The opinion
MILLER, J.
.(dissenting). I -agree with the majority opinion that this court has jurisdiction to hear and determine this action, and may by mandamus compel a district judge to disqualify. I do -not agree with the majority opinion that, under the record in this case, the writ, should issue.
The petitioner instituted an original action in this court by filing a petition i‘i which he set 'Out numerous grounds which he' claims disqualify Judge Bozarth to preside as trial judge in a certain criminal action pending against the petitioner in Ok-mulgee county. He alleges acts and things done by him against Judge Bozarth which he says have paused a prejudice in the mind of Judge Bozarth against him. The evidence discloses that each and all of these acts and things so done by him were done since the impaneling of the grand jury in Okmulgee county, by Judge B'Ozarth, which returned an indictment against the petitioner. The evidence is convincing to my mind that the petitioner did not want Judge Bozarth to preside at the trial of Ms case and be pursued a course of notion intended to compel him to disqualify.
E. E. Ho'Od testified in behalf of tbe reti'ioner in this case that he went to Judge Bozarth and told him an application would be made to disqualify him as trial judge. That they were considering three different ways to frame the application : First, just a general ground to disqualify him; second, on the ground that he was subconsciously prejudiced, and should therefore disqualify; and, third, they would make a personal attack upon him. outlining the nature of the attack proposed to be made. When on the witness stand Hood was asked if, on this presentation of tbe proposition. Judge Bozarth agreed to disqualify. He answered that Judge Bo1» zarth did hot; that Judge Bozarth said be would rather they would file the application on the second ground proposed, as be would not like to have them make a personal attack upon him. The witness represented to Judge Bozarth that he was there ns h'is friend.
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This evidence convinces me that its purpose was to so intimidate Judge Bozarth by. -confronting him with fh-e proposed personal attack that he would disqualify rather than permit the proposed personal attack to be made. Notwithstanding he was confronted with this proposed personal attack, he refused to disqualify, and when the personal attack was made he still refused to disqualify, and asserted that in his own opinion he was not disqualified, and,- not being disqualified, it was his duty to refuse to disqualify. He, at least, had the courage of his convictions to do and perform his duties íuíder his oath of office, notwithstanding the impending personal attack.
The fact that an intense bitterness of feeling and prejudice may exist among the populace of the city and county of Okmul-gee against the petitioner, and that this feeling is known to Judge Bozarth, does not disqualify him. The fact that he refused 'to disqualify in the face of the proposed personal attack, but stood by his post of duty, lis strong and convincing evidence that he would not be swayed by the clamor, feeling, or prejudice of the populace. The prejudice or ill feeling of the citizens of Okmulgee. county against the petitioner, if any exists, would be groitnds for a change of venue, but not to disqualify the judge. If a change of venue were granted, the case would undoubtedly be tried before some other judge. The only statement in the majority opinion upon which we think this court could base the issuing of the writ of mandamus is as follows:
“* * * And considering, also, the fact that circumstances have arisen between Judge Bozarth and the petitioner, J. B. A. Robertson, that have engendered an ill feeling on the part of Judge Bozarth against the petitioner, J. B. A. Robertson, and that Judge Bozarth testified on the witness stand that such ill feeling had been engendered and now exists against the petitioner.”
The evidence shows • that whatever ill feeling Judge Bozarth may entertain against the petitioner, J. B. A. Robertson, was engendered by acts and things done by the petitioner against Judge Bozarth after he impaneled the grand jury that brought in the indictment against the petitioner. 'All of the evidence upon which the foregoing statement of the majority opinion is based was brought out in the defense. The demurrer -of the respondent 'to the petitioner’s evidence - was- pending and undisposed of. Had the demurrer to the evidence been passed upon by the court when ' the plaintiff rested his case, or before the respondent began the introduction of his -evidence, the testimony on which said statement was based could not have been considered by this court, for it had not yet been given.
Judge Bozarth testified that, notwithstanding the things done against him by the petitioner which had caused an ill feeling toward t-he petitioner, he was not prejudiced against him to the extent that h-e could not give him a fair and impartial trial. The record- in this ease discloses that lHStitioner had a determined purpose from the very beginning to force the disqualification of Judge Bozarth as trial judge, and to accomplish this purpose the supreme effort has been made by the petitioner. This kind of practice should not •be either encouraged or tolerated.
I cannot agree with the conclusion reached by the majority opinion tha-t the writ 'of mandamus should issue. I think 'it should have been denied.