DISSENTING OPINION OF
LEWIS, J.,WITH WHOM CASSIDY, J., JOINS.
I respectfully dissent from the court’s holding that the record herein shows a disqualifying bias or prejudice. As the record shows:
On February 20, defendant Requilman filed a motion for relief from prejudicial joinder, under H. R. Cr. P., Rule 14.
On February 28, the defendant Kealoha filed a motion for production and inspection of all statements in the possession of the State which were made by him. After argument on March 4 this motion was granted by order filed on March 6. According to the minutes of March 4 the Prosecutor had no objections to the granting of this motion.
On September 14. the court filed a decision denying defendant Requilman’s motion for severance.1 An order in accordance with this decision was filed a week later.
*269On September 16 an order was entered setting the case for trial, to commence on Monday, November 9, at 9:00 A.M.2
On October 29, apparently on volition and direction of the court, counsel for all parties appeared and the matter of proceeding with the trial was discussed. The hearing was continued until the afternoon, but prior to recessing the court ordered the prosecution to bring in, at the afternoon session, a list of witnesses and “all the statements and all of the unsigned written statements and/or transcriptions of stenographic notes of oral statements.” Previously, counsel for defendant Lono had said he was ready for trial provided “that we have further information we are entitled to: a copy of the list of all witnesses, a copy of written statements or unwritten statements or copies of so-called statements not signed * * *."
The prosecuting attorney indicated that the State wanted any production it was required to make to come under a subpoena duces tecum. The court, however, stated that was completely unnecessary and that the court could order, and at that time did order the production, stating that, “The Prosecuting Attorney is ordered to bring in at 1:30 anything which the defense counsel could obtain by subpoena and would be entitled to obtain by subpoena, so that the whole subpoena problem could be obviated.”
In the afternoon session, when one of the prosecuting attorneys expressed the desire or advisability that “before the pretrial conference actually begins, some ground rules should be laid and agreed on,” the court, in the ensuing colloquy, stated that “at a pretrial, anything that is discoverable or inspectable under Rule 16, upon motion is *270discoverable and inspectable and copyable, and so on, to the same extent at a pretrial, just by order at a pretrial, without any motion being filed.” The court further stated: “I don’t think that Rule 16 puts any limitation on the scope of pretrial proceedings.”
At one point, counsel for defendant Tai suggested that the Prosecutor state what portion of “discoverable items” he was “unwilling to produce.” The reply made by a deputy prosecutor was: “There is no such thing as unwillingness.” Thereafter, one of the prosecutors addressed the court as follows:
“Your Honor, the thought has just occurred to me, if we are not proceeding under Rule 16 and not under Rule 17(h), it just occurred to me by what ruling, statute or order is this pretrial conference being held? It seems to me, Your Honor, that this is actually turning out to be a discovery proceeding by the defense attorneys.”
The court replied:
“That’s part of the purpose of pretrial, not only in civil cases but in criminal cases.”
Shortly thereafter when the prosecution again pressed “to know the ground rules if we’re not following Rule 16,” the court replied: “I don’t think it is possible to anticipate everything that is going to come up in pretrial and it is going to be necessary to make ground rules as we come along. But it does seem that in pretrial anything can be ordered in pretrial without any motion being filed.” One of the prosecutors then stated:
“I’m not saying that I want a motion. We are bypassing the motion in Rule 16 wherein the order shall specify the time, place and manner of inspection and such terms and conditions as are just. That is what we are trying to follow.”
