extends to judges of inferior and limited, as well as to those of. general, jurisdiction as to liability for official acts.21

§ 37. Change of judge

Under the constitutional provision that right and justice shall be administered without prejudice, a change of judge for bias or prejudice is a constitutional right.22

When prejudice of the trial judge is made ground for a motion for change of judge, the Legislature may prescribe the method of determining such matter, but it cannot abolish such ground of disqualification.23

The interest of the district judge as a resident taxpayer of the petitioning municipality in condemnation proceedings will not dis

21 Waugh v. Dibbens, 61 Okl. 221, 160 P. 589, L. R. A. 1917B, 360. A county judge, in rendering judgment in a case pending in his court, acts judicially, and is not amenable to a civil action for damages, though the judgment was erroneous, and, in rendering it, he erroneously exceeds the jurisdiction of his court. Comstock v. Eagleton, 69 P. 955, 11 Okl. 487, appeal dismissed (1905) 25 S. Ct. 210, 196 U. S. 99, 49 L. Ed. 402.

Where an administrator, pursuant to order of county court, paid into court an amount in excess of inheritance tax, and the county judge failed to turn over money after expiration of term, the money did not come into his hands as county judge so as to render his bond liable. Pitman v. State, 59 Okl. 270, 158 P. 1137.

22 Rea v. State, 105 P. 384, 3 Okl. Cr. 276, 139 Am. St. Rep. 954.

Sess. Laws 1908, p. 285, c. 27, art. 1, § 8, provides that no judge of the county court shall sit in any proceeding after a party has filed an affidavit in writing, corroborated by two credible persons, that affiant has reason to believe and does believe that the judge is prejudiced, where he cannot have a fair and impartial trial before him. Held, that this provision does not abridge the declaration in Bill of Rights that right and justice shall be administered without sale, denial, delay, or prejudice. Ex parte Ellis, 105 P. 184, 3 Okl. Cr. 220, 25 L. R. A. (N. S.) 653, Ann. Cas. 1912A, 863. Under Bill of Rights, art. 2, § 6, providing that right and justice shall be administered without sale, denial, delay, or prejudice as well as by the unwritten dictates of natural justice, the courts are commanded to administer justice without prejudice. Id.

23 Mayes v. Pitchford, 109 P. 821, 26 Okl. 129; Ex parte Hudson, 106 P. 540, 3 Okl. Cr. 393, rehearing denied 107 P. 735, 3 Okl. Cr. 393; Ex parte Hines, 106 P. 544, 3 Okl. Cr. 408, rehearing denied 107 P. 738, 3 Okl. Cr. 408. Const. Bill of Rights, art. 2, § 6, prohibits a judge from trying a case in which he is prejudiced by or for either party. McCullough v. Davis, 11 Okl. Cr. 431, 147 P. 779.

A judge may be disqualified for prejudice in favor of accused, though such disqualification is not provided for by statute, since it rests on constitutional grounds. State v. Brown, 126 P. 245, 8 Okl. Cr. 40, Ann. Cas. 1914C, 394.

qualify him; 24 but it has been held otherwise where the action constituted an attack on the validity of a special bond election to secure money to build a courthouse and jail.25 That a county judge was disqualified by prejudice in the matter of the probate of a will did not disqualify him to determine other questions in the administration of the estate.26

The word "party," as used in the statute disqualifying a judge to sit in a case, wherein one party is related to him within the fourth degree of consanguinity, includes any person directly interested in the subject-matter of the suit or the result of the same, though not a party of record.27 A judge is disqualified to sit in a case in which he is a material witness 28 or in which he participated as an attorney before his elevation to the bench.29 This rule seems to have been qualified in one criminal case,30 but cannot be relaxed in civil cases, particularly where there are contesting litigants. It has been held that a county judge was not disqualified from settling a guardian's account because he acted as attorney for the guardian in the matter of his appointment.31

24 Lawton Rapid Transit Ry. Co. v. City of Lawton, 122 P. 212, 31 Okl. 458. 25 Mackey v. Crump, 49 Okl. 578, 153 P. 1128; Rev. Laws 1910, § 5812. 26 State v. Johnson, 139 P. 699, 40 Okl. 511.

