¶1(concurring specially)-
¶2I agree that the writ should be denied.
¶3The petition to have Judge Emmet recuse himself was filed before the Court of Criminal Appeals. That court found that the totality and cumulative facts before it “created a situation of bias that could only result in prejudice to the petitioner.” The Court of Criminal Appeals, therefore, made a specific finding that Judge Emmet was biased.
¶4As Mr. Justice Merrill points out in his special concurrence, it is axiomatic that this Court will not, on certiorari, review the determination of the Court of Criminal Appeals, on a question of fact. 4 Ala.Dig., Certiorari However, I think that the Court of Criminal Appeals has reached a result in Judge Emmet’s case which is contrary to the one reached by its predecessor in Ex parte Thompson, 23 Ala.App. 46, 121 So. 429 (1929); cert. den. 219 Ala. 139, 121 So. 432 (1929). In denying certiorari in Thompson, this Court said that it agreed with the conclusion reached by the Court of Appeals in that case.
¶5When the facts of the petition in this case are put alongside the petition in the Thompson case, it is difficult for me to see how the Court of Appeals could find that Judge J. Russell McElroy was qualified to sit in the Thompson case, and Judge Em-met is disqualified to sit in this case. In Thompson, the petitioners claimed that Judge McElroy was formerly an assistant attorney for the City of Birmingham and that he was a prosecution oriented judge. Specifically, the petitioners there claimed that immediately upon assuming his duty as judge, Judge McElroy, without notice to defendants, dismissed several hundred appealed cases; that Judge McElroy instructed the court clerk to let no other judge try the cases but himself; that he set aside an *780order of another circuit judge in certain of the appeal cases; that he assumed absolute jurisdiction over such cases, forbidding other judges to act therein, and that he did other acts prejudicial to the rights of the petitioners.
¶6In addition, it was further averred that Judge McElroy made public statements to the effect: “ ‘That there were too many forfeitures in the appealed cases; . that they should be^ stopped by dealing severely with those who forfeited at the time that they were set for final action, and that no defendant permitting a forfeiture on his bond should have a trial; . . The petitioners also claimed that Judge McElroy gave public interviews to the effect that the petitioners had opposed his election as circuit judge, and that petitioners were making a determined effort to embarrass the administration of justice.
¶7The Court of Appeals, in Judge McElroy’s case, found:
“. . . We have examined critically the petition, and conclude that it nowhere sets up any of the grounds of disqualification of the said J. Russell McElroy, judge, etc., to sit as judge in the cases described in said petition, prescribed by the statute ... or those imposed by the common law.” 23 Ala. App. at 50, 121 So. at 431-432. [Emphasis added.]
¶8I believe that everyone would agree that the present Court of Criminal Appeals has applied a more stringent standard to Judge Emmet than its predecessor court did in Judge McElroy’s case. But, I must admit that in its fact-finding role, the Court of Criminal Appeals had the prerogative to draw inferences from the evidence. I also agree with what Mr. Justice Merrill has said that there was evidence from which a finding of disqualification could be made in Judge Emmet’s case. Consequently, under the rule that we accept the findings of fact made by that court, I concur in the judgment that the writ should be denied.
¶9As Mrs. Justice Merrill has pointed out also, the record shows that there has been a constant disputation between the Circuit Court and the Court of Criminal Appeals in this matter. It all began when Judge Emmet sent a letter to the members of the Court of Criminal Appeals requesting that they not reduce the amount of the bonds in three cases, one of which involved Howard White. On December 18, 1973, each member of the Court of Criminal Appeals signed a letter of transmittal of the Emmet letter to the Chairman of the Judicial Commission. Charges were filed on March 5, 1974, against Judge Emmet charging him with “misconduct in office” for sending the letter requesting that the bonds not be reduced. Judge Emmet was tried before the Court of the Judiciary on the charges and that court found that Judge Emmet was guilty of “misconduct in office.” Judge Emmet appealed to this Court and this Court reversed the finding of misconduct made by the Court of the Judiciary. In re Emmet, 1974, 292 Ala. 143, 300 So.2d 435.
¶10In another instance, Judge Emmet was ordered to reduce bail for Ruby Latham or show cause why he should not be held in contempt. From the statements appearing in the opinion of the Court of Criminal Appeals, it appears that Judge Emmet personally appeared before the Court of Criminal Appeals on the show cause order. He was not held in contempt. I relate the above for the purpose of showing that there have been disputations between Judge Emmet and the Court of Criminal Appeals since December, 1973, involving these criminal cases. A proper administration of justice would seem to require that this conflict end.
¶11Since there are circumstances presented from which the Court of Criminal Appeals could find that Judge Emmet could not conduct White’s trial in an impartial manner, I concur in denying the writ of certiorari.