The court replied:
*271“I suggest, rather than getting into a theoretical discussion, we just go ahead and meet the problems as they come. We have covered the matter of witnesses very well, apparently. And the next thing to do would be to go on to the matter of statements. That may be taken care of also.”3
Over objection, the court ordered that the prosecution furnish any statement made by any defendant to the other three defendants. The court’s ruling was based on “the fact that these four defendants are in the trial together * * * the statements should be available to all counsel for the orderly conduct of the trial.” This was the position which had been taken by counsel for the three defendants other than Kealoha.4
Subsequently the court, at the request of one of the defense counsel, took up the matter of physical evidence. The prosecution referred to the provisions of H. R. Cr. P., Rule 16. The court expressed the view that :
“I think in a way it does include everything because it says, ‘. . . obtained from or belonging to the defendant or obtained from others by seizure or by process . . .’ And I should think that if they were obtained from others by seizure or by process, anything obtained from anybody, even voluntarily, would be covered because it wouldn’t really matter whether it was obtained by seizure or by process or by just going up and saying, ‘please let us have it.’ I mean I can’t see any magic in seizure or process.”
*272A further pre-trial conference was had commencing shortly after 9:00 A.M. on November 17. A few days prior to that, the respondent judge had given his clerk a written memoi’andum directing him to notify the public prosecutors . and counsel for the defendants to look “into the problem of the six page statement of Mr. Kealoha” and to consider the question of whether physical deletion of references to other defendants could be done without prejudice to the defendants including Kealoha. The memorandum also instructed the clerk to “tell the attorneys that I am thinking that, because of his statement, it may well be that Kealoha should be tried separately from Tai, Lono and Requilman.”
At the conference the court pointed out that Kealoha’s statement incriminated at least two other defendants and that it occurred to the court it would be difficult to physically delete the references to the other defendants and have the statement meaningful. The court then made inquiry of the prosecution on whether it had intention of offering the statement and was advised that it did. Counsel for all defendants expressed the view that the trial of Kealoha should be severed. The court then asked if anyone else wished to state, argument against separate trial of Kealoha. The prosecution pointed out that no motion was before the court and if defendants wanted a separate trial “they should file their motions and that can be handled in the proper order.” The court stated it would do it on its own motion. Upon being asked by the prosecution, “Without any hearing on the motion?”, the court replied, “I’m giving you a chance and anybody who opposes such a separation a chance to be heard right now.” The prosecution protested that the notice was too short. The court then asked if it had any more to say. The Prosecutor informed the court he had a motion to file, which was filed in open court. This was the motion *273to disqualify. Subsequently, tbe court ordered that the trial of Kealoha be severed from the other three defendants. Kealoha’s counsel made inquiry of the order of the trials, and the court stated, without soliciting the prosecution’s position on the matter, “I think that the Kealoha trial should come second.” The prosecution objected and requested Kealoha be tried first. The court confirmed its prior ruling.
The asserted grounds of disqualification boil down to the following:
a. That the respondent judge ordered a list of prospective government witnesses to be given to defendants.
b. That the respondent judge ordered that the statement of defendant Kealoha be given to all the defendants.
c. That the respondent judge, after reading the statement of defendant Kealoha, which had not been admitted into evidence, sua sponte ordered that defendants Lono, Tai and Eequilman be tried separately from defendant Kealoha, after preparing a memorandum to counsel in such terms as to indicate prejudgment of the question of severance and give advice to counsel concerning the right of their clients to a severance.
On the first point I think the court erred. At the same time it must be noted that the prosecution raised solely the objection that there ought to be a subpoena duces tecum, which was supplemented by a request for the “ground rules” under Eules 16 and 17. The Prosecutor made no specific objection that the defendants were not entitled to a list of witnesses. However, there was a disregard of orderly procedure on the part of the court.
