after stating the case, proceeded : We can see no error in the admission of the testimony objected to, espe*641cially when taken in connection with the charge of his Honor to the jury, for he instructed them that before they could consider the testimony of the experts as to the analysis of the bread, flour and dough at all they must be satisfied beyond a reasonable doubt, that the bread, flour and dough analyzed were parts of the same of which deceased ate, and that caused her sickness and death, the same that Emperor Rouse gave to Dr. Primrose, and that it had not been tampered with in any respect, nor any poison placed in or upon it after it came into the hands of the witnesses and before the same was analyzed ; and the jury may consider, and it is their duty to consider, that the bread, etc., was not sealed up, but was placed in the hand-satchel and there remained sometime before it was analyzed.”
In other parts of his charge the presiding Judge had fully left to the jury to pass upon the truth of all the evidence of the witnesses, and there was no exception taken to the charge-.
The prisoner’s counsel presented the following prayer for instruction, which was declined, and the prisoner excepted :
“ 1. That in that there is no evidence to show where Susan Croom procured the flour and bread which Emperor Rouse testified that he delivered to Dr. R. S. Primrose, the jury shall not consider the evidence admitted on this point.”
By a careful perusal of the testimony as set out in the- “ case ” we are unable to find anything to indicate that Susan Croom, another witness, had any connection with the finding of the flour, bread, etc., by Emperor Rouse, as testified to by said Rouse, and therefore we must conclude that the presiding Judge was warranted in declining to give the instruction asked.
The day after the jury had returned the verdict set out in-the record, which was in the presence of the prisoner and his counsel, the prisoner’s counsel moved the Court to set the verdict aside, and stated that they proposed to offer the *642affidavits of some of the jurors who tried the case, as a ground for such motion.
To this the Court remarked that the uniform custom with the courts of our State was not to hear a juror attack or explain the reasons for his action" while serving as a juror, and that the action of the Court upon said motion was purely discretionary. To this ruling the defendant excepted. Thereupon the defendant asked leave to file, and did file, an affidavit of five of the jurors that the State had failed to prove that the defendant had put the poison in the bread that deceased had eaten, and that they were not satisfied of his guilt; that they agreed to the verdict of “guilty” of murder on condition that the prisoner be recommended to the mercy of the Court, and that they thought such recommendation would save the prisoner from the death penalty; that they were led to' such belief from the fact that several days before, a jury, in a case in which a defendant was convicted of carrying a concealed weapon, was informed by the Judge that when they recommended the defendant to the mercy of the Court, that such recommendation would be considered; that the jury remained out all night, the room in which they were was small, and that these facts hastened their verdict.”
The Solicitor filed the counter-affidavit of five other members of the jury, which is not necessary to be here set out.
“The Court, in its discretion, declined to interfere with the verdict, being fully satisfied that the defendant had had a fair and impartial trial at the hands of the jury, defended as he was by three able, zealous attorneys of this Court.” The prisoner excepted.
We may consider together the two preceding exceptions, based upon the refusal of the presiding Judge to set the verdict aside upon the motion of prisoner’s counsel, and the affidavit offered in support of the motion.
*643It was said, in State v. McLeod, 1 Hawks, 344, that “ As to the misconduct of the jury it has been long settled, and very properly, that evidence impeaching their verdict must not come from the jury, but must be shown by other testimony.” This has been followed by an unbroken line of decisions, in both criminal and civil actions, down to Hinson v. Powell, 109 N. C., 534, to the same effect; notably in the case of State v. Smallwood, 78 N. C., 560, where it is said by Bynum, J.:
“1. AVhen a motion is made in the Court below to set aside a verdict upon the ground of improper conduct in the jurors, and the 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 such motion is designed to be submitted to their revision, the facts must be ascertained by the Court below and spread upon the record. That has not been done in this case. State v. Godwin, 5 Ired., 401; Love v. Moody, 68 N. C., 200; Rineheardt v. Potts, 7 Ired., 403.
“If the motion for a new trial is based, not upon the misconduct but upon the mistake of the jury in the Court below, the Supreme Court cannot take notice of such mistake, whether they find against the facts or the law, because the jurisfliction of this Court is confined to matters of law adjudged by the Court below; and to ascertain what matters of law were so adjudged, we look to the case stated. This Court corrects errors of law committed by the Judge below, and not those committed by the jury. For errors of the latter kind, the remedy is for the Court below to grant a new trial. State v. Gallimore, 7 Ired., 147; Long v. Gantley, 4 Dev. & Bat., 315; Goodman v. Smith, 4 Dev., 459; Reed v. Moore, 3 Ired., 313.
