CONCURRING OPINION OF
WIRTZ, J.In joining in the opinion of the Court, I wish, however, to stress that the state as well as the defendant has rights in the manner a criminal case is tried. In government under law the state, in order to survive, must have, *266within the framework of its organic law, an effective means of enforcing the rules of conduct laid down for the members of its society for the protection of the community as a whole.
In reviewing the denial of the motion to disqualify, the sole question presented is whether the record supports the grounds of disqualification asserted in the motion, as shown by the affidavit, and the sufficiency of those grounds, in predicating “personal bias and prejudice” to. the trial judge.
While mere errors of law in rulings made during the proceedings do not spell out “personal bias and prejudice” (Peterson v. McKinley, 45 Haw. 44, 361 P.2d 60), still the manner in which they were made and the surrounding circumstances can indicate such bias and prejudice. State ex rel. McAllister v. Slate, 278 Mo. 570, 214 S.W. 85. Here, the pretrial proceedings (not contemplated by rule or statute) which equated discovery in criminal proceedings with that in civil matters without the requirement of motion and in disregard of Rules 16 and 17, H.R.Cr.P. (providing for discovery in criminal cases) pointed to an utter disregard of criminal procedure in this jurisdiction, as ordained by statute and rule. The cooperative acquiescence of the prosecution, under protest of the lack of the trial judge’s authority to so proceed, compounded the undue consideration of the individual rights of the defendants in derogation to the collective rights of the community. This led to a final series of events which rendered the atmosphere intolerable for a fair trial, to which the public, as well as the defendants, were entitled. State ex rel. McAllister v. Slate, supra; State ex rel. Douglas v. Superior Court, 121 Wash. 611, 209 Pac. 1097; State v. Brown, 8 Okla. Cr. 40, 126 Pac. 405; State ex rel. Mickle v. Rowe, 100 Fla. 1382, 131 So. 331. These were the issuance of a memorandum by the judge which in *267effect invited motions for separate trials and to which there was no response.1 Thereupon, on the date set for trial and without affording the prosecution a requested hearing, the judge sua sponte2 ordered that defendants Lono, Tai and Requilman be tried separately and, without any consideration of the prosecution’s rights , in the matter, in advance of the trial of the defendant Kealoha. The motion to disqualify, presented after the intent to grant a severance became evident but before the order, had been summarily denied eo instante. Although informed that a writ of prohibition to this court was being prepared for immediate presentation, the trial judge, nonetheless, proceeded with the selection of a jury for the trial of defendants Lono, Tai and Requilman. Prom this, the conclusion seems inescapable that the trial judge had, although not consciously, manifested a bias and prejudice toward the state and in favor of the defendants so as to render a fair trial impossible insofar as the community was concerned.
It is regrettable that this matter has reached this stage as the atmosphere created, even if considered without regard to fault on the part of the judge or the prosecutor, amplified as it was by the attendant publicity, was such that it was “advisable for a judge not technically disqualified to withdraw sua sponte ” Re H. Bouslog, 41 Haw. 270, 283. Under the present circumstances, although the judge may conscientiously feel that he is not disqualified, I feel that this particular record discloses sufficient, apart from mere rulings of law, to indicate the requisite bias and prejudice on the part of the trial judge.
*268Overzealousness in safeguarding the rights of individuals charged with crime, albeit be they constitutional rights, can effectively frustrate the state in its rightful effort to exact just punishment from the transgressors of its laws to the prejudice and detriment of society. As so aptly stated by Justice Brandeis in New State Ice Co. v. Liebmann, 285 U.S. 262, 311: “* * * we must be ever on our guard, lest we erect our prejudices into legal principles.”
I join in making the writ permanent.
There had been filed in February of 1964 a motion for severance on behalf of defendant Requilman which had been denied in September of 1964.
This cannot be considered as a reconsideration of the previously denied Requilman motion as that requested a separate trial apart from any of the other defendants.