By the WHOLE COUNT.
O’NIELL, C. J.Belator was accused, in separate bills of information, of manufacturing and of selling intoxicating liquor for beverage purposes. Having waived arraignment and pleaded not guilty in each case, he filed a motion to recuse the district judge, averring in the motion that the judge had an interest in the case, that he was a personal enemy of defendant, and was so biased and prejudiced against defendant as to be incapable of giving him a fair and impartial trial. Belator requested the judge either to recuse himself or to refer the motion to a judge of an adjacent district to hear evidence in support of the allegations. But the judge to whom the motion was addressed overruled it, on the ground that the allegations of fact did not set forth a legal cause for recusation. This proceeding is to compel the judge either to recuse himself or to refer the motion for recusation to a judge of an adjoining district to hear evidence in support of the averments in the motion.
By the Act 40 of 1880, p. 38, a judge’s “being interested in the cause” was made a ground for his being recused in either a criminal or a civil case. In that respect, the law was not changed either by Act 35 of 1882, p. 48, or by Act 203 of 1918, p. 380, even if this latter act, making some changes in the law of recusation, should be held applicable to criminal as well as civil cases. It has been deemed doubtful whether the statute of 1882 was ever applicable to criminal cases, because, in its title and in its text, it purported to be merely an amendment of article 338 of the Code of Practice, which, of course, has reference only to civil cases. See State v. Nunez, 147 La. 404, 85 South. 61. The act of 1882 did not contain a repealing clause. The act of 1918 does, in terms, repeal all laws in conflict therewith, and specifically the Act 35 of 1882. The act of 1918, however, in its title and in its text, purports to be merely an amendment and reenactment of article 338 of the Code of Practice as amended by Act 35 of 1882. Eor that reason, the act of 1918 might be declared not applicable to criminal cases, as was suggested with regard to the act of 18S2 in State v. Nunez, supra. That is a matter of no importance in the case before us, because, if the act of 1918 is not applicable to criminal cases, the Act 40 of 1S80 remains as the law on the subject of recusation in criminal cases; and, under either statute, a district judge’s being interested in the case is a cause for recusation.
We have not yet undertaken to establish a rule for determining how a judge may be so “interested” in a criminal case as to disqualify him to sit in judgment in the ease. But it is well settled that the mere allegation that a judge is interested in a particular case, without an indication of what his interest is, does not state a cause for his being recused. It is also well settled that the allegations, in a motion for recusation, that the judge is an enemy of the party accused, and is therefore so biased and prejudiced that he cannot give the party a fair and impartial trial, does not set forth a legal cause for recusation. The court ruled otherwise in State v. Banta, 122 La. 235, 47 South. 538; but the ruling has been referred to with disapproval several times, and must now be considered overruled. See State v. Blount, 124 La. 202, 50 South. 12; State v. Hayes, 127 La. 762, 53 South. 983; State v. Morgan, 142 La. 755, 77 South. 588; State v. Nunez, 147 La. 394, 85 South. *93252; State ex rel. Martin v. Judge, 152 La. 768, 94 South. 389; State v. Rini, 153 La. 57, 95 South. 400; and State v. Simone, 154 La. 73, 97 South. 302.
In the case of State v. Morgan, 142 La. 755, 77 South. 588, we disposed of the- question thus:
“The judge to whom a motion for recusation is addressed is not compelled • to refer it to another judge to determine whether the allegations in the motion are true, but may -overrule the motion himself, if the allegations do not set forth a legal cause for recusation.
“Prejudice or bias on the part of the judge has not been declared by statute in this state to be a cause for which the defendant in a criminal prosecution may demand that the judge recuse himself.”