27 State v. Pitchford, 141 P. 433, 43 Okl. 105.

Under Rev. Laws 1910, § 5812, a judge is disqualified to hear a cause wherein his son is employed on a contingent fee as attorney for one party and, under section 248, giving him a lien, has an interest in the result. State v. Pitchford, 141 P. 433, 43 Okl. 105.

In a proceeding in the county court by a guardian to invest the money of his ward pursuant to Comp. Laws 1909, § 5513, the guardian was a "party" thereto within Comp. Laws 1909, § 5139, disqualifying a judge to act in any proceeding in which he may be related to any party within the fourth degree; and a brother-in-law of the guardian was disqualified to sit as judge in the proceeding. Hengst v. Burnett, 40 Okl. 42, 135 P. 1062.

28 Powers v. Cook, 48 Okl. 43, 149 P. 1121, L. R. A. 1915F, 766.

29 Dodd v. State, 115 P. 632, 5 Okl. Cr. 513.

30 The mere fact that a judge may be witness in case, or that he has conducted a preliminary examination resulting in a prosecution of defendant, in the absence of any showing of bias or prejudice on his part, does not disqualify him. State v. Lockridge, 118 P. 152, 6 Okl. Cr. 216, 45 L. R. A. (N. S.) 525, Ann. Cas. 1913C, 251.

31 Title Guaranty & Surety Co. v. Slinker, 128 P. 696, 35 Okl. 128; Id., 128 P. 698, 35 Okl. 153.

Public confidence in the judicial system demands that the cause be tried by an unprejudiced judge, and a denial of a change of judge on the ground of prejudice will be presumed a denial of justice, at least where the prejudice is clearly made to appear.3

32

A constitutional provision guaranteeing every person charged with crime a trial without prejudice does not include the opinion of the judge as to the guilt or innocence of the defendant; but to disqualify the judge, it must appear that he is biased against him to such an extent as will prevent his giving a fair trial.33

Judicial officers should abstain from participating in public meetings in which questions are discussed, which might afterward come before them for decision. A judge should not commit himself on questions of fact or law which may come before him, until the matter is properly presented in open court. There is a manifest difference between being prejudiced against the commission of a crime and being prejudiced against a person charged with its commission, and the fact that a judge is prejudiced against the crime does not disqualify him from presiding at a criminal trial.31

32 Ex parte Ellis, 105 P. 184, 3 Okl. Cr. 220, 25 L. R. A. (N. S.) 653, Ann. Cas. 1912A, 863. Accused has a right to a change of judge where the presiding judge is prejudiced against him. Lewis v. Russell, 111 P. 818, 4 Okl. Cr. 129.

Under the law prior to the passage of Act March 22, 1909 (Laws 1909, c. 14; Snyder's Comp. Laws 1909, §§ 2012-2017), it was error to refuse a change of judge, where defendant filed an affidavit stating that the presiding judge was prejudiced against him, and for that reason he could not obtain a fair trial before such judge. Cavenees v. State, 109 P. 125, 3 Okl. Cr. 729.

Where a judge had not consulted with the county attorney as to the facts in a perjury case, and knew nothing concerning the facts thereof further than that the case was pending in his court, the fact that the judge stated upon hearing of a demurrer to the information that he thought the county attorney was correct in desiring the trial before the trial of another person for murder for whom the one accused of perjury was stated to be an important witness, so that, if the latter was innocent of perjury alleged to have been committed in a previous trial of the one charged with murder, such person might have the benefit of his evidence, and that, if the one charged with perjury was guilty, the state might have the benefit of the exclusion of his testimony, did not show prejudice of the judge towards the one charged with perjury so as to disqualify him from presiding at the trial. O'Brien v. Clark, 113 P. 543, 5 Okl. Cr. 112.

33 Ingles v. McMillan, 113 P. 998, 5 Okl. Cr. 130, 45 L. R. A. (N. S.) 511. 34 Crawford v. Ferguson, 115 P. 278, 5 Okl. Cr. 377, 45 L. R. A. (N. S.) 519;

§ 41.

