Opinion op ti-ie Court by
Judge HobsonAffirming.
Beach Hargis shot and killed his father, James Hargis. ,He was indicted for murder, and on a trial before a jury was found guilty as charged; his punishment being fixed at confinement in the penitentiary for life. The court entered judgment on the verdict, and he appeals.
The first question arising on the appeal is in regard to the refusal of the regular circuit judge to vacate the bench. The affidavit filed by the defendant in support of his motion that the regular judge should retire from the bench, and that a special judge should be appointed, is- as follows: ‘ ‘ The defendant and affiant, Beach Hargis, states that the judge of this court, Hon. James P. Adams, will not afford him a fair and impartial trial, and will not impartially decide an application for a change of venue in this case, and that said judge is and has been a bitter partisan Republican and has an unkind and prejudicial feeling against the defendant and all the family of the Hargises. He says: That for a number of years preceding this time there existed in this county a deadly enmity and feud between the Hargis family and its friends, he and his father being among the number, and others of the opposing political party, and those whose tendencies and sympathy was with them, he and his father and the Hargis family being Democrats, and those opposing them being Republicans, or persons who sympathized with them. That many in*585dictments were found against his father and others and many trials had, and that at the time of his father’s death that enmity and unfriendliness existed. That the Plargises were charged with being responsible for the death of various persons, and a number of said indictments were found against them, charging them with conspiracy in the murder of a number of persons who had been killed.
He says: That the Hargises, especially his father and himself, to the best of his ability, were active Democrats and active workers for that party at the polls. That during the time aforesaid the said Judge Adams was a candidate for commonwealth’s attorney, and lie and his father actively worked against him. That said Adams being defeated in his race, on the face of the returns, instituted a contest which was very bitter, and in which his father and others were charged with partisanship and illegal conduct. That after this the judicial district was changed by legislative act, and said Adams, having won his contest, became the commonwealth’s attorney in the district as it is at present constituted, and prosecuted the Hargises, his father among others, with great activity and bitterness. That whilst, said Adams was acting as commonwealth’s attorney, Judge Riddell, the circuit judge of this district died. Whereupon the said Adams was appointed judge by th^acting Governor in this district. He states that at the time he killed his father said Adams was commonwealth’s attorney in this district, and he has discovered, for the first time since the adjournment of the last term of this court, expressed himself with great bitterness against this defendant, saying that he had ‘camped upon his lather’s trail,’ and now he proposed to ‘camp upon *586this defendant’s trail and pnt him where he belonged.’ He says that after his trial for bail said Adams said that he Would never allow any man bail who had killed his father. For the foregoing reasons, he asks that the said Adams retire from the trial of the ease, and another judge be selected or appointed as the case may be, under the statutes.”
The indictment was returned on February 18, 1908. At that term the defendant demurred to the indictment. His demurrer was overruled, and he excepted. The trial was set for the thirteenth day of the term. On that day he filed affidavits for a continuance, and later he filed his petition and motion for a change of ■ venue in the action. Before the proof was heard on the motion for a change of venue, he withdrew the motion. The case was continued for the term, and at the special term in August he filed the affidavit above quoted to remove the regular circuit judge from the bench. In the meantime he had made a motion for bail, and this had been heard and overruled by the circuit judge.
The rule is that an objection to the trial judge raises, in effect a question of jurisdiction, and the objection, to be available, must be made before an appearance to the merits of the action or the submission of preliminary motions by either party preparatory to a trial. Kentucky Central R. R. Co. v. Kenney, 82 Ky. 154, 6 R. 17; German Insurance Co. v. Landram, 88 Ky. 433, 11 S. W. 367, 592, 10 Ky. Law Rep. 1039; Vance v. Field, 89 Ky. 178, 12 S. W. 190, 11 Ky. Law. Rep. 388; Russell v. Russell, 12 S. W. 709, 11 Ky. Law Rep. 547; Bales v. Ferrell, 20 Ky. Law Rep. 1564, 49 S. W. 759. There is nothing in any of the later cases in conflict with the rule laid down in these cases. It is held, however, in all the cases, that matters which *587have been since discovered may be set np by affidavit. Vance v. Field, 89 Ky. 178, 12 S. W. 190, 11 Ky. Law Rep. 388. The whole of the affidavit above quoted, except the last paragraph, refers to matter's which the defendant knew at the preceding term when he entered his general demurrer to the indictment, when he filed his application for a change of venue, and when he made a motion for bail. If, in a criminal case, the defendant were allowed thus to experiment with the circuit judge, and at a succeeding term to swear him from the bench because his experiments had not turned out as he would like them, the door would be open for a practice well calculated to bring the administration of criminal law into disrepute. The rule is a sound one which requires the defendant to make his objection promptly to the circuit judge, and which precludes him from making an dbjection where he elects to proceed with the case before him without objection. The only part of the affidavit therefore which it is necessary for us to consider is the last paragraph.
