Territory v. Balarosa , 34 Haw. 662 ( 1938 )

  To a criminal charge pending against him before a district
magistrate for a misdemeanor the defendant in error pleaded
guilty and was sentenced accordingly. Thereafter

on the same day he moved the magistrate "that the above entitled
matter be reopened" and the judgment and sentence be vacated and
set aside upon the ground "that the same is contrary to law." In
his affidavit filed in support of his motion he averred "that he
was allowed to plead guilty without fully understanding the
nature and cause of the accusation * * * that he had not been
given the opportunity to consult with his witnesses before the
hearing, much less the right to have the assistance of counsel
for his defense." This motion was in effect a motion to withdraw
the plea of guilty theretofore entered and to substitute therefor
one of not guilty. We so consider it. The magistrate denied the
motion and from the order of denial the defendant in error
appealed to the circuit court on points of law one of which was
abuse of discretion. The circuit court held that the magistrate
in refusing to permit the defendant in error to withdraw his plea
of guilty had been guilty of an abuse of discretion, reversed the
order of the magistrate and remanded the cause accordingly. From
the order of the circuit court the Territory prosecuted a writ of
error.
  The defendant in error now moves that the writ of error be
dismissed upon the ground "that the ruling by the Circuit Court *
* * in holding that the District Magistrate * * * had abused its
discretion in denying Defendant's (Defendant-in-Error) motion to
reopen, does not constitute a ruling on a question of law adverse
to the Territory upon which this Writ of Error is sought and
predicated but that such ruling made by the said Judge of the
Circuit Court * * * is solely on a question of fact."
  The law under which the writ of error was prosecuted by the
Territory in the instant case is to be found in section 3551,
R.L. 1935, the full text of which is quoted in

the margin.1 The ground of appellee's motion involves the
construction of that portion of the statute which permits a writ
of error to be taken by and on behalf of the Territory "from a
ruling on a question of law adverse to the Territory where the
defendant was convicted and appeals from the judgment." We deem
it unnecessary however to pass upon the question whether the
ruling of the circuit court is "a ruling on a question of law"
within the meaning of the statute. Assuming arguendo that an
appeal may be taken to the circuit court upon points of law to
review the discretion of a district magistrate the position of
the appellee in this court upon his motion to dismiss is, to say
the least, a trifle inconsistent. But a more serious obstacle
exists to the invocation by the Territory of the jurisdiction of
this court upon writ of error. The writ in the present case seeks
to review an order purely interlocutory. Much may occur before
the final determination of the cause by a conviction or acquittal
of the defendant in error. Upon remand the magistrate no doubt
will grant the motion and in the event of a trial the defendant
may be acquitted. If, on the other hand, he is convicted he may
still avail himself of his right to appeal to the circuit court
and have a trial de novo. In the circuit court he may be

acquitted. In the event of conviction in that court he may still
avail himself of the ordinary methods of appeal to this court.
  The statute clearly contemplates that a writ of error may be
taken by and on behalf of the Territory only after final
disposition of the cause in the court to which the writ lies. All
the orders enumerated in the statute, including sentence, from
which a writ of error may be prosecuted are final in their nature
with the possible exception of rulings on questions of law
adverse to the Territory and in the latter instance the writ will
lie only where the defendant was convicted and appeals from the
judgment. When the writ of error was taken by the Territory in
the instant case there was no appeal pending in this court by the
defendant in error from the judgment of conviction entered
against him. Under the statute it is only where the defendant
"appeals" from the judgment and obviously that appeal must be to
this court before the Territory may take a writ of error direct
to this court from a ruling on a question of law adverse to it.
If it were otherwise and the Territory could prosecute a writ of
error direct to this court from the district court, despite an
appeal by the defendant from the district court to the circuit
court, the anomalous situation would be presented of this court
at the instance of the Territory reviewing a question of law
which was then pending before the circuit court upon the general
or special appeal of the defendant to that court. The statute
does not permit the Territory to prosecute error except directly
to this court. And before the Territory may prosecute error
directly to this court from a ruling on a question of law adverse
to it there must be pending in this court an appeal by the
defendant from the judgment of conviction against him.
  Statutes granting the State the right of appeal in criminal

cases must be strictly construed. They are not to be enlarged by
construction and cannot be extended beyond their plain terms. The
legislature certainly did not contemplate that interlocutory
orders of inferior courts should be reviewed by this court,
except where the defendant in a criminal case appeals to this
court from a judgment of conviction. Otherwise a salutory right
of appeal accorded the Territory might become a serious menace to
the prompt disposition of criminal cases pending before inferior
courts of original criminal jurisdiction.
  We therefore conclude that a writ of error may not be taken by
and on behalf of the Territory from the district or circuit
courts direct to this court in a criminal case to review an
interlocutory order except where the writ is taken from "a ruling
on a question of law adverse to the Territory" and then only
where the defendant "was convicted and appeals from the judgment"
to this court.
  The motion to dismiss is granted and the cause remanded for
further proceedings consistent with the order of the circuit
court from which the within writ was prosecuted.
1 "Sec. 3551. By Territory in criminal cases. A writ of error
may be taken by and on behalf of the Territory from the district
or circuit courts direct to the supreme court in all criminal
cases, in the following instances, to-wit:
  "From an order or judgment quashing, setting aside or
sustaining a demurrer to, any indictment or information or any
count thereof;
  "From an order or judgment, sustaining a special plea in bar,
where the defendant has not been put in jeopardy;
  "From an order granting a new trial;
  "From an order arresting judgment;
  "From a ruling on a question of law adverse to the Territory
where the defendant was convicted and appeals from the judgment;
  "From the sentence, on the ground that it is illegal;
provided that no writ of error shall be taken by or allowed the
Territory in any case where there has been a verdict in favor of
the defendant."