§805-7 Commitment; form of mittimus. In all cases of arrest for offenses that must be tried in the first instance before a jury, or that can be tried only on indictment by a grand jury, the judge in whose jurisdiction or on whose warrant the accused was arrested, upon the appearance of the accused, shall proceed to consider whether there is probable cause to believe that the accused is guilty of the offense with which the accused is charged. The judge shall reduce to writing the substance of the evidence adduced, with the names of the witnesses. If in the judge's opinion the testimony does not warrant commitment for trial, the judge shall release the prisoner, noting that fact upon the judge's docket. But if in the judge's opinion there is probable cause to believe that the accused is guilty of the offense with which the accused is charged, the judge shall make out and deliver to a police officer a mittimus which may be in the form established by the usage and practice of the issuing court. [L 1892, c 57, §22; am L 1903, c 32, §5; am L 1921, c 159, §2; RL 1925, §4011; RL 1935, §5474; RL 1945, §10774; RL 1955, §257-7; am L 1959, c 107, §1; HRS §710-7; am L 1970, c 188, §37; ren L 1972, c 9, pt of §1; gen ch 1993; am L 1998, c 36, §4]

Cross References

See Const. art. I, §10.

Rules of Court

Proceedings following arrest, see HRPP rule 5.

Case Notes

Mittimus is a process and not part of record. 6 H. 343 (1882).

Legal requirements of a mittimus. 7 H. 95 (1887); 7 H. 162.

Proceeding in district court where party is charged with offense cognizable before a jury is not strictly a "trial". There is no appeal from decision in a preliminary hearing. 9 H. 178 (1893).

Decision of magistrate to commit accused for trial not subject to review. 10 H. 83 (1895); 45 H. 109, 363 P.2d 790 (1961).

Commitments should not designate date of term. 11 H. 293, 298 (1898), explained 46 H. 197, 210, 377 P.2d 609 (1962).

Sufficient if testimony be reduced to writing under supervision and direction of magistrate. 12 H. 189, 195 (1899).

Denial of preliminary hearing does not affect power of grand jury to find indictment. 45 H. 604, 372 P.2d 356 (1962).

Defendant has no right to have preliminary examination preserved inviolate and not to have it rendered nugatory by return of indictment. 53 H. 364, 493 P.2d 1342 (1972).

Right to preliminary hearing may be cut off by return of indictment; procedure not unconstitutional under the equal protection clause. 53 H. 395, 495 P.2d 26 (1972).

Admissibility of transcripts of witness' testimony at preliminary hearing. 54 H. 637, 513 P.2d 697 (1973).

Exclusion of unconstitutionally obtained evidence. 55 H. 314, 519 P.2d 228 (1974).

Preliminary hearing, justification for closure. 59 H. 224, 580 P.2d 49 (1978).

Cited: 17 H. 428 (1906).