(dissenting). I am unable to concur in tbe opinion of the majority of the court in this case. I think the affidavit filed by the defendant, that he could not obtain a fair and impartial trial before the presiding judge, was more ■ than sufficient, and the judge should have vacated the bench and allowed a ■special judge to be appointed to try the case. The opinion sets forth the affidavit of the defendant in full, and, without recopying it here, I deem it sufficient to refer to it in the opinion.
The affidavit shows that, at the time the homicide for which the defendant was being tried was committed, the presiding judge, Hon. James P. Adams, was commonwealth’s attorney in the district where it took place. .As soon as the killing occurred, the duty of the commonwealth’s attorney with reference to the prosecution began. It was his duty as soon as the homicide was committed to take charge of the case in so far as that was possible or practicable, and to do everything that was necessary, if he thought a crime had been committed, to prosecute the criminal. After the defendant had killed his father, the affidavit shows —and it must be taken as true — that the then com-' monwealth’s attorney said of the defendant “I have camped upon his father’s trail and now I propose to camp upon the defendant’s trail and put him where he belongs. ’ ’
The commonwealth’s attorney, in his mind, began the prosecution of the defendant when he made this speech. It was a declaration upon his part 'that he then took charge of the prosecution and intended to see that the defendant was put where he belonged. Before the indictment, however, the regular judge of that district died and the commonwealth’s attorney, James P. Adams was appointed judge in his stead. *600So that the result of what happened was that the attorney against the defendant and for the commonwealth was placed upon the bench to try the defendant whom he had theretofore been prosecuting. It was not necessary, in order to begin the prosecution, that anything should actually be done. The bias of the prosecuting attorney against the defendant was a mental bias, and it seems to me highly improper that one who had such bias should be allowed to sit in judgment upon the trial of the case which involved the life or liberty of the defendant whom the judge had theretofore prosecuted. It will not be disputed, of course, .that the defendant was entitled to a fair and impartial trial, and, in order that he might have ibis, it was necessary that he should have an unbaised judge to preside upon the trial of the case. The defendant was entitled to have a judge preside upon the trial of his case who had not expressed an opinion that he was guilty of the charge against him. If the judge who presided upon the trial in this case said what is charged in the affidavit there can be no doubt that he had made up his mind as prosecuting attorney that Beach Hargis was guilty of murder, and that he intended to follow him up until he was convicted; and if we analyze the language used and give to it the meaning which those who use it ordinarily intend, there can be no doubt of the soundness of this conclusion. “I have camped upon his father’s trail, and will camp upon his'. ’ ’
The expression comes from the frontier. To camp upon one’s trail is to follow him up day by day and when nightfall comes the pursuer camps upon the trail of the pursued, so that he can resume his pursuit when morning comes. The Indian camps upon the trail of the white man he is following to kill or de*601spoil; the hunter camps upon the trail of the game whose life he covets; and the"revengeful man camps upon the trail of the enemy he desires to punish. The expression has a sinister sound, and augurs ill for the object of it. It means unremitting pursuit, until the purpose of the pursuit is accomplished, and this is what the prosecuting attorney meant when he used the language charged against him. He intended to prosecute Beach Hargis until he was convicted, for that is what is meant by putting him where he belonged.- The prosecuting attorney meant that Beach Hargis was guilty of murder, and that he intended to put him either upon the gallows or within the walls of the penitentiary. I do not believe that there can be two opinions as to the meaning of the language used, and its use showed a mental status which disqualified the speaker from occupying the position of a judge in the very case of which he was speaking. The statute (section 968, Ky. St. [Russell’s St. sec. 2824]) requires the presiding judge to retire and give place to a special judge'“if either party shall file with the clerk of the court his affidavit that the judge will not afford him a fair and impartial trial, or will not impartially decide an application for a change of venue.” This court, in construing this statute, has uniformly required the affidavit to state the facts which show why the judge will not afford the party filing the affidavit a fair and impartial trial. This I think was done in this case by the affidavit under consideration.
I do not mean to reflect in any way upon the character or general fairness of the learned judge whose conduct is under discussion. On the contrary, it gives me great pleasure to say of him that I believe him to be an upright, honest, and learned magistrate, whose *602record as a judge entitles him to the confidence of all. I do not believe he was conscious of being biased against the defendant; but, on the contrary, he was of opinion that, when he left the position of prosecuting attorney and took a seat npon the bench as judge, he could afford the defendant a fair and impartial trial. The rights of the defendant, however, do not turn upon the private belief of the judge as to his own fairness ; the right to another judge turns under the statute upon the question whether the facts stated show that the judge cannot properly preside. I cannot believe that any man who has been advocate in a litigation can afterwards properly xoreside as judge in that litigation. The commonwealth’s attorney is the advocate employed by the state in a given territory to. prosecute crime, 'and he is paid a salary for so doing. As soon as homicide is committed in his district, as said before, it is necessary and proper that he should at once take charge of it and do all that the interests of the commonwealth demand with reference to it. This makes him literally an attorney in the case and gives to his mind such a bent or direction with reference to it as seems to me renders it improper that he should afterwards be judge of the matter. It is altogether irrelevant whether or not the judge was conscious of being biased; the bias of mind of which we are not conscious is more dangerous than that of which we are conscious. If we have cause to suspect that our mind is prejudiced against one with whom we have to deal, we may battle against it and overcome it and perhaps do him justice; but, if we are unconscious of the bias we have, then our prejudices robe themselves in the garments of truth, and we mistake them for truth, and are unable to resist their influence.
