(dissenting in part). Section 9 of article I of the Bill of Rights of the present Constitution ordains that—
“In all criminal prosecutions the accused shall have the right to a speedy public trial by an impartial jury.”
Section 41 of article 7 of the Constitution of 1921 provides that—
“All eases in which the punishment may not be at hard labor shall, until otherwise provided by law, be tried by the judge without a jury.”
In the trial of misdemeanors and minor offenses, a district judge, therefore, acts in a dual capacity, as he is both judge and jury in such cases.
Section 9 of article 19 of our' Constitution declares that—
“The jury in all criminal cases shall be the judges of the law and of the facts on the question of guilt or innocence, having been charged as to the law applicable to the case by the presiding judge.”
The jury under this section of the Constitution are the exclusive judges of the facts, of the credibility of witnesses, and of the weight and sufficiency of the testimony.
A prejudiced or biased juror is incompetent to serve on a jury, and, if he is erroneously permitted to do so, the verdict and sentence will be set aside on appeal by this court, because the accused has been- deprived of his constitutional right to “an impartial trial.”
How then can it be argued logically that a biased and prejudiced' district judge is competent to sit as a jury to pass upon the facts in a misdemeanor case, without violating the constitutional right of the accused to “an impartial trial?”.
Let us concede, for the sake of argument, that there is no recusation statute in this state, expressly declaring that a district judge shall be incompetent, because of bias or prejudice, to preside at the trial- of a misdemeanor; yet this court is clothed, in the absence of such statute, with ample authority under our organic law to,enforce the constitutional right of every citizen to “an impartial trial,” by declaring that a biased or prejudiced judge shall not sit in such eases, because he is compelled to act as jury as well as judge.
The right to recuse a district judge in these eases does not necessarily arise under Act 40 of T880, but emanates from the Bill of Rights itself of the Constitution, guaranteeing to every citizen of this state accused of *939crime the inalienable right to “an impartial trial,” and it is the plain duty of this court, as the highest tribunal of justice in this state, to see that a constitutional right so essential to the protection of the liberty of the citizen shall' be preserved in its full integrity at all times.
Recurring to Act 40 of 1880, it must be conceded that, if the recusation of a district judge is sought under said act on the ground of bias or prejudice, such recusation must fall under head 1 of section 1 of said act: “His being interested in the cause.” This ground of recusation applies to both civil and criminal cases. State v. Banta, 122 La. 238, 47 South. 538; State v. Judge, 41 La. Ann. 319, 6 South. 22.
Obviously “interested in the cause,” as relating .to a criminal case, cannot mean pecuniary interest. Nor does it mean interested in faW1 of the accused, as a judge may be recused because:
“Second. His being related to one of the parties -within the fourth degree.”
“Fourth. His being father-in-law, son-in-law, or brother-in-law of one of the parties.” Section 1, Act 40, 1880.
Evidently these- grounds for recusation are not in favor of the accused in a criminal case, but in favor of the state and the public, and are intended to prevent a judge, because of his “personal interest,” from presiding at the trial of his own relations, whether by blood or by marriage.
“Interested in the cause” under head 1 of section 1 of said act means, therefore, not an interest in. the person on trial, but an interest against him, an interest adverse or hostile to him, and as interpreted by this court, includes “personal enmity” and “personal prejudice,” against .the accused, although unaccompanied by any other “personal interest” on the part of the trial judge.
In the case of State v. Banta, 122 La. 235, 47 South. 538, a motion was filed to recuse the judge upon the ground that “he is his (mover’s) personal enemy and is so biased and prejudiced as to be incapable of giving him (mover) a fair and impartial trial.”
The motion to recuse was overruled by the trial judge on the ground that “the allegations contained in the motion are frivolous— they are without foundation.” Under an application for writs of certiorari and prohibition, this court held that the charge was not frivolous, and set aside the ruling of the trial judge, who had overruled the motion himself.
It is to be observed that in the Banta Case no interest upon the part of the trial judge is alleged, other than that he was “the personal enemy” of the accused. “Prejudice or bias” under the act is necessarily “personal,” as well as “enmity.” If, therefore, “personal enmity” can be read into the statute under the head of the judges “being interested in the cause,” it is not logically possible to exclude from the statute under this same head “personal bias” or “personal prejudice.” A prejudice against certain offenses is purely of an impersonal character, and no one contends that such prejudice is a ground for recusation, or that it is included in the -statute. That this is the view taken of this matter is shown by the decision in the case of State v. Hayes, 127 La. 762, 53 South. 983. In that case the rela’trix moved to recuse the presiding judge of the district court “on the ground of prejudice against her, as shown by his remarks at various times and places, and particularly in the clerk’s office in the town of Covington, in the presence of certain named persons, and as further shown by the excessive and unlawful bonds exacted of relatrix, being $2,000 in each of three cases, and $5,-000 in the last case.”