The foregoing quotations are from the syllabus. We quote now from the opinion itself viz.:
“The cause assigned in the motion [for recusation] was that the judge was so biased and prejudiced against the defendant that it was impossible for the defendant to obtain a fair and impartial trial before him. Although alleged as a fact, that was, of course, only a matter of opinion or belief on the part of the defendant or his learned counsel. In support of the allegation of bias and prejudice on the part of the judge, the motion contains certain recitals or allegations of fact, which, in our opinion, were not a sufficient basis for the conclusion or belief that the judge was so biased or prejudiced that he could not give the defendant a fair or impartial trial. * * *
“It would be an unreasonable proposition to maintain that a motion for recusation that does not set forth a cause for recusation should be referred by the judge to whom it is addressed to another judge to determine whether the averments in the motion are true. Prejudice or bias on the part of the judge has not been declared by statute in this state to be a cause for which he may be recused. * * *
“It is true, in the case of State v. Banta, 122 La. 235, 47 South. 538, it was held that a motion for recusation, containing the allegation that the judge was a personal enemy of the defendant, and was so biased and prejudiced that he was incapable of giving the defendant a fair or impartial trial, set forth something to be considered, and should have been referred to another judge for trial and determination. But the facts of that case were exceptional, and the decision cannot be regarded as maintaining a general principle of law that the allegation that the judge is so biased or prejudiced against the defendant in a criminal prosecution that he cannot give the latter a fair or impartial trial, sets forth a cause for recusation. * * *
“However, in Banta’s Case, this court refrained from expressing an opinion on the question whether, as a general proposition of law, bias or prejudice on the part of the trial judge, in a criminal ease, is to be regarded as ‘his being interested in the cause.’ See pages 238 and 239 of 122 La. (47 South. 538). In State v. Bordelon, 141 La. 611, 75 South. 429, the opinion contains a passing remark by which the court appears to have taken it for granted that prejudice on the part of the judge was a cause for which the defendant in a criminal case might demand his recusation. But the dictum is not to be regarded as authority. * * *
“Our conclusion is that there was' no error in the judge’s refusal to recuse himself or to submit the motion to another judge for a ruling on it.”
A rehearing was granted in State v. Morgan, and the ruling was reconsidered and reaffirmed, viz.:
“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 con•clusions heretofore reached by us, and fully stated in <jnr original opinion, are sound and correct, it is sufficient to say that we adhere to them.” ,
In State v, Nunez, 147 La. 394, 85 South. 52, the author of the opinion in State v. Banta said of his ruling in that case;
“That ruling has since been modified to the extent that it has been held, in effect, that the bare allegation of bias and prejudice is not an allegation of interest on the part of the judge, and does not disclose a eause_ for his recusation, within the terms of the statute, and that a motion to recuse based upon that ground alone, Or upon that ground with specifications which are not within the statute, may be overruled as frivolous and -without referring the *933matter to another judge. State v. Blount, 124 La. 202, 50 South. 12; State v. Hayes, 127 La. 764, 53 South. 983: State v. Morgan, 142 La. 764, 77 South. 588.”
The causes for recusation are statutory. A judge’s being a personal or political enemy of either party in a civil case, or of the defendant in a criminal case, or of the prosecuting attorney, is not a cause for the judge to be recused. Neither is a judge’s being a personal or political friend of the party or parties on either side of a civil case, or on the side of the defense or of the prosecution in a criminal case, a cause for the judge to be recused.
The only question in such case is whether the circumstances are such as to give the judge a material interest in the result of the trial of the case. In State v. Nunez, supra, the judge and the defendant, who was the district attorney, were rival candidates for the judgeship in a political campaign then going on; and in the motion for recusation, it was alleged that the judge was, -for that reason, materially interested in the result of the prosecution of the district attorney; that he, the judge, had set the prosecution on foot to subserve that interest, and had acted therein as a detective, as prosecuting witness, and as prosecuting attorney. Those allegations, of.course, were held to disclose a cause for recusation; i. e., the judge’s “being interested in the cause.”
In State ex rel. Martin v. Judge, 152 La. 768, 94 South. 389, the defendant, holding the office of registrar of voters, was prosecuted on a charge of violating certain provisions of the statute relating to the registering of voters (Act 122 of Extra Session of 1922). The allegations of fact in the motion to recuse the judge, .if true, showed that he had a material interest in the prosecution. For that reason it was held that the motion disclosed a cause for recusation.
In State v. Simone, 154 La. 73, 97 South. 302, the ruling was that the defendant was not guilty of contempt for having made, in his motion for recusation, substantially the. same allegations that had been held sufficient in State v. Banta, supra, if the allegations were not false. We held that the judge should not have adjudged the defendant guilty of contempt, after the judge had, by peremptorily overruling the motion for recusation, deprived the defendant of an opportunity to prove that his allegations were true. Simone had alleged, in, support of his charge that the judge was his enemy and was so biased and prejudiced that he could not give a fair or impartial trial, that the judge had instigated the prosecution of the defendant as a last and desperate attempt to punish him fpi not supporting the judge in his political campaign. The judge had peremptorily overruled the motion for recusation, saying that it was “frivolous and absurd.” But the defendant had thereafter been tried and acquitted. The judge had sentenced him to suffer imprisonment for 10 days for contempt of court for having made the aforesaid allegations in the motion for recusation. The case was before us on a writ of habeas corpus. We were not called upon to decide whether the motion for recusation had set forth a legal cause for recusation. That question had passed out of the case when the defendant was acquitted of the crime charged. The only question that was submitted po us for decision was whether the allegations of the motion for recusation were so utterly irrelevant as to-subject the defendant to condemnation and punishment for contempt of court for making the allegations. We held that, inasmuch as the allegations of enmity and bias and prejudice were substantially the same that had been déclared sufficient, if true, to justify the judge’s recusation in State v. Banta, 122 La. 235, 47 South. 538, and, inasmuch as the decision in that case had not been squarely overruled, even *936though it had been unfavorably criticized 'in State v. Morgan, 142 La. 755, 77 South. 588, the defendant, Simone, “was not out of order in relying upon the ruling in Banta’s Case, and in believing that he would be allowed an opportunity to offer proof of the allegations in his petition for recusation.” The statement that Simone was not “out of order” for following the doctrine of the Banta Case was a very appropriate and familiar expression that he was not guilty of disrespect for the court. Bpt our ruling that Simone should not go to jail for having had faith in the decision in the Banta Case was a long way from affirming the decision in the Banta Case — especially when we said, as we did at the same time say, that we had unfavorably criticized, though we had not overruled, • the decision in the Banta Case. There is therefore no justification whatever for citing the ruling in Simone’s Case as an affirmance of the decision in the Banta Case.