*603Upon the trial of the case the defendant offered to prove hy James Isom that about two hours before the killing the witness met James Hargis, who said to him that he would kill his son, Beach, before night, and that he was done with him forever. This evidence was excluded, presumably upon the ground that this threat had not been communicated to the defendant, Beach Hargis; but it is admitted in the opinion that it was competent for the purpose of showing the frame of mind of James Hargis at the time of the killing. The opinion then holds that, while it was error on the part of the trial court to exclude this evidence, it was not prejudicial to the substantial rights of the defendant. It seems to me that this conclusion is erroneous. I cannot agree that it is the province of the court to weigh this proposed evidence and say that it was not prejudicial to the defendant to exclude it.
On the contrary, it seems to me, if true, to be most important to the interest of the defendant. The defendant showed by his mother and his grandmother that his father on several occasions prior to the killing had beaten him in a cruel manner, from the effect' of which he had been confined to his bed for several days after the occasion, and he offered to show by these ladies that the father threatened to kill his son while he was beating him, and would have killed him but for the fact that he was prevented from so doing. The court excluded the testimony that the father had threatened to kill his son, and that he would have killed him but for the interference of outside parties; and of this ruling the defendant also complains. I think this evidence was competent. The father was beating, his son, presumably, to reform him, and the ■average juror would be of the opinion that, although *604the son was of age, yet he should not resist the .exercise of parental authority when administered for his own good. Now, when the father approached Beach in the. store, upon the fatal occasion when the killing took place, and began to chastise him as he testifies, it was very, important for him to know whether the father was simply intending to chastise him, or whether he intended to make an assault upon his life; and, if upon other occasions when he had begun to chastise the boy he had to be restrained by outside parties from murdering him, then Beach had a right to think that his life was in danger on the occasion of the killing when the father commenced to beat him. A boy would not be justified in killing his father simply because the parent was proceeding to administer rational corporal punishment for the good of the son; but if the son knows that the father is a savage, vindictive man, utterly without pity or remorse, and liable, under.the influence of passion, to imitate the crime of Ivan the Terrible by killing his own child, then the son had a right to treat him, not as a parent correcting errors, but as a savage foe making a murderous assault. .
The jury could not understand the peril in which Beach Hargis stood without knowing all that had gone before. If the defendant was to be justified at all, he was to find his justification in the savage cruelty of the conduct of his father towards him in the past, and he had a right to have the jury view the killing for which he was tried with this evidence before them in order that they might truly estimate the danger within whose pale he stood at the time of the homicide. James Hargis is shown in this record to have been a savage, cruel man; that he had a high vindictive temper, and allowed, neither fear-nor remorse nor pity to *605come'between him and the objects of Ms passionate resentment. The frame of mind of the father shown by the excluded evidence warranted the boy in shooting in defense of his life, when, perhaps, he would not have been justified if -the father had been in a different frame of mind. I think the jury should have had this evidence and weighed it along with the other testimony, and I am of opinion that it was highly prejudicial to the interest of the accused to exclude it. James Hargis was a man of violence and blood. He had established in the county of Breathitt a reign of terror, under the influence of which the law was paralyzed and its ministers overrun. He is pictured as a man of gigantic frame, savage temper, and indomitable courage. He had surrounded himself with armed mercenaries, whose minds he inflamed with drink, and who seemed willing to do his bidding even to 'the point of assassinating his enemies without fear of the consequence of their crimes and without remorse or pity for the result, He had not only broken down the law and terrorized its officers, but he had made the temple of justice itself the rendezvous for assassins who, sheltering behind its walls, reddened its portals with the blood of its votaries. He literally ingrafted upon the civilization of the twentieth century the savagery of the fifth, and introduced into a community of law and order the merciless ferocity of the middle ages.
I am of opinion that the character of this man should have been fully presented to the jury, and especially as the case had been transferred by a change of venue to a county where, perhaps, he was not so well known as in Breathitt. To shoot one’s father seems almost an inexcusable crime, and is so considered by the average man. If it is to be justi*606fied at all, it must be justified by showing a very extraordinary occasion. Beach Hargis knew his father, knew his savage and ferocious temper, knew his pitiless heart, and his gigantic strength; and, so knowing, he had a right to presume that his life was. in danger, when, if his father had been of a different temperament, he would not have been justified in such a conclusion.
I do not believe that this defendant has had a fair and impartial trial. I believe that the judge who presided in the case was disqualified for the reasons above 'given, and that the error pointed out in regard to the refusal to admit the testimony of Isom, Mrs. Hargis and her mother was so prejudicial to to the defendant’s interest as to warrant a reversal of the case.
Eor these reasons, I am constrained to dissent from the opinion of a majority of the court.