Before this cause was called for trial below plaintiff in error made and filed an affidavit in due form stating that the presiding judge was prejudiced against him, and that by reason thereof a fair and impartial trial could not be had before said judge; and he prayed a change of judge. The application was overruled, and an exception was taken. The trial was had before the passage of the Act approved March 22, 1909, relating to the disqualification of judges (art. 6, chap. 26 of Snyder's Comp. Laws of Okla.), and under the uniform holding of this court construing the law as it existed prior to the passage of said act, the court committed reversible error in refusing a change of judge.
The sale in this case, according to the state's evidence, was *Page 730 made to a deputy sheriff, who purchased the whisky as evidence upon which to base a prosecution. Plaintiff in error contends that in such case, the sale being solicited by an officer and agent of the state, a prosecution therefor cannot be maintained. This is not true. De Graff v. State, 2 Okla. Crim. 519,103 P. 538.
For the error indicated the cause is reversed and remanded with directions to set aside the judgment and grant plaintiff in error a new trial.
FURMAN, PRESIDING JUDGE, and DOYLE, JUDGE, concur.