
    No. 8588.
    The State of Louisiana vs. Victor Eloi.
    Where a juror is challenged by the accused as incompetent on account of a defective memory, and the judge after examining the juror decides that he is competent, such ruling being on a matter strictly within his discretion will not be disturbed on appeal, unless the error is palpable. Judgment affirmed.
    APPEAL from the Criminal District Court for the Parish of Orleans. JRoman, J.
    
      J. G. JSgan, Attorney General, for the State, Appellee:
    1. This Court will not review the opinion of the Jndge a quo in determining whether a juror is competent or not because bis memory is defective $ this is a matter resting entirely in. the discretion of the lower court.
    2. It is a fixed and deliberate opinion as to the guilt or innocence of the accused which disqualifies a juror; but not such an opinion as will readily yield to evidence. 32 An. 1098 and 1241; 33 An. 890; 34 An. 191; 14 An. 462 and 673 ; 23 An. 148; 29 An.642; 27 An. 692; 6 An. 653; 4 An. 505; 11 An. 607; 3 B. 535; Burr Trial, Yol. 1, p. 416.
    
      L. Marrero, for Defendant and Appellant:
    1. Jurors being the sole and exclusive judges of the law and the evidence musthave sufficient memory to remember the testimony, in order to arrive at a just, intelligent and legal verdict. "Wat. & Grab, on New Trials, Yol. I., p. 62; Yol. II., pp. 272, 273, 286; 1 Ala. Bep. 302.
    
      2. Persons totally or partially deprived of memory or understanding, are inoompetent to serve as jurors, or witnesses. Aróla. P3. and Prao. 468; Hartford vs. Palmer, 16 John liop., 143.
    3. Persons to be jurors must be oorapotent and intelligent and in the full possession of their mental faculties. Dunlop’s Laws of Ponn., pp. 612, 622, Seo. 85; La. Acts 1880, 54, p. 52; Hogshead vs. State, 6 Hump. Hep. 50; Baxter vs. Poople, 3 Graham’s Pep. 368; See Statutes of La., N. Y., K. J., Mass., Maine, Ohio, Mich., and Codes of Iowa, Virginia, oto.
    4. Jurois aro forbidden to take witb them books, papers, documents or notes, when they retire to deliberate on their vordiot; they must rely on their memories. 1 Chit. Arch., 250; Gra. Prao. 272, 274; 2 Hale’s P. C. 300, ét seq.; Wat. & Grab. 67; The King vs. Sutton, 4 Maulé & Sel. 532.
   The opinion of the Court was delivered by

Todd, J.

The defendant was indicted for murder, was tried and convicted, the jury returning an unqualified verdict of guilty, and from a sentence of death has n'ppealed.

There ivas no motion for a new trial or in arrest of .judgment filed in tho court below. We find in tbe record, however, three bills of exceptions to several rulings of tbe Judge.

The first bill was taken to a ruling as to the competency of a juror who, in answer to a question asked him on his voir dire, said ho liad a bad memory, and was challenged for this cause. The challenge was overruled.

It appears from the bill, that after the statement made by the juror touching his defective memory, he was further interrogated by tho Judge and, after such examination, the Judge came to the conclusion that tho memory of the juror was sufficiently good to render him competent. This was a matter of fact which, was peculiarly within the province of the Judge to decide and strictly within his discretion. Tho juror was before Mm and opportunity was afforded to test his capacity in the respect mentioned and judge of his competency. And whilst we fully concede the force of the authorities cited by tbe counsel, prescribing the qualifications for jurors, among which are sound mind and memory, yet, under our settled jurisprudence, this Court will not interfere with a ruling of a Judge of the first instance on a question of this kind, unless that ruling is manifestly erroneous, which we do not find to be tlio ease in this instance.

The other bills of exception in the record are waived in the argument of counsel and, therefore, need not be considered. We find no reason to disturb tho sentence ax>pealed from and it is, therefore, affirmed, with costs.  