The statement attributed to the circuit judge, was made when he was commonwealth’s attorney in the district, and when he was not circuit judge, and had no reason to anticipate that he would be. He was speaking as commonwealth’s attorney. "When he declared that “he had camped upon his father’s trail, and now proposed to camp upon the defendant’s trail and put him where he belonged,” he was simply expressing what he would do as commonwealth’s attorney. The law made it his duty as commonwealth’s attorney to prosecute all infractions of law occurring in his district. It made it his duty to camp upon the trail of all those who were charged with committing *588felonies, and to put them where they belonged. The words do not necessarily import any personal hostility to the defendant. On the other hand, taking this whole paragraph together, it would simply indicate that the officer had in mind the performance of the duties which the law imposed upon him.
The office of circuit judge is one of great dignity and responsibility. Perhaps the peace and good order of the district more largely depends upon him than any other one person. The people of the district should not be deprived of the services of the regular judge for trivial causes, or on account of declarations made by him which do not necessarily show such a state of mind as would make him unfit to hold the court for the occasion. If what he says is capable of two constructions, then that which is consistent with his good faith should be preferred. • The burden is on the defendant to show facts manifesting that the circuit judge will not grant him. a fair trial, and he does not do this when he attributes to the circuit judge a statement which may as naturally be construed innocent as otherwise. It does not appear from the affidavit that, while he was commonwealth’s attorney, the circuit judge had taken any part in the prosecution. No facts are stated in regard to this.
The only thing alleged is the declaration as commonwealth’s attorney as to what he would do. The court must take judicial knowledge that the commonwealth’s attorney travels around the circuit with the judge, and that, when he would hear at some point on the circuit that a homicide had been committed, it would not be unnatural that he should say where the facts were, as in this case, unusual, that he would prosecute the case with all his power. We do not *589tliink that a declaration by a commonwealth’s attorney, when informed that a crime had been committed, that he would prosecute the case as best he could, should disqualify him from thereafter acting as circuit judge, nothing more appearing, for this is nothing- more than he should be expected to do; and to say that his declaration that he intended to do what he would naturally be expected to do, it was his duty to do and what disqualifies him from acting as circuit judge, would be in effect to say that the commonwealth’s attorney, if afterwards appointed circuit-judge, could not properly preside on the trial of any' crime which was charged to have been committed in his district while lie was commonwealth’s attorney.
The proof for the commonwealth on the trial showed in brief these facts: On the night before the homicide, Beach Hargis had gone to his father’s store and asked one of the clerks to let him have a pistol. The clerk declined to give him a pistol out of the stock, but told, him that his father’s pistol was there in the drawer of his desk, and he could take that. The defendant got the pistol, but said nothing to his father, although he was then in the store. The next morning between 9 and 10 o ’clock, the defendant was sitting in a barber shop. His face was swollen. He told the barber his father had hit him in the mouth and hurt him there. A man who looked like his father then passed by. He raised up in the chair, threw his hand back, and said, “I thought that was the old man.” About an hour later he drank a bottle of Brown’s Bitters, and said to a bystander, “Did you hear about the old man mashing my mouth?” and added that it was hard to take. Some two .hours later, he appeared at a drug store kept by his brother-in-law, Dr. Hogg. There he drew out his pistol, and *590was waving it about, pointing it in the direction of a bystander and his brother-in-law. From this drugstore, after a 'few minutes, he went to his father’s store. It was a double store-room. His father was in one room,' and he entered the other and took a seat in a chair not far from the front door.
