(dissenting).
This is one of the clearest cases of violation of the due process clause of the Fifth Amendment that has come before this court. Only by ignoring the essential facts, namely, the briefs filed in the two appeals, can any other conclusion be reached.
The briefs succinctly state justiciable questions of claimed error of most serious import in full compliance with rules of the Hawaiian cowt. Because elsewhere in the briefs, in presenting some of the other claims of error, there is a failure to comply with the rule, the Hawaiian court dismissed the appeals, thus refusing to consider those clearly and succinctly presented in proper form.
Appellant admits the failure of technical compliance with the rules as to these other matters but the justiciable questions which are briefed with complete compliance with the court’s rules protrude in the case like the sore thumb of conventional speech. An appellant’s right to due process on appeal should not be denied for such a technical failure in presenting claimed errors clearly distinct from those properly presented. Hence I dissent from establishing in this circuit such a denial of due process in the following language of this court’s opinion:
“The appellant strives to spell out a deprivation of his constitutional rights because the Territorial court 'dismissed the writ on a mere technicality.’ We do not agree. The appellant does not argue, nor can he argue, that the rule itself is unconstitutional. As we have seen, he admits that he did not conform to a valid rule of the tribunal to which he was appealing. In our view, that ends the case.”
*852Such a holding is a clear violation of the principles established in Frank v. Mangum, 237 U.S. 309, 327, 35 S.Ct. 582, 59 L.Ed. 969, and Cochran v. Kansas, 316 U.S. 255, 258, 62 S.Ct. 1068, 86 L.Ed. 1453. What is there said respecting due process in state courts under the Fourteenth Amendment is of equal application to the due process under the Fifth Amendment in a Hawaiian court. Farrington v. Tokushige, 273 U.S. 284, 47 S.Ct. 406, 71 L.Ed. 646.
In brief, one of the errors so presented is that at the trial of the second case the appeal in the first was pending, yet the trial court permitted the introduction of evidence of appellant’s conviction in the first. The claim that this is error is clearly a justiciable question of Hawaiian criminal law. In the first case one of the claimed errors is the prosecutor’s attempt to implicate the accused in six other crimes of which appellant not only had not been convicted but for which no criminal proceedings had been initiated, clearly a justiciable question under the Hawaiian .law.
The character of these claimed errors so refused consideration makes the refusal a violation of the “immutable principles of justice which inhere in the very idea of free government,” of Holden v. Hardy, 169 U.S. 366, 389, 18 S.Ct. 383, 387, 42 L.Ed. 780, and of the “fundamental principles of liberty and justice which lie at the base of all our civil and political institutions,” of Hebert v. Louisiana, 272 U.S. 312, 316, 47 S.Ct. 103, 104, 71 L.Ed. 270, 48 A.L.R. 1102.
I. The strict compliance with the mies of the briefs presentation of -the claimed error in allowing the question of the conviction in a prior trial, where the case was on appeal.
The pertinent portions of the rules claimed to be violated are stated by appellee’s brief to be Rule 3, subd. 1 (d) “that an appellant’s brief ‘shall contain * * * a specification of the errors which are relied upon’ ” and Rule 3, paragraph 1 (e) “that an appellant’s -brief ‘shall contain * • * * a brief of the argument exhibiting a clear statement of the points of law or fact to be discussed and the authorities relied upon in support of each point.’ ”
Appellant’s brief first states his assignment of error accompanying his petition for writ of error as required by Title 23, Section 9558 of the Hawaiian Code. His brief later states the question as follows:
“Group V, Question No. V.
“Did the Court err, in ruling that a prior conviction of the defendant (after it had been properly appealed, staying the mittimus, judgment and sentence of the Court) is competent matter to impeach the credibility of the defendant upon his cross examination as a witness in his behalf?
“The above question No. 5 of Group V, is raised in this Appeal by the Assignments of Error No. XVIII and XXVIII as of record, and as hereinafter set forth and will be discussed collectively because both involve the same principle of law.”
Then follows his presentation by repeating in full his assignment of error which specifies as follows:
“Assignment of Error No. XVIII.
