Dawson v. Lanham, 5191
| Decision Date | 13 August 1971 |
| Docket Number | No. 5191,5191 |
| Citation | 53 Haw. 148,488 P.2d 329 |
| Parties | , 53 Haw. 76 Benjamin Kaaa DAWSON, Jr., and Walter Louis Joao, Petitioners, v. The Honorable John C. LANHAM, as Judge of the First Circuit Court of the State of Hawaii, and Captain Dorr Barrett, as Superintendent of Halawa Jail, Respondents. |
| Court | Hawaii Supreme Court |
Syllabus by the Court
1. HRS § 641-12(1) gives the State the right to appeal to the supreme court from a circuit court order or judgment quashing an indictment or information in a criminal case.
2. When an indictment has been quashed by the circuit court and a notice of appeal has been filed by the State, the circuit court loses jurisdiction and has no power to amend its order quashing the indictment.
3. When the State appeals from the quashing of an indictment the defendant is still subject to the original requirements of bail, notwithstanding the trial court's order of discharge.
David C. Schutter, Honolulu, for petitioner Dawson.
Hyman M. Greenstein, Honolulu, for petitioner Joao.
Leland H. Spencer, Deputy Pros. Atty., Honolulu, for respondent Barrett.
E. John McConnell, Jr., Deputy Atty. Gen., Honolulu, for respondent Judge Lanham.
Before RICHARDSON, C. J., ABE, LEVINSON and KOBAYASHI, JJ., and LUM, Circuit Judge, in place of MARUMOTO, J., absent from State.
Petitioners filed a petition for writ of habeas corpus. The respondents were ordered to show cause why a writ of habeas corpus should not issue releasing petitioners from incarceration. The following facts are pertinent:
Petitioners were indicted on January 27, 1971, on the charge of murder in the first degree. On March 23, 1971, bail was set by Judge John C. Lanham, judge of the circuit court of the first circuit, at $25,000.00 for each petitioner. Petitioners have been unable to meet bail.
On June 18, 1971, after a hearing in the circuit court, Judge Lanham issued an order quashing the indictment against petitioners and directing that petitioners be released forthwith without prejudice to the State's right to seek reindictment before another and separate grand jury. The indictment was quashed for a statement made to the grand jury by Michael A. Weight, deputy prosecuting attorney, who said: '* * * as Mr. Chung has charged * * * Cole Kekahuna has been in jail for three and one-half months, and as Mr. Chung says, he has decided to make a clean breast.'
On June 25, 1971, the State filed notice of appeal from the order quashing the indictment.
On June 29, 1971, a hearing was held before the Honorable John C. Lanham, at which time he rejected petitioners' contentions that they should be released forthwith and their bail exonerated in accordance with the judge's order of June 18, 1971, quashing the indictment against the petitioners. Instead, Judge Lanham issued the following order:
'* * * It is hereby ordered that execution of the Order of this Court dated June 18, 1971, quashing the indictment * * * is hereby stayed pending the disposition of the appeal on said order.
'It is hereby further ordered that bail * * * be continued in the amount of $25,000.00 for each defendant, pending the disposition of the said appeal; and it is further hereby ordered that the State shall expedite said appeal without undue delay * * *.'
On July 7, 1971, the duplicate notice of appeal was forwarded by the clerk of the circuit court to the clerk of the supreme Court.
The record fails to show any notification of the filing of the notice of appeal by the State to the adverse parties.
The question before the court is whether the order issued by Judge Lanham which purported to stay the execution of the quashing of the indictment and to continue the requirement of bail of the petitioners is a valid one. The answer depends on whether the trial court retained jurisdiction to amend its initial order quashing the indictment notwithstanding the filing of the notice of appeal by the State. There is a further question relating to the discharge of petitioners if the amended order is invalid.
In regard to appeal in criminal cases H.R.Cr.P. Rule 37 provides as follows:
'(a) Bills of Exceptions and Writs of Error Abolished. Bills of exceptions and writs of error, as they have heretofore existed in cases now governed by these rules, are abolished and wherever by law the judgment, sentence or other order of a circuit court may be reviewed by the supreme court on appeal, bills of exceptions or writs of error, the sole method of review shall be pursuant to an appeal perfected in the manner provided by this rule.