Objections and procedure

Where accused in good faith desires a change of judge on account of prejudice, he should exercise due diligence as soon as he can conveniently assert his rights after knowledge of such prejudice.35 An application for change of judge for bias, stating no facts and filed after the jury is impaneled, is properly denied.86 A defendant, seeking to disqualify a trial judge on any ground, must follow the statutory procedure. The application or affidavit for change of judge for prejudice must set forth the facts on which the claim is based.38

37

Where speeches made by the judge in his campaign for re-election showed that he was prejudiced against defendant, an application for change of judge should have been granted.39

Where a district judge is disqualified to hear and determine a cause pending before him, and refuses to certify his disqualification when requested in the manner provided by law, mandamus will lie.40

§ 42.

Form-Application for disqualification of judge

APPLICATION FOR DISQUALIFICATION OF JUDGE

Comes now the above-named defendant, J. D., and, after having given reasonable notice to the plaintiff herein, makes this his application for a certification of disqualification of the Honorable

-, judge of this court, in the above-entitled cause, and in support hereof this defendant states:

That this is an action instituted by the plaintiffs for the purpose

State v. Lockridge, 118 P. 152, 6 Okl. Cr. 216, 45 L. R. A. (N. S.) 525, Ann. Cas. 1913C, 251.

35 Ingles v. McMillan, 113 P. 998, 5 Okl. Cr. 130, 45 L. R. A. (N. S.) 511. 36 White v. State, 50 Okl. 97, 104, 150 P. 716, 718.

37 Ex parte Hudson, 106 P. 540, 3 Okl. Cr. 393, rehearing denied 107 P. 735, 3 Okl. Cr. 393; Ex parte Hines, 106 P. 544, 3 Okl. Cr. 408, rehearing denied, 107 P. 738, 3 Okl. Cr. 408.

38 Lewis v. Russell, 4 Okl. Cr. 129, 111 P. 818; Myers v. Bailey, 109 P. 820, 26 Okl. 133; Mayes v. Pitchford, 109 P. 821, 26 Okl. 129; Kelly v. Ferguson, 114 P. 631, 5 Okl. Cr. 316; Id., 115 P. 284, 5 Okl. Cr. 700.

Where it is sought to disqualify a judge because a material witness for defendant, the application for change of judge must clearly show wherein the testimony of the judge is material. Johnson v. Wells, 115 P. 375, 5 Okl. Cr. 599.

39 McCullough v. Davis, 11 Okl. Cr. 431, 147 P. 779.

40 State v. Fullerton, 76 Okl. 35, 183 P. 979.

of quieting their title to certain property described as follows, to wit: [Describe land.] That said action is a suit in equity, and said plaintiffs seek herein to have canceled, set aside, vacated, and held for naught a certain option contract made, executed, and delivered by the plaintiffs on or about -, 19, a copy of which said option contract is attached to the plaintiffs' petition herein, marked Exhibit A, and to which reference is hereby made, and to have canceled, set aside, and held for naught a certain warranty deed and a certain contract, both dated -, 19-, executed by the plaintiffs to this defendant, J. D., a copy of which said deed and contract are attached to the plaintiffs' petition, marked Exhibits B and C, and to which reference is hereby made.

That a prior action was heretofore instituted in this court by the plaintiffs herein against one F. S. to have canceled and set aside certain instruments of conveyance made, executed, and delivered by the said plaintiffs to the said F. S., which said action is No. in the district court of county, Oklahoma, and which

said action was heretofore, on or about the 19-, tried in this court before his honor, district court of

county, Oklahoma.

day of -, judge of the said

That in said action last above referred to it was the contention of the said defendant therein, F. S., that at least a part of the consideration for the deed executed to him by the plaintiffs, and which the plaintiff sought to have canceled, was certain financial and other assistance rendered by the said defendant, F. S., in connection with the conveyances to this defendant, J. D., and that upon the trial of said cause No. in the district court of county, Oklahoma, before his honor, judge of said court, testimony was introduced and heard as to the transactions resulting in the option contract of -, 19—, executed by the plaintiffs to this defendant, J. D., and with reference to the contract and deed of 19, executed by said plaintiffs to this defendant, J. D. That this defendant, J. D., was not a party to said cause No. in the district court of county, Oklahoma, and was

not represented or heard therein.

That in the present action the plaintiffs seek to have the instruments above mentioned, which were executed by the plaintiffs to this defendant, canceled upon the ground, among others, that said