“The Circuit Court erred in permitting the prosecution to cross examine the defendant while a witness for himself, over objection of the defendant, of and concerning a prior conviction of larceny of cattle, from which prior conviction, the defendant had appealed to the Supreme Court of the Territory of Hawaii, and the sentence and judgment of said prior conviction had been stayed by the court because of said Appeal, upon the theory of impeaching the credibility of the defendant as a witness for himself; the defendant objected to said cross examination; that it was irrelevant, incompetent and immaterial and the defendant raised a federal question, that said cross examination was made for the sole purpose of prejudicing the defendant with the jury, insinuating to the jury that defendant was a habitual criminal, and therefore guilty of the crime in question; further, that said appeal with a stay of the Judgment and Sentence, was not a prior conviction according to the law; the court overruled the objection of the defendant, to which ruling the defendant duly excepted to, in the presence of the *853jury. Transcript pages 304-308, as follows: * * *»
That it is entitled as “assignment” makes its content nonetheless a specification. Then follows the transcript of the trial court’s proceeding in which, in the absence of the jury, the appeal is shown to be pending, the return of the jury, and then the following:
“Q. Were you not convicted in this court on the 31st day of August, 1943, of Larceny in the First Degree and that you stole three head of cattle from Frank Teixeira in the Puukapu Homesteads on this Island?
“Mr. Esposito [attorney for appellant] : Object, it is irrelevant, incompetent and immaterial; that this man has taken an appeal and that appeal stays mittimus and stays conviction.
“The Court: Objection overruled.
“Mr. Esposito: Exception.
“The Court: Yes. You will please answer the question. A. Yes.”
Then is set forth the following assignment of error regarding the court’s instruction that the jury could consider the pending appeal:
“Assignment of Error No. XXVIII.
“The Circuit Court erred, in giving Territory’s requested Instruction No. 10, over objection of defendant, to which ruling of the Court, in the presence of the jury, the defendant duly excepted, for the reason that said instruction was not the correct law.
“ ‘Evidence has been received to the effect that the defendant Carl Meyer, has heretofore been convicted of a crime. This evidence was received solely because it bears upon the moral character and upon the credibility of the defendant as a witness, and the fact of conviction is one that you may take into consideration in weighing his testimony. It must not be used for any other purpose whatever.’ ”
Then follow less than four pages of as competent briefing of the two claimed errors as I have seen in the half century since I was admitted to the bar. It concerns the two following Hawaiian statutes which it is claimed have never been considered in this connection by the Hawaiian supreme court:
“Section 3555, Stay in criminal cases. The giving of written notice or oral notice in open court by the defendant or his counsel within ten days after judgment of intention to sue out a writ of error shall operate as a stay of execution, and shall suspend the operation of sentence in all criminal cases; * * Rev.Laws 1945, § 9556.
“Section 5528. After previous conviction. When any person shall be proceeded against before any court of criminal jurisdiction for a subsequent offense in either case committed after any previous summary conviction or convictions, a copy of the conviction certified by the proper officer of the court to which the summary conviction shall have been returned or proved to be a true copy, shall be sufficient evidence to prove a conviction of the former offense and the conviction shall be presumed to have been unappealed against until the contrary be shown.” Rev.Laws 1945, § 10833.
Then follows the statement of cases from four states having similar statutes which have held such a question to be error warranting reversal.
In my opinion, to dismiss an appeal so cogently presenting such a justiciable question because of technical defects in briefing other claimed error, will shock the conscience of every experienced trial lawyer.
II. The briefs full compliance with the rules in presenting the claimed, error of the prosecutor’s questions to appellant of other offenses for which he was not indicted.
In' the other appeal this claimed error is briefed under the title
“Did the Court err, in its conduct of the trial and deprive the defendant of a fair and impartial trial as guaranteed to him by the law of the land, in permitting the prosecutor to cross-examine the defendant upon specific acts of misconduct of the defendant based upon hearsay evidence, and concerning which alleged offenses the defendant had not been convicted?”