'(b) Notice of Appeal. An appeal permitted by law from the circuit court to the supreme court is taken by filing with the clerk of the circuit court a notice of appeal in duplicate. The notice of appeal shall set forth the title of the case, the party or parties taking the appeal and shall designate the judgment, order, or part thereof, appealed from. The notice shall be signed by appellant or appellant's attorney or by the clerk if the notice is prepared by the clerk, as provided in subdivision (d) of this rule. The notice of appeal shall be liberally construed in favor of sufficiency. The duplicate notice of appeal shall be forwarded immediately by the clerk of the circuit court to the clerk of the supreme court. Notification of the filing of the notice of appeal shall be given by appellant by serving the same on adverse parties in the manner provided for the service of papers under these rules, but appellant's failure so to do does not affect the validity of the appeal.
'(c) * * *
'(d) * * *
To resolve the question of the right of the State to appeal in criminal cases we rely on HRS § 641-12 which provides the following:
' § 641-12. By State in criminal cases. A writ of error 1 may be taken by and on behalf of the State from the district or circuit courts direct to the supreme court in all criminal cases, in the following instances:
'(1) From an order or judgment quashing * * * any indictment or information or any count thereof; * * *.'
The State contends that H.R.Cr.P. Rule 38(a) (2) is applicable. The rule provides:
'(a) Stay of Execution.
'(1) RESERVED.
We are of opinion that the above rule has a limited application to suspend the operation of any imposition of criminal sentence or order of probation upon appeal taken by defendants in criminal cases. The history of the rule shows reliance on § 212-6, R.L.H.1955, which is now HRS § 641-16. 2
The substance of petitioners' argument is that the trial court lost jurisdiction over the matter when the notice of appeal was filed and that it had no power to amend the order quashing the indictment and discharging the petitioners.
It is well established in this jurisdiction that generally, when a case in a civil proceeding is appealed to the supreme court, the circuit court loses jurisdiction except as to issuance of certain orders in aid of, and that do not interfere with, the jurisdiction of the supreme court. Kealoha v. Tanaka, 42 How. 630 at 635 (1958); explained Kealoha v. Tanaka, 44 Haw. 57, 351 P.2d 1096 (1960); Tropic Builders, Ltd, v. Naval Ammunition Depot, 48 Haw. 306 at 327, 402 P.2d 440 at 452 (1965). We think that the same rule of law should apply to appeals in criminal cases.
In the instant case under H.R.Cr.P. Rule 37 the key and necessary jurisdictional action by the State was to file the notice of appeal which the State did in timely fashion. The filing of duplicate notice with the clerk of the supreme court and the giving of notice of appeal to the petitioners have no relevancy in retaining for the trial court its jurisdiction of the case. Thus, we are of the opinion that the trial court had no jurisdiction and thus no power to effectuate its amended order.
We are now faced with the trial court's original order quashing the indictment and discharging the petitioners subject to appeal by the State. We are faced with the additional question of whether petitioners must be discharged because the indictment is quashed. If petitioners are discharged the right of the State to appeal to test the validity of the quashed indictment is meaningless and the appellate court would be faced with only a 'naked question of law'. Courts of other jurisdictions differ in the course of action to be taken.
In State v. Hollis, 273 P.2d 459 (Okl.Cr.1954), the court at page 463 stated as follows:
However, in State ex rel. Anderson v. Callahan, 119 Wash. 535, 206 P. 13 (1922), the court at...
To continue reading
Request your trial
-
In re Attorney's Fees of Mohr
...the legislature and compliance with the method and procedure prescribed by it is obligatory'"); see also Dawson v. Lanham, 53 Haw. 76, 84, 488 P.2d 329, 334 (1971) (Abe, J. dissenting) (noting that "it is a well-settled rule that the legislature may define and limit the right of appeal beca......
-
State v. Halemanu
...defendant being held in custody or on bail as may be set by the trial court pending reindictment. See Rule 12(g), HRPP; Dawson v. Lanham, 53 Haw. 76, 488 P.2d 329 (1971). For the foregoing reasons, I would reverse and 1 The rule in HRS section 701-109(5) (1976) concerning instructions on le......
-
Deangelo v. Souza
...that the trial court should have used this rule to hold the defendants in custody after the court dismissed their indictment. 53 Haw. 76, 83, 488 P.2d 329 (1971). In his dissent, Justice Abe pointed out that Rule 12(g) is valid only to the extent that it does not abridge substantive rights,......
- State v. Niskromoni, 5017