While he was sitting- there in the chair, a man in the other room asked his father where he was. His father pointed him out to the man, and sáid: ‘£ There he sits. I have done all I can for him, and I cannot go about him or have anything- to do with him. ’ ’ A few minutes later his father said to another man who was in the room: ££I don’t know what to do with Beach. tie has got to be a perfect vagabond, and he is destroying my business, and if Dr. Hogg lets him stay there he will ruin his business.” After saying this to the man, the father walked in the direction of where the defendant was sitting. There were a number of persons in the store. As his father approached, the defendant got out of his chair and walked around behind a spool case that was sitting on the end of the counter. No words were spoken. The first sound that anybody heard was the report of a pistol. His father was then about three feet from him. A struggle ensued between them, during- which the pistol was shot four times more; all five of the shots taking effect in the father. ■ Persons in the store ran up, and when they got to them the father had the son-down and had the pistol, which he handed to one of them, saying-, ££PIe has shot me all to pieces.” The father died in a few minutes.
The proof for the son was, in substance, that the father came up to him, struck him in the face, and began choking- him. When he felt his eyes bulging-out, he drew his pistol and shot him, and, his father *591continuing to choke him, he fired the other four shots in the struggle; the last two being fired from the floor. The proof for the defendant also showed that the father was drinking. Taking all the evidence, we think it is reasonably clear that the father was unarmed, and that he was shot by the son while he was approaching him, and before he had touched him. Two witnesses who were on the outside of the store were looking through the window, and their testimony, as well as the testimony of the persons in the store, confirms this conclusion. We think it also reasonably clear from the evidence that the son was maudlin drunk, and but for this the unfortunate homicide would not have occurred. Tie showed that he was under the impression that his father had left the store, and that he went there to meet an uncle, but expecting no difficulty. He also showed: That about a week before his father had beat him unmercifully with a ramrod, that previous to this he had whipped him with a rope, and on the last occasion had struck him in the mouth with his fist, and had got upon him on the floor and churned his head against the floor; that he had taken his pistol from him, and had threatened to shoot him with it, but had been prevented from doing this by the interference of a bystander; and that he had then declared that he would kill him. There was also evidence that the son had said that the old man had beaten him up; but he would never get the chance to do it again; also that he had declared, when his father had taken a pistol away from him when drunk, that every time he got. drunk and was having a good time they had to do something to him, and that he aimed to kill his father and certain other persons whom he named.
*592The court gaye the jury instructions aptly submitting. to them the law of murder and manslaughter. The instruction on self-defense is in these words: “Although the jury may believe from the evidence ■beyond a reasonable doubt that the defendant, Beach Hargis, shot .and.killed James Hargis with a pistol loaded with powder and -leaden ball as defined by the first or second instruction, still if they further believe from the evidence that at the time he did said shooting and killing, if he did do it, he believed, and had reasonable ground to believe, that he was then and there in immediate danger of death or great bodily harm then about to be inflicted on him, or which reasonably appeared to the defendant about to be inflicted on him, by the said James Hargis, and there appeared to the defendant in the exercise of a reasonable judgment no other safe way to avert the danger or to the defendant apparent danger, if any, but to shoot and kill said James Hargis, then, in that event, they will find the defendant not guilty on the ground of self-defense or apparent necessity.”
