#### THE STATE vs. TOBIAS GODWIN.

Where a motion is made in the court below, even in a capital case, to set aside a verdict, upon the ground of improper conduct in the jurors, or other mat. ters extrinsic of the record, and this motion is founded on affidavits, the Supreme Court will not look into the affidavits. They can only decide upon the record presented to them, and, therefore, if sueh motion is designed to be submitted to their revision, the facts must be ascertained by the court below and spread upon the record.

Where, in a capital case, when one of the jury, on their coming into court and being polled, said “ that when he first went out, he was not for finding the prisoner guilty, but that a majority of the jury was against him, and that he then agreed to the verdict of guilty, as delivered in by the foreman," and when, being again asked, what is your verdict now, he replied, “ I find the prisoner guiltyHeld that there was no objection in law to the verdict.

■yhe case of the Slate v. Miller, 1 Dev. & Bat. 500. Slate v. Ephraim, 2 Dev. & Bat. 163; and State v. Lnjtle, 5 Ired. 58, cited and approved.

Appeal from the Superior Court of Law of Johnston County, at the Spring- Term, 1845, his Honor Judge Dick presiding.

The prisoner was tried for murder; and, upon the return of the jury into court, they were polled at the prisoner’s request. Eleven of them, each for himself, answered simply .that he found the prisoner guilty. The remaining juror answered, that when the jury first went out he was not for finding the prisoner guilty, but that a majority of the jury was against him, and that he then agreed to the verdict as delivered in by the foreman. He was further asked, “what is your verdict now?” and he replied, “I find the prisoner guilty.”

A motion was then made for the prisoner to set aside the verdict, upon the ground, that it thence appeared, that the jury had agreed to decide according to the majority; and upon the further ground, that the constable, who had the charge of the jury during their retirement, left the jury for the space of half an hour, and thereby afforded an opportunity for the j,ury to be tampered with..

*402In support of the latter ground, it is stated in the record, that the prisoner read his own affidavit and those of two other persons, which stated, that the jury room opened from the Court room, and that the jury retired about 9 o’clock at night and the judge then left the bench: that the court room was crowded with persons, while the jury was out, who were talking about the case, and that the son-in-law of the deceased and other enemies of the prisoner were often near the door of ihe jury room •, and that it was several times opened, but by whom the witness could not state; and that the officer, having charge of the jury, was several times absent from the door for some minutes at a time. The prisoner swore, that he believed there was opportunity to tamper with the jury, although he could not say, that any person actually attempted to do so.

On the other side the constable himself swore, that when the jury retired he immediately locked the door of their room, and that, until the jury came out to deliver their verdict, it was not opened, except to enable him to supply the jury with water and candles, and then, only as long as was necessary for those purposes That he generally stood at the door, as well as kept it locked ; but that he left it, when the jury wanted water and candles, and went for them ; and that he also once went to the Judge to ask permission for the jury to have food: That whenever he left the door, he took the key with him, after locking the door; and that he believed itfimpossi-ble, that any communication could have been had with the jury through the door.

The record states, that the court refused the motion and passed sentence of death on the prisoner, who appealed. The presiding Judge ordered the affidavits, which had been read to the court-; to be sent up as part of the case.

Attorney General for the State.

Saunders for the defendant.

Ruffin, C. J.

