(dissenting) : A judge is never justified in granting a change of venue except for some of the grounds prescribed in the statute. The prejudice of a party against a judge is not a cause for change, but it is the prejudice of the judge that disqualifies him to try a case. That prejudice must not only exist, but it must be shown to exist, before the court is warranted in allowing a change ; and a reviewing court cannot say that error is committed in refusing the change on account of prejudice unless the evidence in the record clearly establishes the prejudice of the judge. (Gen. Stat. 1899, § 5423; Gen. Stat. 1897, ch. 102, § 173; City of Emporia v. Volmer, 12 Kan. 622; The State v. Bohan, 19 id. 28.) If the opposite view were taken, all that would be necessary for a party to do to obtain a change of venue, and thus secure postponement and delay, would be to speak disrespectfully of the judge or to criticize and *609censure Mm, and then appear before the court and demand the change — a very dangerous precedent to establish. It is safer to adhere to the rule of the statute, which requires a showing of prejudice of the j udge ; and in the present case there is an entire absence of evidence tending to show prejudice on his part toward the defendant.
In my opinion, the information states an offense, and the court decided correctly in overruling the motion to quash. It is said to be defective because it did not in terms expressly allege that the publication tended to provoke Albert Perry to wrath or expose him to public hatred, etc. It did allege that the publication was made with intent to expose Albert Perry to hatred and contempt, and to deprive him of public confidence, etc. The criminal code provides that an information • which contains the title of the cause, the names of the court and of the parties, and “a statement of the facts constituting the offense, in plain and concise language, without repetition.,” is sufficient. The facts narrated in this information certainly show that the publication against Perry was defamatory and libelous. It not only alleges that the libel was intended to expose Perry to public hatred and contempt, but upon its face it shows that it could have no other effect. A statement that it tended to expose him to public hatred and contempt would be no more than a conclusion, and no more than is clearly apparent from the averments of the information.- Again, the information, in terms that cannot be misunderstood, charges Perry with fraud and dishonesty ; and where the publication is prima facie libelous and would necessarily expose' him to public hatred and contempt, and deprive him of public confidence, an additional averment that such is the effect of the publication is the pleading of a *610conclusion that is unnecessary. The question was directly involved and decided in State v. Nichols, 15 Wash. 1, 45 Pac. 647, where it was held that an information substantially similar to the one under consideration, and which omitted the phrase “tending to expose,” etc., was not fatally defective.
The objectionable instruction is not a sufficient ground for reversal. The judge did not by the inapt use of the word “satisfy” intend to change the burden of proof, nor do I think that the jury so understood him. In other instructions, and in clear and forceful language, the jury were told that the burden of proof rested upon the state in the trial; that it never shifted from the state to the defendant; that it rested upon the state to prove every ingredient of the offense, and that if it failed so to prove any material fact there must be an acquittal. In six different instructions the court also stated the doctrine of reasonable doubt, and plainly informed the jury that the onus was upon the state, and that a reasonable doubt as to any ingredient of the offense or as to the defendant's guilt entitled him to a verdict of acquittal. As the instructions so given in close connection with the faulty one repeatedly enforced the view that the burden remained upon the state, and that a reasonable doubt as to any essential feature of the case would operate to acquit, the use of the word “satisfy,” although subject to criticism, must have been understood only to require of the defendant that he introduce evidence to raise a reasonable doubt as to his knowledge and authority in regard to the publication.
The publication was libelous; it was published in a paper of which defendant was both editor and publisher ; that it so appeared in his paper was not denied, and the evidence clearly connected him with the *611publication, and constituted, at least, prima facie proof that the publication was made with his knowledge and authority. To relieve himself and meet the case so made against him, it devolved upon him to introduce proof that it was done without his knowledge and authority. Instead of using the word “show” or the words “introduce testimony tending to show,” the court employed the word “satisfy.” It is manifest that the court did not intend to place the burden of proof upon the defendant as to this feature of the case, because almost in the same breath the jury were informed that the burden was upon the state. Nor did it intend that the burden must be discharged by the defendant by a degree of evidence that would satisfy the jury beyond a reasonable doubt, for in close connection with this the jury were informed that a reasonable doubt as to whether the defendant knowingly and wilfully made the publication would prevent a conviction. It is conceded that it was incumbent upon the defendant to rebut the presumption resulting from the publication in his paper, and this instruction, when read in connection with the others, only meant that it was incumbent on the defendant to satisfy the jury to such an extent as would enable them to say that there was a reasonable doubt as to whether or not he authorized or had knowledge of the publication.
In a strikingly similar case it was held that the inapt use of a word which, standing alone, might seem to shift the burden of proof was insufficient to warrant a reversal. It was there held that the charge of the court was to be taken as a whole, and was not to be disposed of by a process of dissection, and if, when so taken, the jury could not have gained an incorrect impression as to the burden of proof, the judg*612ment should not be reversed. The conviction in that case was for an offense upon which the severest penalty r f the law is visited, and yet the instruction was more faulty than the one under consideration. (The State v. Earnest, 56 Kan. 31, 42 Pac. 359.) The testimony in the case and the rulings thereon are not preserved in the record, but the entire charge of the court, which is here, indicates a disposition to give the defendant a fair trial, and we see nothing in the record which justifies a reversal.
I am authorized to say that Justice Smith joins in dissenting from the judgment of reversal.