“Prejudice against her” is unquestionably “personal prejudice.” It is to be noted that in that case also “no interest” is alleged except “personal prejudice.”
The motion to recuse was overruled by the *941judge “as frivolous and intended merely for delay.”
The court said in the Hayes Case:
“In State v. Banta, 122 La. 235, 47 South. 538, the ground for recusation was that the judge was ‘an enemy of the accused,’ and incapable of giving him a fair trial. This decision was res nova, and we do not think its doctrine should be extended to a case of alleged Prejudice, unsupported by averments of facts sufficient to show a hostile animus on the part .of the judge towards the accused. Otherwise, the administration of justice might be hampered to a serious extent by baseless allegations of prejudice in the mind of every trial judge.”
In the Banta Case, neither the alleged “personal enmity,” of the trial judge, nor in the Hayes Case the alleged “personal prejudice” of the trial judge was predicated upon any facts stated in the motion. The Banta Case, however, was not overruled. So, under the Banta Case “personal enmity” remained a ground for recusation, and it is clearly inferred from the language used by the court in the Hayes Case that “personal prejudice” is also a ground for recusation, if supported by averments- of facts sufficient to show “a hostile animus” on the part of the judge “towards the accused.”
There is no particular charm or technicality about the use of the word “personal enemy” as “personal enmity” and “personal prejudice” are but different degrees of “hostile animus” on the part of the trial judge, and it is this “hostile animus” in the mind of a trial judge that constitutes the basis itself for the recusation, or “his being interested in the cause,” to use the words of the statute.
The Banta Case, therefore, should be modified only to the extent of requiring the. facts upon which the alleged “personal enmity” is based to be set forth in the motion for recusation, in order to make the Banta Case conform to the Hayes Case in this- respect, and to the more recent ease of State ex rel. Martin v. Judge, 152 La. 768, 94 South. 389, in which this court said:
“As we have said in other eases, it is not sufficient that the motion allege that the judge is interested, biased, or prejudiced; but- facts must be set forth which, if proven, would sustain that conclusion. State ex rel. v. Nunez, supra; 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 Banta Case -was again criticized in the case of State v. Morgan, 142 La. 764, 77 South. 588, but, as declared in the case of State v. Simone, 97 South. 302,1 decided June 30, 1923, it was not overruled.
In the Simone Case, the court, through Mr. Chief Justice O’Niell, the organ of the court in the Morgan Case, said:
“The allegations on which the judge was asked to recuse himself were, for the most part, the same that were declared sufficient, if true, to -compel the judge to recuse himself in the case of State v. Banta, 122 La. 235, 47 South. 538. * * * The correctness of the ruling in Banta’s Case was questioned to some extent in State v. Morgan, 142 La. 755, 77 South. 588; but the decision-in Banta’s Case was not overruled. The defendant in this case, therefore, 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 Simone Case is the latest expression of this court on the subject of “prejudice” on the part of the trial judge, and in the Simone Case the Banta Case is expressly approved as to its statement that “personal enmity” -constitutes a ground of recusation under the statute, notwithstanding the adverse criticism of the Banta Case in the Morgan Case.
The mere fact that in one or two cases decided by this court it appears that “personal enmity” or “personal prejudice” was founded upon “personal interest” does not affect the Banta Case, the Hayes Case, or the Simone *944Case, as “hostile animus” on the part of the judge may exist independently of “personal interest,” and has been held, without any additional “personal interest,” to be sufficient and within the recusation statute in those cases.
It is the “hostile animus” of the trial judge against the accused, and not its origin, which renders him incompetent to sit in judgment in any ease, and it is solely with this condition of the judicial mind that we are called upon to deal in recusation cases.
If this court should see fit to cut the Gordian knot by overruling these cases, because “prejudice” or “bias” . is not contained eo nomine in the statute, it would still be confronted with the Bill of Rights, guaranteeing to every person accused of crime the constitutional right to an “impartial trial,” and this fundamental right cannot be denied by this court to any citizen of this state, without overthrowing the Constitution itself, and establishing judicial tyranny in our midst by compelling accused persons to be tried in misdemeanor cases before biased and prejudiced judges.
While it is imperative that we accord to every citizen the free exercise of his constitutional right to “an impartial trial,” it is equally imperative, as said in the Hayes Case, that the administration of.justice be not “hampered to a serious extent by baseless allegations of prejudice in the mind of every trial judge,” aná that the ethics of the legal profession be strictly observed in preferring charges of enmity, bia^, or prejudice against trial judges.
The charge in this case is that the trial judge is “an enemy” of the accused, and, as the motion states no facts on which this charge can be predicated, it must be deemed deficient and frivolous, and was properly overruled by the trial judge.
I therefore dissent as to the overruling of the Banta Case, and as to the holding that bias or prejudice is not a ground for recusation of a trial judge.
Ante, p. 73.