mana*195ger?” lie replied, “he did, and had not traded with any, he had quit that thing.” I then told him that the tobacco he got on Sunday night was my tobacco, and not the negroes’. lie said “he had got no tobacco Sunday night; that he could prove by some of his relations, who staid at his house on that night, that he was not out of his house that night.” “I then stated to him the evidence I had to satisfy my mind that he had my tobacco. I informed him that I had tracked the thieves from my barn to his house, and found two or more pieces of tobacco, inside of his premises, that I thought were mine;” to which he replied that “ he could track persons beyond his house, and that he had found a bundle of tobacco near his spring on Monday morning.” “ I asked him to let me see it. He brought it out, and I compared it with a sample which I had in my pocket, when he said, he thought it was my tobacco, but still denied getting any. I then told him that two of the negroes, *Iverson*and Ilenry, had confessed stealing it, and that they carried it to him and delivered it- to him at his kitchen, which he denied. I then told him that the boy Iverson said he was at the house on the first Sunday in May to get some liquor. To which he replied, “he did not get any.” I told him Iverson also stated he did not get any. I then said, “ you admit Iverson was here at that time? ” he said “ yes.” I then told him I would tell him all the negro said besides; he (Iverson) said defendant asked him if he had any tobacco to sell, that it was easy to get good tobacco and that he would give a good price for good tobacco; to which defendant replied that “ it was an infernal lie.” After talking with him some time, I said to him if I had thought I was to have any difficulty I would have brought an officer, and had him arrested and his premises searched, but I had supposed when he learned the tobacco was mine, he would give it up. ITe said “ if he had any tobacco of mine he would give it up.” Mr. Neal then asked him if he would let us see his barns. He said he would. I told him that was useless, for I did not know whether my tobacco was in his barns, or hid out; that I had no doubt he had got it on Sun*196day; that I was fatigued and hungry, and was going home, but that I thought the testimony was sufficient and should be compelled to prosecute him. Tie then asked Mr. Neal to go into the house and requested me to go. up the road with him; we went some hundred yards or so, and came to a barn in the woods, on the side of the road. Tie unlocked the door and opened it. I said *“*"Williams, that is my tobacco, pointing to a pile on the right of the door.” lie said “ yes, and that over there,” pointing to some which he had hung on sticks. We then sat down in the door and talked for some little time. He remarked to me that the negroes had told me a lie; for he did not see them that night; that they brought the tobacco and put it down by his barn, and that he got it the next morning. Ho said the boy Iverson owed his wife for making him a shirt, and was to pay for it in tobacco, but he supposed with his own tobacco, and had no idea they were going to bring so much. After some further conversation, w£ returned to the house when the defendant paid me for my tobacco and asked me not to prosecute him.”

In commenting on this testimony, the solicitor asked the jury how it was that the defendant knew whose tobacco it was, and that it was taken to his barn, and who took it there, unless he had some previous concert with the persons who took it, inasmuch as. he said he was not out of his house that night and did not see them.?

The defendant’s counsel asked the court to charge the jury that there was no evidence to sustain the count for petit larceny.

The court declined so to charge, but told the jury there was some evidence on that count, the force and effect of which they alone had to determine: that if they were satisfied that the defendant had seduced the-defendant’s slaves,, or either of'them, to take Col. Watt’s tobacco,, they should find him guilty; but if they were not so satisfied, they should acquit him on that count. In recapitulating the testimony, his Honor said to the jury “that it had been properly asked by the Solicitor how it was that the defendant knew who took the tobacco *197to his barn and whose tobacco it was, unless there had been some concert between him and the.slaves, Iverson and Henry, or one of them ?” To this charge the defendant’s counsel excepted.

Yerdict of guilty for petit larceny:, and' not guilty on the other count. Judgment and appeal.

*'Attorney General,,*for the State.

*Miller*and *Morehead, for*the defendant.

Bíttls, J.

The defendant, in his bill of exceptions, presents two objections to the proceedings on his trial, either or both of which, he contends, entitle him to have the verdict set aside and a *venire de novo*awarded. The first is, that the presiding Judge submitted to the jury the question of his guilt on the count for petit larceny, without any testimony to sustain it; and secondly, that the Judge expressed his opinion upon a fact in the cause, contrary to the inhibition of the statute upon that subject.

*We*are clearly of opinion that , neither objection is- sustainable.

It is very certain that, if *Gol. Wait,*the principal witness for the State, is to be believed, the tobacco was stolen on Sunday night, and, on the following Tuesday morning, was found in a barn of the defendant, of which he had the key. This was'of itself, as has been often decided, some evidence that the defendant was the thief, and required explanations from him to afford a satisfactory account how he became possessed of the stolen article-. Unfortunately for him, his account, while it tends to remove the- supposition that he took the tobacco with his own hands, makes it almost certain that he did if through the agency of Mr. Neal’s two slaves, Iverson and Henry. Among other circumstances of suspicion in his account, was that which is mentioned as having been particularly brought to the- attention of the jury by the Solicitor for the State-.

The remaining objection is, that the Judge violated the statute by the manner in which he noticed that circumstance. *198Now, with regard to that, the Judge could have erred in either, or both of two ways: *Fvrst,*by expressing his opinion that the fact was proved; but as to that there seemed to be no dispute, for there is not the slightest intimation in the case, that the veracity of Col. Watt was called in question, or that his testimony was, in any respect, incorrect. The Judge committed no error, then, in assuming to be true what the defendant himself did not question. *Secondly,*by calling to the attention of the jury, as material, a circumstance neither proving, nor tending to prove, the defendant’s guilt. We think the circumstance was material, and very material, to show that the tobacco was stolen by Neal’s slaves at the instigation of the defendant. He had said that he could prove he was not out of his house during the night in which the theft was committed, and that he had not seen the slaves that night; and yet, in another part of the conversation, between him and the witness, he stated that the slaves had brought the tobacco to his barn thatmight, and he had put it into it the next morning, he having acknowledged, as soon as he had opened the door of the barn, that the tobacco belonged to the witness: It was certainly a very pertinent question how he could have known all this, unless he had had a previous concert with one, or both of the slaves. In alluding to this, in his summing up to the jury, the Judge cannot, upon any fair construction of his charge, be understood as having done anything more than to call their attention to the circumstance, as one material and fit to be considered by them, in making up their verdict as to the guilt or innocence of the defendant. Indeed there was not only no impropriety in the allusion made by the Judge to the circumstance in question, but it was made his positive duty to do so, by the position taken by the defendant’s counsel — that there was no testimony to be submitted to the jury upon the count for larceny, and by his asking his Honor so to instruct them. In response to that prayer, he was bound, if there were such testimony, to state what it was; and he did so, remarking that it was for them alone to determine the force and effect of it. See *McRae*v. Lilly, 1 Ire. 118.

*199Upon a full consideration of his case, we cannot find anything to show that the defendant was not fairly tried and fairly convicted, and he must abide the consequences.

Per CueiaM. . Judgment affirmed.