White v. State , 50 Okla. 97 ( 1915 )

The application for a change of judge was properly denied. In the first place, it came too late after the jury was impaneled and there was absence of any showing that the facts were not known to the defendant prior to that time. In the second place, the defendant, only states that the judge was disqualified because he was biased and prejudiced against the defendants, but gives no facts upon which the ground of prejudice is based. See Lewis v. Russell, 4 Okla. Cr. 129, 111 P. 818. The affidavit does not set up that the judge is interested in the cause, or that he is related to any party thereto within the fourth degree, or that he had been of counsel, or that there is called in question the validity of any judgment or proceedings in which he was of counsel, or the validity of any paper prepared or signed by him as counsel, or that he is a witness in the cause. The affidavit wholly fails to fulfill the requirements of section 5812, Rev. Laws 1910, and the change of judge was properly denied. The fact that the judge who was trying the case was the same judge who forfeited the bond does not disqualify him.Title Guaranty Surety Co., v. Slinker, 35 Okla. 128,128 P. 696.

The next assignment of error is that the cause of action is barred by the statute of limitations, but the rule is as old as the law itself that no time runs against the state. The ground on which this doctrine rests is the great principle of public policy that the public interests shall not be prejudiced by the negligence of public officers, to whose care they are consigned. United States v. Knight, 14 Pet. 301, 315, 10 L.Ed. 465; State v. School District, 34 Kan. 237, 8 P. 208.

The next assignment of error relates to the exclusion by the court of certain evidence offered by the defendants. This consists of a number of questions, not answered, and with no statement of counsel as to what he expected to prove. From all that appears from the record, the answers of the witnesses might have been favorable to the plaintiff or might have been of such a character as to throw no light whatever on the issue. In O'Keefe v. Dillenbeck, 15 Okla. 437, 83 P. 540, it is held:

"Where an objection is made to the introduction of evidence, and the objection is sustained, the evidence should be set up in the record, or so much thereof as may be necessary to show to this court that its rejection was injurious to the party complaining, or the assignment of error for this reason will not be considered by this court."

The same rule is laid down in Packett Co. v. Clough, 20 Wall. 528, 22 L.Ed. 406; Whitney v. Fox, 116 U.S. 644, 17 Sup. Ct. 713, 41 L.Ed. 1145; Shauer v. Altertoe, 151 U.S. 607, 14 Sup. Ct. 442, 38 L.Ed. 286; Railroad Co. v.Smith, 21 Wall. 255, 22 L.Ed. 513; Thompson v. First Natl.Bank, 111 U.S. 529, 4 Sup. Ct. 689, 28 L.Ed. 507.

But we do not decide that if these questions had been answered favorably to the defendants it could have affected the result. The record in this case discloses that White was duly charged with the crime of selling whiskey; that an additional bond was required on his failure to appear when the case was first called for trial; that an alias warrant was issued for his arrest, and the bond was at this time fixed at $500; that this warrant was delivered to an officer who arrested White, and he was released by virtue of the bond now in suit; that, while the verification on this bond was taken before a notary public, the bond was approved by the judge of the county court; that White failed to appear at the time the case was called for trial, and the bond was forfeited. We can see no good reason why the sureties should not now fulfill the obligation of their bond.

We therefore recommend that the judgment be affirmed.

By the Court: It is so ordered.