“2. Misconduct on the part of the jury, to impeach their verdict, must be shown by other testimony than their own, This has been long settled for the most convincing reasons, *644which will readily suggest themselves to all minds at all familiar with the administration of justice through the medium of trial by jury. State v. McLeod, 1 Hawks, 344.”
To meet the earnest contention of the prisoner’s counsel that the presiding Judge, having permitted the affidavits to be filed, ought to have found the facts and spread them upon the record, it appears that the affidavit offered alleges, or was intended to allege, that the affiants had agreed to the verdict of guilty through mistake in their understanding of the effect of the verdict. In this event, as has been said above, the Supreme Court cannot correct errors committed by a jury; this is the province of the Judge below, and therefore it was unnecessary for his Honor to find the facts upon the affidavits. But it might well be held that the affidavit, if we were at liberty to consider it, alleges misconduct upon the part of the five jurors making it, for if they were not satisfied by the evidence of the guilt of the prisoner, it was a gross wrong in them, for any consideration of personal inconvenience, to compromise with the other members of the jury and agree to a verdict of guilty, with a recommendation to mercy, in the hope that the life of the prisoner would be spared at the cost of a long imprisonment. If they were not satisfied of the prisoner’s guilt, the only verdict they could conscientiously render would have been one of not guilty. And if the ground of the motion was the misconduct of the jurors, it should, as we have seen, have been based upon other testimony than the affidavits of the jurors who alleged their own misconduct, for they cannot be beard, and no facts could be found by the Judge below upon their affidavit.
The prisoner’s counsel excepted because the jury were not polled upon the rendition of their verdict, and further, because the jury were not asked to explain their verdict. It appears, by the case stated, that the prisoner and his counsel were present at the rendition of the verdict, and did not ask *645that the jury be polled, nor did they ask the Court to interrogate the jury concerning the verdict.
It was not essential to the validity of the verdict that the jury should be polled; it was the privilege of the prisoner to have it done if he desired. State v. Jones, 91 N. C., 654; State v. Toole, 106 N. C., 736. And it would not have been proper for the Judge below, even if requested to do so, to have questioned the jury upon their verdict.
The verdict was guilty. The recommendation to mercy was not a part of the verdict, but an expression of sympathy for the prisoner and of a desire on the part of the jury that his punishment might be mitigated from' the extreme penalty of the law. Such recommendations, even in capital cases, are not unusual, and in this case it was not, in our opinion,calculated to put the presiding Judge upon inquiry whether the verdict was unanimous. In the able and earnest argument of the counsel for the prisoner the precedent is admitted, but we are exhorted to vary from it in this instance and establish a new one for our future guidance. The opinion to which we are referred in support of this plea for a new precedent, in State v. Holt, 90 N. C., 753, upon examination, will be found to be a manly assertion of the right of trial by jury without impaii ment by novel refinements, and an admonition to stand upon the ancient ways lest we should establish precedents, the result of whicli may “ in some emergency overturn principle and subvert the rights of many people.”
We find ourselves concluded by the authority- of an established and long-settled rule based upon the wisest reasons of public policy, that a juror should not be permitted to impeach his owfi conduct in the rendition of a verdict. The result of a departure from the old rule would unsettle other important principles, protract litigation, and weaken the public regard for the ancient and well-tried methods of trial by jury.
We cannot assent to the suggestion that the verdict of the jury was not in accord with the spirit of the Constitution *646(Article I., § 13) that “No person shall be convicted of any crime but by the unanimous verdict of a jury.” The verdict was unanimous; it was rendered after long consideration; it was warranted by the evidence, and while public policy forbids that it shall be attacked in the manner proposed, the all-sufficiency of the law most wisely provides relief in worthy cases, where, by reason of human imperfection, there has been a miscarriage of justice to anyone’s prejudice by the exercise of executive clemency.
Appreciating the gravity of the consequences of our conclusions in this matter, we have given it the most serious consideration, and having carefully examined the record, we are constrained to say there is no error. The judgment must be Affirmed.