It provided that it should be unlawful for any person to have or keep in or about his place of residence more than one gallon of intoxicating liquor. Whitwell v. State, 72 Okla. Cr. 192, 114 P.2d 489, 490; Young v. State, 74 Okla. Cr. 64, 123 P.2d 294, 299. Whitwell v. State, 72 Okla. Cr. 192, 114 P.2d 489, 490; Haltom v. State, 58 Okla. Cr. 117, 50 P.2d 744, 746; Hull v. State, 61 Okla. Cr. 12, 65 P.2d 423, 425; Stump v. State, 66 Okla. Cr. 391, 92 P.2d 616, 619; Knighton v. State, 64 Okla. Cr. 322, 79 P.2d 1030, 1032; Robinson v. State, 71 Okla. Cr. 75, 108 P.2d 196, 198.
Decisions on the question have not been consistent. A clear majority, however, favor the view expressed in People v. Bak, supra; Kenney v. United States, 81 U.S. App.D.C. 259, 157 F.2d 442 (1946); United States v. Brunett, 53 F.2d 219 (8 Cir. 1931); People v. Healy, 126 Ill. App.2d 189, 261 N.E.2d 468 (1970); Bowen v. Commonwealth, 199 Ky. 400, 251 S.W. 625 (1923); Head v. Commonwealth, 199 Ky. 222, 250 S.W. 848 (1923); Burrell v. State, 207 Md. 278, 113 A.2d 884 (1955); Armstrong v. State, 195 Miss. 300, 15 So.2d 438 (1943); Hughes v. State, 85 Okla. Cr. 37, 185 P.2d 236 (1947); Young v. State, 74 Okla. Cr. 64, 123 P.2d 294 (1942); O'Brien v. State, 205 Tenn. 405, 326 S.W.2d 759 (1959); Johnson v. State, 163 Tex.Crim. 101, 289 S.W.2d 249 (1956); Ware v. State of Texas, 110 Tex.Crim. R., 7 S.W.2d 551 (1928); Contra, King v. United States, 282 F.2d 398 (4 Cir. 1960); United States v. Nagle, 34 F.2d 952 (N.D.N.Y. 1929); People v. Alfinito, 16 N.Y.2d 181, 264 N.Y.S.2d 243, 211 N.E.2d 644 (1965).
2000 OK CR 8, 2 P.3d 356.Id. at ยถ 37, 2 P.3d at 372 (citing Hatch and quoting Willis v. State, 1982 OK CR 134, ยถ 4, 650 P.2d 873, 874); see also Young v. State, 74 Okla. Crim. 64, 123 P.2d 294 (1942) (failure to follow statutory mandamus procedure for disqualifying judge waives issue for appellate review). Hence we will not address the merits of Mitchell's recusal/disqualification claim.
This allegation of error is without foundation. Young v. State, 74 Okla. Cr. 64, 123 P.2d 294 (1942). In their briefs in support of their cross-appeal, defendants allege the trial court erred in refusing to award them attorney fees or that it erred in not granting an evidentiary hearing to determine if Shadid brought his action in bad faith.
"Any party to any cause pending in a court of record may in term time or in vacation 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 said judge so to 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, application may be made to the proper tribunal for mandamus requiring him so to do." This same question is discussed at great length in a very able opinion by Judge Barefoot in the case of Young v. State, 74 Okla. Cr. 64, 123 P.2d 294, 295, where the court said: "Under the above statute a written application should be filed setting forth the grounds or facts upon which the claim is made that the judge is disqualified. A reasonable notice should be given to the other side of the hearing, and should the trial judge refuse to certify his disqualification within three days before said cause is set for trial, application may be made to this court in criminal cases for mandamus requiring him so to do."
It is urged that Judge Elmer Adams' "refusal to transfer the case to another division of the district court for trial, on motion by McAllister, amounted to an abuse of discretion and denied McAllister the fair and impartial trial guaranteed him by the Constitution." In the beginning, defendant recognizes the statutory provision, Tit. 22 O.S. 1951 ยง 575[ 22-575], which provides that a defendant, where a judge fails upon application of a defendant to disqualify and does not do so within three days before said cause is set for trial, may make application to this court for mandamus requiring him so to do. Recognized also is the rule and holding of this court in such cases as Young v. State, 74 Okla. Cr. 64, 123 P.2d 294, 295, where we have said: "Where one had knowledge of the grounds of disqualification for more than three days prior to the day set for trial, and did not avail himself of the procedure prescribed by the above statute, he cannot urge the disqualification on appeal."
We conclude further that the application should have been filed in sufficient time prior to trial to have made possible a hearing in this court, or that the hearing had in the trial court should have been transcribed and reflected in the case-made. See Tit. 22 O.S. 1951 ยง 575[ 22-575]; Starrett v. Freeman, 32 Okla. Cr. 366, 241 P. 207; Young v. State, 74 Okla. Cr. 64, 123 P.2d 294. As heretofore stated, the within case had been set on the court docket to be tried on February 25, 1952, and in addition to filing application for change of judge, on February 23, 1952, an application for change of venue was also filed some time on the same day, the hour not being shown.
Our examination of it discloses to us that it is not made on information and belief, but is positive in its terms. It fully meets the test of an affidavit as has been set forth by this court in numerous cases. Wagner v. State, 72 Okla. Cr. 393, 117 P.2d 162; McCarthy v. State, 86 Okla. Cr. 51, 189 P.2d 436; Young v. State, 74 Okla. Cr. 64, 123 P.2d 294; Shiever v. State, 94 Okla. Cr. 37, 230 P.2d 282. The record does not support the contention that the premises described in the warrant covered the dwelling houses of two or more families.
"Counsel for defendant then attempted to go behind the affidavit for the search warrant and show that the officer did not have sufficient knowledge of the charges alleged in the affidavit. We have repeatedly held that this can not be done. Phillips v. State, 34 Okla. Cr. 52, 244 P. 451; Harris v. State, 56 Okla. Cr. 105, 34 P.2d 289; Young v. State, 74 Okla. Cr. 64, 123 P.2d 294; Hudgens v. State, 74 Okla. Cr. 56, 122 P.2d 815; Luther v. State, 80 Okla. Cr. 252, 158 P.2d 481; Medley v. State, 81 Okla. Cr. 242, 162 P.2d 881; Linde v. State, 83 Okla. Cr. 268, 175 P.2d 370; Workman v. State, 83 Okla. Cr. 245, 175 P.2d 318. The affidavit in the instant case contained positive statements of facts as to the illegal possession of intoxicating liquor."
" See, also, McCarthy v. State, 86 Okla. Cr. 51, 189 P.2d 436; Hughes v. State, 85 Okla. Cr. 37, 185 P.2d 236; and Young v. State, 74 Okla. Cr. 64, 123 P.2d 294. While the affidavit is far from being a model, and could have been improved by detailing of additional facts, we deem the purported facts set forth and sworn to to be not on information and belief, but upon positive and definite allegations sufficient to comply with the statutory provisions.