This statute has often been construed by this court in criminal cases and by the Supreme Court in civil cases. The following cases are cited. Pruitt v. State, 62 Okla. Cr. 38, 70 P.2d 129; Fisk v. Venable, 61 Okla. Cr. 360, 68 P.2d 425; Castleberry v. Jones, 68 Okla. Cr. 414, 99 P.2d 174; Lee v. State, 66 Okla. Cr. 351, 92 P.2d 591; Ingles v. McMillan, 5 Okla. Cr. 130, 113 P. 998, 45 L.R.A., N.S., 511; Ex parte Hudson, 3 Okla. Cr. 393, 106 P. 540, 107 P. 735; Lewis v. Russell, 4 Okla. Cr. 129, 111 P. 818; Yeargain v. Venable, 65 Okla. Cr. 225, 84 P.2d 812; Johnson v. Wells, 5 Okla. Cr. 599, 115 P. 375; Saddler v. Crump, 30 Okla. Cr. 157, 235 P. 263. In civil cases: Holloway v. Hall, 79 Okla. 163, 192 P. 219; Prowant v. Sealy, 77 Okla. 244, 187 P. 235; Fox v. Ziehme, 30 Okla. 673, 120 P. 285; Myers v. Bailey, 26 Okla. 133, 109 P. 820.
¶8 The district court added, in its conclusions of law, that, "[i]n order to maintain and foster proper respect and confidence of the people in the courts, the courts must be presided over by unprejudiced, unbiased, impartial, and disinterested judges and all doubt and suspicion to the contrary must be jealously guarded against." Castleberry v. Jones , 68 Okla. Crim. 414, 424, 99 P.2d 174, 179 (1940). It further noted that, "even if there is no showing of actual bias ... due process is denied by circumstances that create the likelihood or the appearance of bias."
The party alleging an abuse of discretion must demonstrate that the trial judge harbored prejudice against him and that this prejudice materially affected the party's rights at trial. Hatch v. State, 662 P.2d 1377 (Okla. Cr. 1983), cert. denied, ___ U.S. ___, 106 S.Ct. 834, 88 L.Ed.2d 805 (1986); Castleberry v. Jones, 68 Okla. Cr. 414, 99 P.2d 174 (1940). The actions of the trial judge urged by appellant as demonstrating prejudice simply were not ones which endangered appellant's rights at trial.
OKLA. CONST. art. II, § 6. "Prejudice" in this sense refers to the "presence of such state of mind or feeling as might prevent him from giving defendant a fair trial." Castleberry v. Jones, 68 Okla. Cr. 414, 99 P.2d 174 (1940). A trial judge may have a duty to disqualify despite a personal belief that he is free of bias:
They did not however, reflect any bias toward the appellant himself. The case upon which the appellant primarily relies to support his argument, Castleberry v. Jones, 68 Okla. Cr. 414, 99 P.2d 174 (1940), is distinguishable from the present case. In Castleberry, the judge who presided over the defendant's trial was clearly biased against the defendant.
Title 20 O.S. 1971 §§ 1401[ 20-1401]-1403 [ 20-1403]. See for instance, Castleberry v. Jones, 68 Okla. Cr. 414, 99 P.2d 174 (1940), and Fisk v. Venable, 61 Okla. Cr. 360, 68 P.2d 425 (1937). But of course this approach is impossible where a party does not become aware of possible bias until the hearing has begun.
Recognizing this fact, it is universally held that a judge who, before hearing a criminal case expresses conviction that the accused is guilty, cannot give that accused a fair and impartial hearing, and is thereby disqualified to sit as a trial judge. See Stamp v. Commonwealth (1922), 195 Ky. 404, 243 S.W. 27; Castleberry v. Jones (1940), 68 Okla. Cr. 414, 99 P.2d 174; Calhoun v. Superior Court of San Diego County (1958), 51 Cal.2d 257, 331 P.2d 648; compare Noel State Bank v. Blakely Real Estate Improvement Corp., 321 Ill. App. 594, 53 N.E.2d 621; Evans v. Superior Court of Los Angeles County (1930), 107 Cal.App. 372, 290 P. 662. In the case before us, the trial judge, from evidence he heard against David Goss, concluded that the defendant Robinson mercilessly shot and killed the victim of the homicide during a robbery.
The contention that this court has no authority to issue the writ of mandamus in any case is wholly without merit. Eubanks v. Cole, District Judge, 4 Okla. Cr. 25, 109 P. 736; McLeod v. Graham, 6 Okla. Cr. 197, 118 P. 160; Brummitt v. Higgins, 80 Okla. Cr. 183, 157 P.2d 922; Castleberry v. Jones, 68 Okla. Cr. 444, 99 P.2d 174; Fisk v. Venable, Judge, 61 Okla. Cr. 360, 68 P.2d 425. The jurisdiction of this court to act in this particular case is attacked on the ground that in no case may the Criminal Court of Appeals issue the writ of mandamus to a justice of the peace court, for the reason that its right to issue the writ is solely in aid of its appellate jurisdiction, and since no appeal will lie from the justice of the peace to the Criminal Court of Appeals, that mandamus may not issue to the justice of the peace court.
The writ is therefore denied". See, also, Kelly v. Ferguson, 5 Okla. Cr. R. 316, 114 P. 631; Rourke v. Bevis, 171 Okla. 392, 42 P.2d 898; Fisk v. Venable, 61 Okla. Cr. R. 360, 68 P.2d 425; Castleberry v. Jones, 68 Okla. Cr. R. 414, 99 P.2d 174. From an examination of the record in this case, the evidence offered by the defendant was not, in our opinion, sufficient to support the contention that the trial judge was disqualified.