Had orderly procedure been followed and a subpoena duces tecum issued,5 followed by a motion to quash, there *274would have been an opportunity, in connection with this and other points arising under Rules 16 and 17, for argument of the significance and application of such cases as Bowman Dairy Co. v. United States, 341 U.S. 214; United States v. Murray, 297 F.2d 812, 820-22 (2d Cir.); Fryer v. United States, 207 F.2d 134 (D.C. Cir.), which is discussed in United States v. Murray and is to be considered with the later case of Jencks v. United States, 353 U.S. 657; Peek v. United States, 321 F.2d 934, 939-42 (9th Cir.); and numerous other cases mostly at the trial court level.6 A variety of views is expressed in the cases, and it is not my purpose to resolve the questions therein discussed. To do that would require briefing of and argument on such questions. It is sufficient to note that the respondent judge manifested a disregard of the rules of court governing orderly procedure which perhaps might have been controlled by this court by an appropriate writ had application been made therefor. Compare, Oyama v. Stuart, 22 Haw. 693, and Fong v. Sapienza, 39 Haw. 79, with Application of Akana, 42 Haw. 415. Of particular interest is the statement of the Supreme Court in La Buy v. Howes Leather Co., 352 U.S. 249, 256:
“* * * As this Court pointed out in Los Angeles Brush Corp. v. James, 272 U.S. 701, 706. (1927) : '. . . [W]here the subject concerns the enforcement of the . . . [r]ules which by law it is the duty of this Court to formulate and put in force,’ mandamus should issue to prevent such action thereunder so palpably im*275proper as to place it beyond the scope of the rule invoked. As was said there at page 707, were the Court ‘. . . to find that the rules have been practically nullified by a district judge ... it would not hesitate to restrain [him]....’”
Be that as it may, the petitioner is not before us for the purpose of enforcing adherence to the rules of court. The record reveals that the prosecution’s efforts in' that direction were hesitant and lacking in forcefulness. Possibly the prosecution was taken by surprise. Even so, it should have stated its dilemma and asked for an adjournment of the conference of October 29 to enable it to research the law and better present its position. The record shows that while protests were made by the prosecution from time to time as to the amorphous nature of the proceedings and the necessity of following the rules, these protests were coupled with a hesitance as to insistence on such objections, even acquiescence at times in the court’s rulings, which substantially undermines the charges now made. So much so that I am unwilling to say that the record demonstrates anything other than judicial error. As was stated in Knapp v. Kinsey, 232 F.2d 458, 466 (6th Cir.) :
“The bias or prejudice which will disqualify a judge must be ‘personal’ bias or prejudice as distinguished from a judicial one. Craven v. United States, 1 Cir., 22 F.2d 605, 607-608, certiorari denied 276 U.S. 627, 48 S.Ct. 321, 72 L.Ed. 739. It is not sufficient if the alleged bias or prejudice arises out of the judge’s background and associations rather than his appraisal of the complaining party personally. Price v. Johnston, 9 Cir., 125 F.2d 806, 811; Eisler v. United States, 83 U.S. App. D.C. 315, 170 F.2d 273, 278. Nor is it sufficient that the alleged bias or prejudice arises from the judge’s view of the law, which may have been *276expressed by him in some prior case. Loew’s, Inc., v. Cole, 9 Cir., 185 F.2d 641, 646; Ferrari v. United States, 9 Cir., 169 F.2d 353. * * * Adverse rulings during the course of the proceedings are not by themselves sufficient to establish bias and prejudice. Ex parte American Steel Barrel Co., 230 U.S. 35, 44, 33 S.Ct. 1007, 57 L.Ed. 1379; Refior v. Lansing Drop Forge Co., 6 Cir., 124 F.2d 440, 444; Littleton v. DeLashmutt, 4 Cir., 188 F.2d 973, 975, certiorari denied 342 U.S. 897, 72 S.Ct. 229, 96 L.Ed. 672; Beecher v. Federal Land Bank, 9 Cir., 153 F.2d 987, 988, certiorari denied 328 U.S. 871, 66 S.Ct. 1364, 90 L.Ed. 1641, rehearing denied 329 U.S. 819, 67 S.Ct. 28, 91 L.Ed. 697. See also In re J. P. Linahan, Inc., 2 Cir., 138 F.2d 650.”
