Johnson v. Wells, County Judge , 5 Okla. Crim. 599 ( 1911 )

PEE OTJEIAM.

The petition for a writ of mandamus in these cases shows that the application for a change of judge was in each case presented to and acted upon by the respondent on the 16th day of January, 1911, but the petition for a writ of mandamus was not filed in this court until the 6th day of May, 1911, which was more than 90 days after respondent had declined to disqualify himself to act as judge in these cases. It is the duty of an attorney, when he desires to secure a writ of mandamus to disqualify a judge, to present his petition therefor to this court as soon after the judge has declined to disqualify himself as can be conveniently done. Counsel cannot file an application for a change of judge, and, after the judge has acted upon such application, allow the matter to rest until the case is about to be tried, and then use such application as a ground for a continuance. Counsel must be vigilant, if they desire the assistance of this court. We therefore hold that the petition for a writ of mandamus in these cases was not filed in this court in proper time.

• The petition further alleges that respondent is a material witness for the petitioner upon the trial of these cases. Even if the petition for a writ of mandamus had been filed in time, we could not disqualify respondent upon the bare allegation that he was a material witness for the petitioner. If so, we would place it within the power of any defendant to disqualify a judge in anj-ease where he was willing to swear that such judge was a material witness in his behalf. If this ground is to be relied upon, the application for a change of judge must, by proper averments, show that such judge, as a matter of fact, is a material witness in said cause, and these allegations must be contained in the petition for a writ of mandamus to enable this court to determine as to whether a change of judge should be granted upon this ground.

For the reasons above stated, we decline to issue the alternative writ of mandamus prayed for.