By the Court.
Warner, J.delivering the opinion.
Two grounds of error have been assigned upon the record to the judgment of the Court below.
First, that the Jury were not impannelled as required by law.
Second, that the verdict of the Jury was contrary to law and evidence and the charge of the Court.
[1.] The 9th section of the Act of 1816, which is amendatory of the Act of 1811, provides, that the Justices of the Inferior Court, or a majority of them, when notified of the commitment of a slave for a capital offence, shall cause to be drawn, fairly and impartially, from the Jury box, the names of persons subject to serve as Jurors, not less than twenty-six, nor more than thirty-six JurorSi who shall be summoned to attend at the time and place *485pointed out for the trial of such slave by the Inferior Court. Prince, 792. On the trial of the slave, Alfred, only twenty-three Jurors were impannelled; but the reason why the legal number was not impannelled, the record states to be, that the slave was represented in Court by his owner, J. W. M. Berrien, Esq. and Thomas Berrien, as his counsel, who waived the impannelling the legal number of Jurors, and agreed that the first twelve Jurors answering to their names should try the cause. By the 9th section of the Act of 1811, of which the Act of 1816 is amendatory, it is provided, the owner or manager of the slave, shall have the right of challenging seven of the number of Jurors summoned, and the Court five on the part of the State. Prince, 791. The argument for the plaintiff in error is, that the slave being property, and supposed to be merely passive, the Court is bound to see that he had the legal number of Jurors summoned for his trial, and that his owner could not waive his right, as secured by law, to have the twenty-six Jurors impannelled.
The answer to thatargument is, that the Legislature most clearly contemplated that the owner or manager of the slave would protect his own interest and the rights of his slave; for the right to challenge seven of the Jurors, is expressly given to the owner of the slave. Not only the interest which the owner has in his slave, but his personal attachment for him, will always prompt him to be vigilant in securing and protecting all the rights of his slave ; and, as is too often the case, as we all know, the just penalty of the law is defeated in consequence of such interest and attachment. Here, the owner of the slave thinking, doubtless, it would be for the interest of his slave, as well as for his own interest, to take the first twelve on the Jury list, waived the impannelling more than twenty-three, and we think he had the legal right, under the law, to make such waiver.
[2.] With regard to the second ground of error, it has been urged upon us, that a new trial should be granted, because the evidence was not sufficient to authorize the Jury to have found the slave guilty of the offence with which he was charged. Had we been the Jurors who tried the cause, we might have drawn a different conclusion from the evidence than they did, and felt it to have been our duty to have found the slave not guilty; but there was some evidence of which the Jury were the exclusive judges, and they, in the exercise of their judgment, have found him guil*486ty, and we do not consider that we have the legal power and authority to control their verdict. We are free to say, that we have scrutinized this record very closely, to find a legal reason for setting aside the verdict in this case, inasmuch as the evidence is not :as clear and satisfactory to our minds as we could wish, to authorize a conviction. In reply to the argument pressed upon us on the ground of humanity for the slave whose life is about to be forfeited by the judgment which, under the law, we feel bound to render in this case, it will be sufficient to remark, that we are not clothed with the pardoning power; the power to pardon is vested in another branch of the Government, by which, we cannot permit ourselves to doubt, it will be properly and judiciously exercised.
Let the judgment of the Court below be affirmed.