The petitioner, Jake Lewis, being charged in the District Court of Carter County with the crime of murder, on September 7, 1910, and within proper time, filed with the clerk of that court an application for a change of judge, in which it was stated in genеral terms that the respondent, S. H. Russell, judge of said court, because of his bias and prejudice against petitionеr, was disqualified to sit in said cause, and requesting that .he certify his disqualification as provided by law. The applicatiоn set forth no grounds or facts upon which the claim was made that respondent was prejudiced, and the latter rеfused to make the certificate requested. Thereupon petitioner filed in this court a petition for a writ оf mandamus requiring *131 respondent to execute the certificate desired, in which petition there was set out for thе first time the facts upon which the claim of prejudice was' made.
Prior to the passage of the act aрproved March 22, 1909 (art. 6, chap. 24, Snyder’s Comp. L. Okla.), the uncorroborated affidavit of the accused filed in a criminal case,' stating in general terms that because of the bias and prejudice of the presiding judge the Accusеd could not have á fair and impartial trial before him, of itself operated to disqualify such judge. The truth of the averment and the good faith of the defendant in making it were immaterial, and were not issuable anywhere at any time. A changе of judge imperatively resulted from the filing of the affidavit. Sec. 5427, Wilson’s Bev. and’ Ann. Stat. Okla. 1903;
Lincoln v. Territory,
These were some of the evils resulting from section 542? of Wilson’s Kev.’ & Ann. Stat., 1903, as said section was construed, to remedy which art. 6, chap. 24 of Snyder’s Comp. Laws was enacted. The right to a change of judge on aсcount of actual prejudice on the part of the presiding judge has not been abrogated, and it has been held that under sec. 6, art. 2 of our Constitution it cannot be. But under the Constitution it is the fact of prejudice and not the mere allegation thereof which disqualifies; and the time, manner and means of raising the question and of showing and determining the facts with respect' thereto are subject to legislative control. The act -approved March 22, 1909, was intеnded to regulate these matters, and- the portion thereof pertinent to the present case (see. 2016, Snyder’s Comp. L. Okla.) reads as follows:
“Any party to any cause pending in a court of 'record may in term time or in vacаtion file a written application with the clerk of the court, setting forth the grounds or facts upon which the claim is made that the judge is disqualified, and request him to so certify after reasonable notice to the other side, same to be presented to such judge, and upon his failure so to do within three days before said cause is set for trial, aрplication may be made to the proper tribunal for mandamus requiring him so to do.”
Under this section it is necessary-thаt the application for a change of judge be filed with the clerk of the court below; that it set forth the grounds, thаt is to say, the facts upon which the claim is made that the judge is prejudiced; and that the same be presented tо such judge, reasonable notice thereof -being first given to the prosecution. If the application is in compliance with
the
statute, and- the judge concedes that he is prejudiced, he certifies his disqualification as requеsted. On the other hand, if the application be in proper form, but the judge does not admit his disqualification and therеfore refuses to make the certificate, a petition may be filed for a writ of mandamus to require him to do sо; and the question of his disqualification
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will then be tried out and determined in the appellate court upon the petition, the response, and such proof as may be there offered. - But the filing of an application with the clеrk below in full compliance with the section above quoted is a prerequisite to the procuring of the writ. The fаcts upon which the claim of prejudice is made must be set out in the application so that the judge and the оther side may know what is claimed and upon what the claim is based; and it is not sufficient to set th’ose facts out for the first timе in the petition for the writ.
Myers v. Bailey,