The order that defendant Kealoha’s statement be given to all the defendants, the second point above listed, was made over objection. At the time, it was assumed that all four defendants would be tried together. The ruling of the respondent judge that accordingly all four were entitled to see Kealoha’s statement may be questioned. See, for example, United States v. Abrams, 29 F.R.D. 178, 183 (S.D.N.Y.). But in view of the fact that defendant Kealoha already had obtained these statements the matter was not serious except in connection with the third point, next considered.
At the argument it appeared that petitioner was chiefly incensed over the court’s sua sponte ordering of a severance. But as stated in Schafer v. United States, 362 U.S. 511, 516, “The trial judge has a continuing duty at all stages of the trial to grant a severance if prejudice does appear.” I can see no reason why the respondent judge should wait until defendant Kealoha’s statement ivas offered in evidence before determining that there was no satisfactory way to admit the statement into evidence *277without prejudice to other defendants, if that was his view. Whether the question of severance was rightly or wrongly determined we cannot say. It does seem clear, however, that the petitioner is complaining of respondent judge’s assumption of a duty of acting under Rule 14 sua sponte, a duty which, for example, a federal judge assumed in United States v. Guterma, 181 F. Supp. 195 (E.D.N.Y.), and an appellant asserted without the Court of Appeals questioning the existence of such duty in Russell v. United States, 288 F.2d 520 (9th Cir.). A charge of bias and prejudice cannot be based on such a shaky foundation. The reading by the respondent judge of defendant Kealoha’s statement, the memorandum to counsel, and the so-called “prejudgment,” were all part of the same sua sponte action. However, the hearing on this question of severance was held at the very hour when the trial was to have commenced, and the petitioner’s feeling that he was being given short shrift is not without justification and is easily understood. And this is particularly true in respect of the order of trial after the severance had been ordered. The respondent judge’s handling of the matter did not give the Prosecutor the consideration he should have been accorded in determining whether Kealoha or his three codefendants should be tried first. But in my opinion such conduct cannot be characterized as “bias” or “prejudice” in any sense pertinent here.
I would dissolve the temporary writ and dismiss the petition.
The motion had been heard on March 5, and at the suggestion of the Prosecutor had been held in abeyance awaiting ascertainment as to whether other defendants were going to file similar motions. All defendants were notified of the hearing on this motion, which was held on July 28.
Because of the pendency of another trial in the respondent judge’s division the trial in the murder case under consideration was eventually set to commence at 9:00 A.M., Tuesday, November 17, 1964.
In the ensuing colloquy, the court referred to “a lot of discussion at the recent Judges’ seminar on criminal pretrial,” and to “a California judge there who told us about how much use of it is being made in California.” It is to be noted, however, that California has developed its discovery practice by case law and has not adopted the federal rules of criminal procedure. See Louisell, Criminal Discovery: Dilemma Real or Apparent?, 49 Calif. L. Rev. 56; Jones v. Superior Court, 58 Cal. 2d 56, 372 P.2d 919.
As seen, defendant Kealoha had previously made a motion for, and been granted, the production of statements made by him.
See H. R. Cr. P., Rule 17(c).
Some of these cases specifically hold that a defendant is not entitled under the rules, i. e., in the absence of a statute, to a list of government witnesses, e. g., Dean v. United States, 265 F.2d 544 (8th Cir.) ; United States v. Lavery, 161 F. Supp. 283, 287 (M.D. Pa.) ; United States v. Brennan, 134 F. Supp. 42, 53 (D.C. Minn.) ; United States v. Palermo, 21 F.R.D. 11 (S.D.N.Y.) ; United States v. Haug, 21 F.R.D. 22, 27 (N.D. Ohio) ; United States v. Bryson, 16 F.R.D. 431, 436 (N.D. Cal.) ; but see, United States v. Frank, 23 F.R.D. 145 (D.D.C.).
Hawaii has no statute such as 18 U.S.C.A. 3432, which provides for the furnishing of a list of witnesses in capital cases.