14 Haw. 108 | Haw. | 1902
OPINION OF THE COURT BY
This is a petition (under Laws of-1892, Ch. 57, Sec. 74, Civ. L. Sec. 1438, as amended by Laws of 1898, Act 40, Sec. 2) for this court toi allow exceptions which the Circuit Judge is alleged! to have refused to allow or sign.
The defendant was indicted for rape. He pleaded a former conviction. The prosecution replied. The defendant demurred' to the replication. The trial judge overruled the demurrer and plea and sustained the replication and held that the defendant must stand ready for trial. The defendant excepted and the exception was allowed. He presented a bill of exceptions within the term, paid costs accrued and made a deposit for costs to- accrue, but the judge declined to- allow or sign the bill of except tions on the sole ground that there had been no final disposition of the indictment. This is the bill of exceptions that the defendant now wishes this court to- allow. The facts are established in this court by affidavit. The prosecution stated in the Circuit Court and states here that it has no objection to> the allowance of the bill.
The rule that only final decisions are appealable in the absence! of statutory provision to the contrary, applies to criminal as well as to civil cases. A decision that a plea, of former conviction is bad and that the defendant must plead over is interlocutory and!
If the judge had signed and allowed an exception which had been reduced to writing in a summary mode and presented to him vsdthin the time prescribed by the statute, no formal bill of exceptions would be necessary, for the exception could, upon payment of costs and a deposit or bond for costs to accrue, be 'presented directly to this court after the final disposition of the case (Kahului R. R. Co. v. Haw. Com. & Sug. Co., 11 Haw. 749) although the better as well as the usual practice is to bring the ease here on a formal bill of exceptions. '
But to enable the defendant to rely on the exception at all, that is, even after the final disposition of the case, it was neces
The petition is granted and the exception allowed.