Findley

—The defendant was convicted of embezzling eight thousand dollars, public money in his hands as tax-collector of San Luis Obispo County, and sentenced to eight years in the state prison. He appeals from the judgment of conviction. We will consider the points urged for reversal in the order in which they appear in appellant’s brief.

1. When this case was called for trial, defendant’s attorney, pursuant to the provisions of section 170 of the Code of Civil Procedure, moved the court to secure the services of some judge, other than the regular judge of the court, to preside at the trial and in the subsequent proceedings. The affidavit of the defendant was filed and read in support of this motion. The affidavit of the district attorney in rebuttal was also filed and read on the motion. The court denied the motion.

In his affidavit, defendant alleges five acts of the judge of the trial court as tending to show his prejudice against defendant. These acts are as follows: 1. The said judge, in December, 1897, advocated the candidacy of his brother-in-law for tax-collector, as against defendant’s candidacy for the same office, before the board of supervisors, and defendant received the…