Opinion
No. 1479
Opinion Filed April 26, 1910.
JUDGES — Disqualification — Procedure. A defendant, seeking to disqualify a trial judge upon any ground, must follow the procedure prescribed in section 5, Act. March 22, 1909 (Sess. Laws 1909, p .169, c. 14, art. 1).
(Syllabus by the Court.)
Mandamus by James Myers against Frank M. Bailey, District Judge. Writ denied.
W. W. Vaughan and McKnight Heskett, for plaintiff.
C. B. Case, for defendant.
This is an original action for a writ of mandamus, to require the defendant, as judge of the district court of the Fifteenth judicial district of the state of Oklahoma, to certify to his disqualification to try a criminal case wherein the plaintiff herein is defendant. The affidavit for disqualification states generally that said judge is so biased and prejudiced against the defendant that he will not give said defendant a fair and impartial trial, and that by reason of said bias and prejudice this defendant cannot have a fair and impartial trial before said judge.
The contention of plaintiff is that in this state a person charged with an offense against its laws has a constitutional right to be tried before a judge without prejudice, and that, when his affidavit is filed alleging prejudice, he is not bound to comply with the provisions of section 5 of the act of March 22, 1909 (Sess. Laws 1909, p. 169), by setting up the grounds or facts upon which the claim is made that the judge is disqualified. This same question was before the Criminal Court of Appeals of this state in Ex parte Hudson, 3 Okla. Cr. 393, 106 P. 540, wherein it was held that "before the petitioner can invoke the aid of this court he must comply with the requirements of this act or show cause for his failure to do so." We have examined the original opinion of Furman, P. J., and the opinion on rehearing by Owen, J., with great care, and are satisfied that the conclusion reached by that court is well sustained by reason and authority.
The writ must be denied.
All the Justices concur.