#### STATE *v.*JOHN W. SHAW.

Although being found in the possession of stolen goods, after a certain length of time, does not create a presumption of the possessor’s guilt, yet, it is a fact that may be considered by the jury, with the other facts of the case. Acts which would constitute *aiding and abetting*in grand larceny, will justify a conviction for petit larceny, when that is charged.

If a Judge charges substantially according to law, it is sufficient.

This was an INDICTMENT for petit larceNY, tried before SatwdeRS, Judge, at the last Uockingham Superior Court.

There were several witnesses examined in support of the prosecution. The prosecutor, *Isaac*Thaolcer, said that he had the bar of iron in his .shop on the 20th of November; that it was then about nine feet long; that, on the next morning (21st,) it was missing; that he had a white man and four slaves at work in the shop; that he found the iron on the 13th of December; that witness claimed the iron, when defendant said it was his own, and that he had bought it from Nankin and McLean, that fall twelve months before. Prosecutor returned on the next day, with a magistrate, and swore to the iron, which was then but four feet long, with a mark of “ "W". *441J. Me.” on it; that be bad purchased tbe iron of William J. McConnell. Defendant, on this occasion, again asserted that tbe iron was bis, and that be had got it from Eankin & McLean. A week after that, be told the magistrate that be bad got tbe iron from ¥m. J. McConnell.

Another witness swore that defendant told him be got tbe iron from Bell.

¥m, J. McConnell testified that be bad let the prosecutor have iron of that description, but bad not let the defendant have any.

Eankin testified that be bad no recollection of letting the defendant have any such iron.

Tbe counsel for tbe defendant insisted that, according to tbe case of the *State*v. Williams, tbe finding of stolen property after-twenty days from tbe time it was stolen, in tbe possession of any one, raises no presumption of guilt, and asked tbe Court so to charge.

Tbe solicitor admitted tbe principle, but argued that tbe *finding*was a fact to be considered by the jury, with tbe other circumstances of tbe case.

Tbe Court charged tbe jury “ that the State had first to prove that tbe iron bad been lost, and stolen by some one.

“ Secondly, that tbe iron found in tbe possession of tbe defendant was that of tbe prosecutor ; that if tbe evidence failed to satisfy them of tbe loss, identity, and taking of tbe iron, or either of them, their verdict should be for tbe defendant; that tbe State was bound to satisfy them that tbe defendant bad, himself, taken tbe iron, or procured it to be done; that tbe defendant’s counsel said there was no evidence of this, and if the jury believed be got the iron from Bell, or the negroes, be could not be convicted ; that there was no direct evidence, either of tbe procuring, or of tbe getting from any other person ; that as tbe iron was found in tbe possession of tbe defendant more than twenty days after it was lost, this was no evidence, in itself, of guilt, but might be considered as a fact, in connection with other circumstances, such as bis having made different statements in relation to the iron, and from *442whom be got it — that is, if be had made such statements ; that the cause had been argued at great length, but the testimony was simple and in a nut-shell — had the loss and identity been proved ? — did the defendant steal the iron, or procure it to be done ? or had he got it of another after it had been taken *%*that if he stole the iron himself, or procured it to be done for him, they would convict: that if he received the iron from another who had stolen it, knowing it to be stolen, they would acquit; on this they would determine from the whole testimony in the cause. ”

The counsel, for the defendant, asked the court to charge as to rational doubt.

In reply, his Honor said “ this was not a case of murder, still the jury should be satisfied, to a reasonable certainty; the jury could not balance the testimony, and say which scale preponderated ; the State had to prove the defendant guilty; otherwise he was entitled to an acquittal.” Defendant excepted.

Yerdict, “guilty.” Judgment; and appeal by the defendant.

*Attorney General,*for the State.

*McLean*and Bailey, for the defendant.

Nash, C. J.

We see no error in the charge complained of. The defendant is indicted for petit larceny. Several exceptions were taken to the charge. Eirst: The Court was asked to instruct the j ury that twenty-three days having passed, between the time of the iron being missing, and the finding it in the possession of the defendant, the law raised no presumption that the defendant had stolen it. The case stated that this was admitted by the State, but it was claimed that the circumstance of the finding was a fact to be considered by the jury, with the other circumstances. The latter part of the exception, that the finding was left to the jury, by the court, as a fact, is not complained of; but the defendant complained that his Honor said nothing about the presumption. It was not necessary. The State, by its officer, admitted that the finding, after such a lapse of time, created no presumption in law of the stealing *443by the defendant. The point of law was not controverted, and therefore, did not require a specific charge. The second exception is substantially embraced- in the first. As it was admitted, that from the circumstances, no presumption arose against the defendant by reason of his possession, we cannot perceive the propriety of his Honor being more precise than lie was, nor can we see that more precision would have benefited the defendant. The fact was left to the consideration of the jury, who alone would judge of its .bearing and effect

The third exception is upon the subject of rational doubt. In the charge, the jury were instructed that this was not a capital felony, but that the State was bound to satisfy them that the defendant had himself taken the iron, or procured it to be done. In immediate response to the prayer, his Honor told the jury the testimony was simple and lay in a nut-shell; and after calling the attention of the jury, in a summary manner to the evidence, concluded by saying this was not a case of life and death, and that the jury ought to be satisfied, to a reasonable certainty, of the defendant’s guilt. In the argument some criticism was indulged in, as to the meaning of the words, “ reasonable certainty. ” The terms are evidently used, in contradistinction, to absolute certainty. If the charge of a Judge is to undergo grammatical criticism, he is entitled to any benefit to be derived from it. What is “ certainty ? ” Mr. Walker says *“*certainty is being free from doubt”- — reasonable certainty is the being free from reasonable doubt. The Judge did charge substantially, as asked for. It has been repeatedly decided by this court, and during this term, that a Judge is under no obligation to use the language of the counsel in replying to a required charge, provided he does it substantially. In liis charge, the Court instructed the jury, that “ the State was bound to satisfy them, that the defendant liad taken the iron himself, or procured it to be done. ” It was objected by the defendant’s counsel, that there was no evidence to show that lie had procured it to be done. Without investigating the evidence to see whether there was no evidence ujion that point, it is sufficient to say, that if there was none, it cannot *444affect the decision of the case. In petit larceny, there are no aiders and abettors; all are principles, who are concerned in the felony; whether therefore, the defendant took the iron himself, or procured another to do it for him, he was alike guilty. The charge, in the indictment, is that he stole the iron, and there can be no doubt, that proof, that he procured it to be done, would have sustained the charge. It was perfectly immaterial in which way the felony was perpetrated; and the charge in this particular, was intended to show the jury that fact. Eor this reason, it cannot be said, justly, that the Court charged the jury upon a hypothetical case. It is also said that the Judge violated the act of 1796' — directing the manner in which a Judge should deliver his charge. The expression that the case lay in a nut-shell, is as enigmatical as to whom the victory in the contest® belonged, as was the Delphic reply to Pyrrhus when seeking to know if he would be successful in his contemplated war with Rome; the answer was *“*a mighty empire will be subdued.” No one could tell, from the expression, that the Judge thought the defence was successful, or that it had failed.

There is no error; and this opinion will be certified to the proper court.

Pur CuriaM. Judgment affirmed.