It is not in the power of this court to look into tfié affidavits, or, at least to act on them. One would . think this must be understood, upon a moment’s reflection on *403the nature of the jusisdiction of the court. In matters of common law, it is strictly a court of error and can • only review the matters of law. We therefore cannot go out of the record, or pay any regard to affidavits ; for the evidence forms no part of the record. A record is constituted of the pleadings, the acts of the parties in court, and the acts and doings of the jury and court thereon. If .advantage is sought of any extrinsic matter, which occurs at the trial or in the course of proceeding, it must be put into the record, as a fact, or be stated in an exception, and not left to be collected by this court upon evidence. This evidence is directed exclusively to the judge, who tried the cause; and his determination on it is conclusive. He ought not to state, therefore, the evidence submitted to him, but his judgment as to the fact itself, which the evidence was offered to establish. It is true, that, in an exception to an instruction to the jury, the evidence is set forth ; for that is necessary, that it may be seen that the' instruction was not upon an abstract question of law, but on one applicable to a state of facts, which might, upon evidence, be hypothetically assumed; and, then, the verdict, in accordance with the instruction, affirms the faets to be as supposed. In such a case, both the facts and the law are distinctly found in the record by the several proper persons. But on occasions like the present, the evidence is addressed to the judge, and he is to determine as well the matter of fact as of law. His decision in respect to the latter point only is subject to review.We can no more interfere with his decision upon the question of fact before him, than we can with the decision of the jury upon an issue. When, therefore, a motion is made to vacate', a verdict for certain alleged causes, the first thing tain, whether the alleged causes really exist;, facts be found, no question of law can arise; and,'' is confined to the consideration of the matter of ! can in such a case do nothing. For there is no I the record to impeach the verdict, which is appa^ lar; and, therefore, acting judicially, we must asl the application was unsupported in point of fact, though we *404might, in our private judgment, think that there was evidence’ before the judge, on which he might or ought to have found the facts, that the verdict was given according to the opinion major¡ty. of the jury, lor that the jury was tampered with, or might have been.

We find ourselves constrained to make these extended observations, because the point may in some cases be of immense consequence, and it would seem, that our repeated attempts, hitherto to make ourselves intelligible, have not been as successful as we had hoped. Lord Hale, 2 P. C. 306, says, if a juror be guilty of misconduct, and this appears by examination, “ the judge, before whom the verdict is given, may record, the special matter/1 or,- as he says in the next page, “ he may endorse it on the record or postea,” and thereupon the' verdict shall be set aside. In Miller's case, 1 Dev. & Bat. 500, both of the judges, who delivered opinions, referred to' those passages, as containing the proper directions as to the mode of proceeding, and declared their opinion, that if the judge, who tried the cause, had caused the proofs to be annexed to the record, (as here) this court could not examine them, in order to determine the fact, but that it was absolutely necessary that it should be found in the record. In Ephraim's case, 2 Dev. &. Bat. 163, the same positions were repeated as explicitly as possible, and the court refused to consider the evidence. Since that time the facts have generally been stated by the judge, as in Lytle's case at the last term, 5 Ired. 58, and others ; and we express the hope, that hereafter, that course will be invariably adopted.

The conclusion thus announced, though unavoidable, would be a source of sincere regret, if, in our opinion there was really any ground for the prisoner’s motion. But if we could look into the affidavits, we should be obliged to say, that they present no reason, either of fact or law, for disturbing the judgment.

There is nothing to raise a suspicion, that the verdict was not the result of the conscientious and unanimous conviction of the jurors. One of them hesitated at first, as any man *405may upon so solemn a question ; but, upon consultation with his fellows, and deliberation, he united publicly and of his own accord in the verdict.

So far from establishing improper conduct in the jury;' none' is even imputed to them, it is only said, that the jury was-left in such a situation by the constable, as to afford an opportunity for tampering with them. But that was only bare’ suspicion, and seems to- have been wholly unfounded. The' jury was kept constantly together, and, likewise, separate from other persons, by being locked up in the usual jury-room in the court house by the constable, who remained at the door except for short intervals, during which he was absent for the' purposes of the lawful accommodation of the jury,- and to carry to the judge a request from the jury. If any thing improper had occurred during those absences, the officer might have been punished. But his constant presence at the jury-room, was not requisite to the validity of the verdict, seeing that he kept the jury together the whole time, and took carethat' no one else had or could have access to them.

The court perceives no error in the record; and the usual’ certificate must be sent to the Superior Court to that effect.

Beb. Curiam, Ordered to be certified accordingly.-