*854Again is stated the assignment of error at the beginning of the brief and repeated under the above title, as follows:
“Assignment of Error No. VI.
“The Circuit Court erred, in denying and overruling the defendant’s motion for mistrial, which were severally, and often jointly made by the defendant, at the occurrences of the misconduct and the admission of the poisonous evidence, and later repeated at the conclusion of all the evidence of both parties and before the settling of the instructions by the court, and before counsel for both sides addressed the jury, that said Motions for Mistrial were properly made by the defendant in the presence of the jury; that full and complete reasons were assigned by the defendant to the Court for the said misconduct and the defendant duly excepted to the Court’s ruling in the presence of the jury.”
Then follow the portions of the record showing six questions by the prosecutor, to which appellant objected as incompetent and prejudicial and for which he moved a mistrial. They seek to implicate the accused with • five other similar crimes for which he had not been indicted, much less convicted, and with a claimed adultery. They áre
“Q. Sometime in' 1938 did you or did you not steal one Holstein Hereford calf of W. M. S. Lindsey, senior, take it to your slaughter house pasture, brand it, cut off its ear, and then when caught by Lindsey and his worker who was Yokoyama, did you not cry and promise never to do it again ?”
“Q. Did you not between February 1, 1941, and August 31, 1941 there in Kona steal one stag with horns, cut out near the ears one po-le and one steer with horns, red and white faced half wild from Manuel Gomes of Holualoa, take it to the Magoon lease and later slaughter it?”
“Did you or did you not between the first day of January or the 31st day of January, 1942 in the Puukapu Homesteads steal and slaughter a steer of James Spencer and immediately boil the hide and have it fed to the pigs?”
“Q. Did you or did you not between the first day of February, 1942 and the 28th day of February, 1942 steal there in the Puukapu Homesteads from Parker Ranch two fat breeding cows, slaughter them and boil their hides?”
“Q. Did you or did you not in the months of June or July, 1942 there in Puukapu Homesteads steal two Parker Ranch cows, one with a six or seven months old calf inside it and one with a two months old calf inside it, slaughter them and boil the inborn calves and hides?”
“Q. When were you married ? A. 1931, about.
“Q. During the years 1936 1937 did you not have an adultery relationship with one ...... [naming woman] ?
“Mr. Esposito; I object. There must be an arrest and conviction.
“Q. And as a result of that relationship was there not born a child......, [naming child] on August 1, 1937, at the Kau Hospital?
“Mr. Esposito; Objection. There is no conviction. It is incompetent, irrelevant and immaterial.
“The Court; I will allow the question.”
As seen, the brief’s assignment of error states appellant’s motion to the trial court for a mistrial on the ground of allowance of these questions. That these offensive and degrading questions were answered in the negative does not make the contention of appellant’s brief that the questions themselves were highly prejudicial any the less a justiciable one.
Then follows a citation of federal and state authorities cogently discussed in but seven pages of briefing.
In every respect these contentions of the two appeals were briefed in full compliance with the rules and were entitled to the judicial process of their consideration and decision.
It is trite to repeat that American courts are primarily concerned with justice to litigants. They should not be primarily concerned with the professional conduct of the lawyers, their officers. Discipline for lack of professional skill before the court in which they arc acting should be upon them not upon the litigants seeking their justice. The court should protect the liti*855gant where such lack of skill is apparent in matters yet to be decided.
Here the counsel for appellant, by his admission to practice in the Hawaiian supreme court, is held out to appellant as a person competent to prosecute his appeals. In each appellant has had competently presented for him at least one justiciable contention which, if sustained, well may require reversal.
No more is warranted in these criminal cases than the striking from the briefs of the matters urged in violation of the rules, with the right in the instant or another attorney properly to present them in another brief. To wreak upon the litigant in a criminal case the court’s irritation at its officer’s failure to observe its warnings of a dismissal if such a procedural rule is not satisfied is wrongfully imputing to the litigant a technical knowledge it knows he has not. In effect, this supreme court’s decision is a shocking repudiation of its representation to appellant of the competence of its officers.
The decisions in both appeals should be reversed.