We see no objection to the instruction. The court properly used the words ‘£ then and there. ’ ’ The defendant had no right to kill his father unless he was then and there in danger. What had taken place before was only to be considered by the jury in determining whether he was. then in danger. What his father liad previously done would throw light on this question; but it was not competent for any other purpose, for the defendant had no right to kill his father if he was not at the time in danger. A man may not take life unless it was necessary, or apparently necessary, for him to do so. The court did not err in using the words ££a reasonable judgment.” The defendant cannot be excused for killing another if he acted upon *593grounds not reasonably sufficient to warrant a man in so doing’. There is nothing in the instruction about retreat. The defendant is not excused for killing another unless in case of necessity, and this is all that the instruction requires. The instruction given contained the whole law, of the case on self-defense, and the court did not err in refusing to give the instruction which the defendant asked. The defendant was in no wise prejudiced by the failure of the court to define the words “malice afore-thought” and “feloniously.” If these words had been defined according to the approved definitions, the instructions as a whole would have been less favorable to the defendant than they were as given by the court. The fifth instruction could not possibly have mis-led the jury. The court had told the jury what facts were necessary to constitute the defendant’s guilt, and when he told them, in instruction 5, that the law presumed him innocent until his guilt was proved beyond a reasonable doubt, and if upon the whole case, or upon any material fact necessary to establish his guilt, they had a reasonable doubt of his having been proved guilty, they should find him not guilty, the jury could not have misunderstood the instruction.
We find no error of the court in sending the case to Estill county on the changing of the venue. The circuit court has a wide discretion in matters of this sort, and this court will not interfere where the discretion has not been abused. The trial was had in the county of Estill, and a large part of the jury was brought from Madison county. The case had been tried once before, and the circuit judge finds as a fact that he could not obtain a jury in Estill county after having made a fair effort in good faith to obtain a *594qualified jury free from bias, by reason, among other things, of the wide circulation given the facts of the case. Matters of this sort are by section 281 of the Criminal Code of Practice committed to the discretion of the circuit judge, and, as by that section no exception can be taken to his ruling, it is not subject to review here. Howard v. Commonwealth, 118 Ky. 1, 80 S. W. 211, 81 S. W. 704, 25 Ky. Law Rep. 2213, 26 Ky. Law Rep. 363.
The defendant offered to prove by his grandmother and others that his father had taught him to carry a weapon,- encouraged him to drink whisky, and had caused him to associate with disreputable men, thus rearing him in a-manner calculated to bring about the result which followed. The court properly excluded this evidence. It is no defense for the defendant when he kills another that his father reared him badly, and it is immaterial that the person killed was his father. The enforcement of the laws of the commonwealth which the defendant violated are in no manner affected by the way he was reared. The court allowed proof to be made of the previous assaults by the father upon the son. The defendant complains that the court did not allow him to prove the particulars of these assaults as fully as he should have done. The court, • however, seems to have followed substantially the rule laid down by this court in White v. Commonwealth, 125 Ky. 699, 102 S. W. 298, 1199, 31 Ky. Law Rep. 271, 720. In that case the court said: “We do not mean to say that it would have been proper for the court to have allowed evidence as to all the details of the cutting and wounding of appellant by Layne, or of the assault made upon him by the latter with a club; but the fact that both assaults occurred, the general character of the injuries re*595ceived by appellant at tbe hands of Layne, and the further fact that the latter was the attacking party, should have'gone to the jury in evidence.” The evidence which the court admitted got before the jury fairly and fully the assaults made by the father on the son in the previous difficulties, and showed clearly that the father had treated the son in a most inexcusable manner. ,
The defendant complains that he was not'allowed to prove by the witness James Isom that about two hours before the killing he met James Hargis, and he then said to him that he would kill the defendant before night, and that he was done with him forever. The witness had not communicated this threat to Beach Hargis; but, although it had not been communicated to the defendant, it was competent to show the frame of mind of James Hargis at the. time. Miller v. Commonwealth, 89 Ky. 653, 10 S. W. 137, 10 Ky. Law Rep. 672; Young v. Commonwealth, 29 S. W. 334, 17 Ky. Law Rep. 18. The evidence should have been admitted. This was error, We find no other substantial error in the admission of evidence in the record. So the question arises: Should a judgment be reversed and a new trial granted for this error? The defendant showed by several witnesses, who were entirely uncontradicted or impeached, that his father a week before had pointed a pistol at him and threatened to kill him, and the conduct of the father at that time was clearly shown. If tbe evidence of Isom had been admitted, it would only have served to corroborate these three uncontradicted witnesses, and the proof as to the conduct of the father on those occasions was such that we are satisfied the testimony of Isom would really have added nothing to an understanding of the case by the jury. The fact that the *596deceased may have made a throat beforehand is simply evidence tó show the condition of his mind at the time of the homicide. In addition to the witnesses who testified as to the previous declarations of the father and his previous acts, there were two witnesses to the declarations made by him just before he walked to where the defendant was. The fact is, the defendant had his father’s pistol. The father was unarmed. The shooting was done before a word was spoken, and when the father'was at least three feet from the defendant. The storeroom had a number of people in it, and it is hard to believe that the defendant, if he had been sober, could have thought that he was then and there in danger-of death or great bodily harm at the hands of the father. .
