On Rehearing.
LECHE, J.The contested issues on rehearing are confined mainly to the legality of the rulings of the trial judge (1) in refusing to permit the filing of or to entertain a motion by defendant to recuse him, the judge; (2) in refusing, on the trial of the state’s motion for a change of venue, to permit defendant to show that he could not obtain a fair trial in the parish of Jackson, to which parish the state had prayed to change the venue from the parish of Winn; and (3) in permitting the witness Elzie Jennings to testify as to a conversation had by hini with the deceased (Howell) a few hours previous to the homicide.
Although the action of the trial judge on defendant’s motion to have him recused received most thorough consideration in our original opinion, the importance of that ruling, considering that it is based upon an apparently conflicting jurisprudence, was one of the causes which induced us to grant the present rehearing. The whole matter was again fully discussed and most elaborately argued by learned counsel. -Still believing, however, that the conclusions heretofore reached by us, and fully stated in our original opinion, are sound and correct, it is sufficient to say that we adhere to them.
[12,13] The second question, which has been much pressed upon our attention in the present rehearing, involves the correctness of the trial judge’s rulings on the motion made by the state for a change of venue from Winn to Jackson parish.
*781The pertinent facts are that defendant was indicted for murder in the parish of Winn on November 24, 1916; his trial was begun on December 11, and concluded with a mistrial on December 21, 1916. On February 28, 1917, he moved for a change of venue from Winn parish to a parish in some adjoining district to be selected by the judge. This motion was overruled. Defendant was then again tried in the parish of Winn on February 26, 1917, and that trial, which was concluded on March 10th, also resulted in a mistrial. On the same day, March 10, 1917, the district attorney then moved for a change of venue, and prayed that the case be transferred for trial to the parish of Jackson. Defendant resisted, this motion; he pleaded the authority of the thing adjudged, and, in the alternative, in case the state’s motion should be granted, he prayed that the venue be changed to some other parish than the parish of Jackson, for the reason, alleged by him, that public feeling and prejudice against him in said parish of Jackson, would render it impossible for him to secure a fair and impartial trial in that parish.
During the trial of this motion, the judge, on objection made by the state, excluded evidence going to show public feeling or prejudice against defendant in the parish of Jackson, which evidence was offered with a view, we assume, of having the trial transferred, in case the venue was changed, from Winn parish to some other parish than the parish of Jackson. These rulings are brought up by bills of exception O and D. ' The court ^finally granted the application of the state for a change of venue, and the case was transferred for trial, as requested by the district attorney, to the parish of Jackson. Whereupon defendant then reserved his bill of exception marked E.
In argument on rehearing, while defendant does not abandon entirely his bill of exception marked E, his main complaint is to the rulings of the judge brought up by bills 0 and D.
Section 1021, R. S., reads as follows:
“Whenever it shall be established, in any criminal prosecution, by legal and sufficient evidence, that a fair and impartial trial cannot be had in the parish where the case is pending, the judge of any court having jurisdiction of the case may, upon application of the Attorney General or district attorney, for a change of venue, grant such application: Provided, that said case be transferred .to any parish or judicial district adjoining the one in which the case is pending.”
Section 1022 provides for an application for change of venue on the part of a defendant.
Section 1023 reads:
“Such application may be made orally in open court, or by petition in chambers, and shall be accompanied with proof, under oath, of the party or his attorney, that reasonable notice has been given to the district attorney of such application. Thereupon the judge shall hear the party making the application, as well as the attorney representing the state; and if, on such hearing and examination of the evidence adduced, he shall be of the opinion that the party applying1 cannot have a fair and impartial trial in the parish where the indictment is pending, the judge shall award a change of venue to the adjoining parish of the same judicial district, or of an adjoining district, and if possible to that in which a district court shall next be held.”
These statutes were adopted in furtherance of the well-known principle, first recognized in Magna Charta and now forming part of the Bill of Rights of all constitutional governments, whereby every person charged with crime is entitled to be tried by an impartial jury of his peers. Our own Constitution (article 9) ordains that:
“In all criminal prosecutions the accused shall have the right to a speedy public trial by an impartial jury.”
When, therefore, the lawmaking power vests in the courts the power to change the venue and transfer a criminal trial from one parish to another parish, that power is to be exercised with a view of carrying out and putting into effect this constitutional guar*783anty. If, on account of public feeling, prejudice or any other cause, an accused cannot obtain an impartial trial in one parish, transferring the ease to another parish, where prejudice in the public mind is as strong and intense as it is in the parish from which the venue is sought to be changed, would amount to an absolute denial of the constitutional guaranty of a speedy public trial before an impartial jury. In a proceeding under these statutes, the judge is vested with the same judicial discretion which he may lawfully exercise in the performance of any other judicial function. He must pass upon the sufficiency of the evidence and he must decide whether that evidence justifies the request for a change of venue. If he should conclude to grant such change, the law is that he should transfer the case to the adjoining parish of the same judicial district or of an adjoining district and his discretion in selecting the parish to which the case should be transferred is to be exercised in the same manner and only to the same extent. He should be guided with the view of affording the accused the opportunity to he tried by an impartial jury, as well as with the view of protecting the good order of society by a strict and impartial enforcement of the criminal statutes.
The judicial discretion thus vested in the judge will always be presumed to have been wisely exercised and as a rule will not lightly be interfered with, but it is nevertheless subject to review.
[14] But where the judge refuses to permit the accused to offer in evidence the facts by which he should be guided in exercising his discretion, it is then impossible for the appellate court to review his ruling and to say whether he has wisely exercised that discretion or whether he has abused it. That is precisely the situation which is presented in this case. The accused objected to a change of venue, but he prayed in the alternative, in case the venue should be changed, that it be changed to some parish other than the parish of Jackson, because he believed that he could not obtain a fair trial in that parish. When he attempted to offer evidence to sustain his contention, that he could not obtain a fair trial in the parish of Jackson, the judge would not permit him to do so. It may be that defendant could not have established that fact, and the judge in his per curiam so intimates; but defendant was entitled, in the exercise of his constitutional right to a- fair trial before an impartial jury, to offer proof to that effect, and to have such proof put of record in order that the ruling of the judge might be subjected to review. Deprivation of this right entitles defendant to have his conviction set aside and annulled.
We see no good reason to change or alter the conclusions reached by us in our original opinion, on the third question discussed by defendant, on the present rehearing, in regard to the admissibility of Elzie Jenning’s testimony as to the conversation he had with the deceased. Our ruling on that bill of exception, marked 7, as also our rulings on all other bills reserved by defendant, appear to us to be correct, and, so believing, we adhere to them.
Eor reasons already stated, it is ordered that our former ruling on bills of exception marked O and D be reversed, that our former decree be set aside, and that defendant’s conviction be annulled. It is further ordered that this case he remanded to the district court for the parish of Winn, that the trial of the state’s motion for a change of venue he reopened, to be proceeded with according to law and the views herein expressed, and that defendant have another trial in accordance with law.
O’NIELL, J., adhering to the views expressed in the original opinion rendered in *785this case, dissents from the ruling on bills of exception C, D and E, and from the de^ cree annulling the verdict and sentence.