delivered the opinion of the court.
At the March term of the Pike Circuit Court for the year 1893, Henry Hall, the appellant, was indicted for the murder of his brother, Randolph Hall, and *323the jury who tried the case fixed the punishment at death.
We have- seldom read a record oí conviction where there were less palliating circumstances in behalf of the accused than this case presents. He filed an affidavit for a continuance on the ground that his brother had threatened to take his life, and had,- on more than one occasion, assaulted him — facts- that could be established by the absent witnesses who had been summoned. The court refused the continuance and allowed the statements contained in the affidavit as to what these absent witnesses would state, to go to the jury as evidence. On the trial he established, by a number of witnesses who were before the jury, that these threats had been made, as well as the assault upon him, by his deceased brother, with a knife, some time prior to the killing. There can be no doubt that both the brothers, when under, the influence of liquor, were violent and bad -men, and that when their passions were inflamed by liquor,- they respected the rights or feelings of no one, not even their parents, and this murder was the result of a drunken debauch when in a game of cards the one brother had won the money of the other.
There was no one present when the murder took place but the little daughter of the deceased, of the age of twelve years, and a brother of the two men, who were ready to kill each other at any time when drunk, and that brother was so stupefied -with whisky as not to be able to give- any account of the shooting, except that the shooting aroused him from his stupor, and he saw one brother standing with his *324pistol in hand and the other on the floor, shot twice through the head. The little girl seems to have testified with much intelligence, and is corroborated in many particulars. She says that her father (the dead man) and his brother (the accused) were playing cards in the yard or on the ground fronting the building in which the accused kept a grocery; that they were betting on the game, and it commencing to rain, they left the yard, going into the grocery, where a cloth was placed on a box and the two renewed the game, the accused sitting in a chair and the deceased on the floor; that her father won one dollar of the accused, when the latter handed it over to him, and then pulled his pistol, shooting nim twice in the head. She heard no quarrel between them. The appellant’s statement is that he refused to play with his brother, because he was • afraid of him, and told him that he had heard he had threatened to' kill him, when the deceased replied that they could play and their other brother could keen the gafne; that they played until it commenced raining, when they went into the grocery and did not play any more; that the deceased became boisterous, and he gave him a dollar to leave; that he put the dollar in his pocket and then made at him with something like a knife, threatening to take his life, and he shot him to protect his own person, believing that his brother would kill him.
The brother, who seems to have been in a stupid condition when the shots were fired, says that they did play in the house, and he went off to sleep. The accused also states that the little girl was not present *325at the time, but had gone to the spring after water, when it is shown by others that she had brought the water before the rain began to fall. The' deceased, at the time he was shot, had no weapon. A small barlow knife was found in his pocket unopened, and it is manifest that the murder was the result of a drunken debauch, and that the shooting took place as the little girl s'ates. If all the threats .mentioned in the affidavit had been admitted as true, and many were proven on the trial, the accused was guilty of the awful crime of murdering his own brother, with no excuse whatever. He was given the benefit of all the law to which he was entitled. There was an instruction for murder, one for manslaughter, and one that he had the right to defend himself against the assault, if any, made upon him by the deceased. It is insisted that he was in his own castle when the shooting took place, and that he was not compelled to flee, or to resort to means of escape that were apparent. Such an instruction should not have been given. This was a grocery, to which persons were invited. His brother had the right to be there. There was no assault upon him with a deadly weapon. The deceased had only a small knife, and that in his pocket. The history of the case, as stated by the accused, the jury refused to believe, and in our opinion, after a careful review of the testimony, it was a murder without palliation or excuse.
After the jury had returned its verdict in this case, and when the accused was asked if he had any reason to assign why judgment should not be pronounced against him, he responded by saying: That the judge *326then presiding — the Hon. John S. Patton — was not the Judge of the Pike Circuit Court, for the reason that the act of the Legislature regulating the election of circuit judges, &c., in the year 1899, and by virtue of which the said Patton was elected, and now holds his office, is unconstitutional and void ; that the requisite constitutional number of votes was not cast in favor of said law at the time of its passage; that different amendments were concurred in by the Senate after it came from Ue House, and no yeas' and nays entered on the Journal at its passage, as the Constitution requires, and that no emergency clause was appended to the bill.
This court in the case of the World’s Pair appropriation (Norman, Auditor, v. Ky. Board of Managers, &c., 93 Ky., 537) discussed this question, but in our opinion the case before us is not to be governed by the doctrine of the majority opinion in that casé. The Constitution requires that the election of all State officers shall be held on the first Tuesday after the first Monday in November, and this court judicially knows that circuit judges were elected in this State as provided by the Constitution on Tuesday after the first Monday in November, 1892, and that John S. Patton was elected in the district in which he presides, embracing the county of Pike. This was a general State election, and directed to be held by the Constitution, and no emergency clause was necessary, as the provision of the organic law is imperative, and no legislative act could alter its provisions or fix the time for the election on any other day or year, and the omission of the Legislature to *327comply with this constitutional provision will not be allowed to disfranchise the voters of the State, or ■deprive its citizens or the tribunals created by the ■Constitution from enforcing the laws of the land. We have for this reason not consulted the Senate Journals on the question made.
Judgment affirmed.
Judge Hazelrigg not sitting.