Section 340 of the Criminal Code of Practice originally read as follows: “A judgment of conviction shall be reversed for any error of law appearing on the record.” Under this provision many criminal cases were reversed by this court, and so, the better to promote the administration of justice, the Legislature added to the section these words: “When upon consideration of the whole case the court is satisfied that the- substantial rights of the defendant have been prejudiced thereby.” The plain purpose of the amendment was to provide that a judgment of conviction should not be reversed unless upon consideration of the whole case the court was satisfied that the substantial rights of the defendant had been prejudiced by the error complained of. This had been the rule for a long time under the Civil Code, and the purpose of the amendment was to make the rule in criminal cases practically the same as in civil cases. Under the former provision, the court was required to reverse when it found an error in the, record. It was *597not allowed to speculate as to what was the effect of the error. The amendment was aimed to change this rule and to provide that no case shall be reversed where the defendant has ha.d substantially a fair trial of the merits of his case. We have in a number of cases so construed the amendment. Rutherford v. Commonwealth, 78 Ky. 639, 1 R. 410; Whiteneck v. Commonwealth, 55 S. W. 916, 56 S. W. 3, 21 Ky. Law Rep. 1625; Bailey v. Commonwealth, 58 S. W. 425, 22 Ky. Law Rep. 512; Ward v. Commonwealth, 91 S. W. 700, 29 Ky. Law Rep. 62; Stacy v. Commonwealth, 97 S. W. 39, 29 Ky. Law Rep. 1242.
In Collett v. Commonwealth, 121 S. W. 426, where, as here, there had been an error in the admission of evidence, this court, affirming the judgment, said: “The jurisdiction of this court in criminal cases is wholly statutory. We have oniy such jurisdiction as the law confers. One of the limitations upon our jurisdiction is that a judgment of conviction shall not be reversed for an error of law appearing in the record, unless, upon a consideration of the whole case, the court is satisfied that the substantial rights of the defendant have been prejudiced thereby.” In this case, as in that, the defendant relied in substance solely on the plea of self-defense. The right of self-defense was clearly presented to the jury by the instruction which the court gave. The admission of this uncommunicated threat would not have served in any wise to show that the defendant believed that he was in danger at the hands of his father at the time he shot him, for it was unknown to him. It could only have illustrated his father’s state of mind and served to show the purpose for which he approached him; but, in view of the great mass of evidence heard *598on the trial as to what had occurred before and what had occurred then, it is manifest that this evidence, if admitted, would have been only cumulative, and could have had no controlling effect upon the trial. On the ydiole case, we are satisfied from the record that the defendant has had substantially a fair trial on the merits of his case. To reverse the judgment for this error would be to overlook the amendment of the Code, and to follow the old rule which the amendment was designed to abolish.
When the defendant filed his affidavit asking that the circuit judge vacate the bench, the court fined the attorneys for contempt of court in filing the affidavit. This was error. The defendant was on trial, and he had a right to determine whether he was willing to try the case before the regular circuit judge or not. He had a right to require his attorneys to file the affidavit. If the affidavit was false, the' proper way to punish it was by an indictment for perjury. An affidavit that the regular circuit judge will not afford the defendant a fair trial would, but for the statute, be necessarily a contempt of court, and, if the attorneys may be fined for filing such an affidavit in one case, they may be fined in all cases, and the statute allowing the affidavit to be filed amounts to nothing. We therefore think that it cannot be a contempt of court under the statute to exercise the statutory right; but the defendant was not prejudiced by this on the trial, for the reason that it all took place in Breathitt county before the venue was changed, and it could have had no effect on the trial,before a jury in Estill county a year afterwards.
Judgement affirmed.