25 Haw. 55 | Haw. | 1919
OPINION OF THE COURT BY
In each of the aboA^e cases an indictment Avas returned by the grand jury of the first judicial circuit against the defendant Anderson and to each of said indictments Anderson by bis attorneys, Messrs. Thompson & Cathcart, appeared and interposed a motion to quash. These motions were based upon identical grounds, to Avit: (1)
“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 of the Territory in all criminal cases, in the following instances, to wit:
“From a decision or judgment quashing, setting aside, or sustaining a demurrer to, any indictment or any count thereof, or any criminal charge, where such decision or judgment is based upon the invalidity or construction of the statute upon which the indictment or charge is founded.
“From a decision arresting a judgment of conviction for insufficiency of the indictment or charge, where such decision is based upon the invalidity or construction of the statute upon which the indictment or charge is founded.
“From a decision or judgment sustaining a special plea in bar, when the defendant has not been put in jeopardy.”
As the decisions of the circuit court clearly do not fall within the scope of paragraphs 2 and 3 of the section above quoted the Territory must sustain its right to the writs of error, if at all, under the fourth paragraph, and to determine whether that ground is tenable it remains only to ascertain Avhether the motions to quash the indictments which were sustained by the circuit court can he deemed to he special pleas in bar.
There is a recognized distinction between a motion to quash an indictment and a special plea in bar. The former is addressed to the discretion of the court and is usually based upon matters of record though it would appear that the court may in proper circumstances aid the exercise of its discretion by looking into what is brought to its attention outside the indictment and even
In the present cases the attack upon the indictments -was based upon the proceedings -which took place in the court Avherein the indictments Avere returned and presented matters Avhich could not properly have been incorporated in a special plea in bar. For this reason the Territory -was not entitled to the Avrits issued out of this court and the motions to quash the same are hereby granted and the Avrits are dismissed.