This court has consistently maintained that a defendant in a criminal prosecution has no right to demand the recusation, of the district judge on the ground that he has manifested a prejudice or animosity by his rulings against the defendant. State v. Hayes, 127 La. 762, 53 South, 983; State v. Morgan, 142 La. 764, 77 South. 588; State ex rel. Martin v. Judge, 152 La. 768, 94 South. 389; State v. Rini, 153 La. 57, 95 South. 400. i It is also decided that the judge’s having expressed an opinion on the question of the guilt of the party accused is not, of itself, a cause for the judge to be recused. State v. Hayes, supra; State ex rel. Martin v. Judge, supra.
In State v. Chantlain, 42 La. Ann. 719, 7 South. 669, this court put at rest the question of the right of a judge, to whom is addressed amotion for recusation in a criminal case, to overrule the motion himself, if the allegations of fact do'not state" a statutory cause for recusation. Referring to the previous decisions on the subject, Mr. Justice Fenner, for the court, said:
“When we said, in the opinions above referred to, that the judge’s duty to ref¿r was irrespective of the merits of the plea, of course, we meant only the issues of fact involved under a plea valid if sustained by proof. We did not mean to compel judges to' go through the idle ceremony of referring pleas which, if admitted to be true, would furnish no ground for recusation. This would be to issue a patent for a brand-new device to obtain delays in criminal causes, which the clumsiest hand could operate successfully.”
We have said several times that a defendant in a criminal prosecution — for either a felony or a misdemeanor — has no right to prevent or interrupt a trial of the case by giving notice of an intention to apply to the Supreme Court to exercise its supervisory jurisdiction to compel the district judge either to recuse himself or to refer the question of recusation to a judge ad hoc. Such a system would almost abolish the administration of justice. Whenever a district judge is asked to be recused in a criminal prosecution, he must determine whether tire allegations of fact in the motion for recusation state a statutory cause for recusation. If the allegations — assuming them to be true — do state a cause for recusation, the judge to whom they are addressed is not competent to decide whether the allegations are true. If the allegations of fact— taken for true — disclose that the judge has an actual interest in the ease, he should either recuse himself or refer the motion to a judge of an adjoining district to hear evidence in support of the allegations of fact. If the alleged cause for recusation be that of relationship, or be any other statutory cause than that the judge has an interest in the case, he should either recuse himself forthwith or refer the motion to an attorney at law appointed by him as judge ad hoc to hear evidence and decide the question of recusation. In any event, the defendant’s *937remedy is, not to prevent or interrupt the trial by invoking the supervisory jurisdiction of the Supreme Court, but to reserve a bill of exceptions to the ruling of the district judge, or of the judge ad hoc, and urge the complaint here, in the event of an appeal from the final verdict in the case.
Wo have observed, in the written reasons assigned by the district judge for overruling the motion for recusation in this case, some reference to a still, or whisky manufacturing outfit, being found on premises belonging to the judge. It may be — though it is not certain — that the defendant was accused of manufacturing or selling the intoxicating liquor on the judge’s premises. There was no such allegation in the motion for recusation. Therefore we do not express an opinion as to whether-a judge’s being victimized in that way would give him such an interest in the prosecution of the party accused, as to warrant the judge’s being recused.
The relief prayed for by the relator in this case is denied.
DAWKINS, J., concurs in the decree. LAND, J., dissents and hands down reasons. ST. PAUL, J., concurs and files reasons. LECHE, J., concurs for written reasons. THOMPSON, J., concurs in decree. OVERTON, J., absent.