DISSENTING OPINION OF
ABE, J.The majority of this court holds that after the Circuit Court quashed the indictments, the defendants may continue to be held in jail under the indictments for their failure to make bail. I disagree.
*84The State did not have the right to appeal an order or judgment quashing an indictment until the enactment of Act 37, SLH 1931, which is now HRS § 641-12.
It is a well-settled rule that the legislature may define and limit the right of appeal because the remedy of appeal is not a common law right and it exists only by authority of statutory or constitutional provisions. In Re Tax Appeal of Hawaiian Land Co., 53 Haw. 45, 487 P.2d 1070 (1971); Re Sprinkle & Chow Liquor License, 40 Haw. 485, 491 (1954), Collection Corp. v. Anaxni, 33 Haw. 911, 913 (1936); Szuchy v. Hillside Coal & Iron Co., 150 N.Y. 219, 44 N.E. 974 (1896); Superior Wheeler Cake Corp. v. Superior Court, 203 Cal. 384, 264 P. 488 (1928).
The Hawaii Rules of Criminal Procedure, Rule 37, abolished bills of exceptions and writs of error and provided for all appeals to be taken by the filing of notices of appeal. However, I do not believe that a statutory provision which dealt with one form of appeal can be deemed applicable to an appeal taken under the rule which is different from the form of appeal provided by statute.
For example, Part I (§§ 641-1 to 641-5) of Chapter 641, Appeals to Supreme and Circuit Courts, provides for appeals from the district courts to the circuit courts or the supreme court (HRS § 641-1). However, § 641-2 only provides for appeals “from all decisions, judgments, orders, or decrees of circuit judges in chambers, to the supreme court * * Then § 641-5 provides that “[a]n appeal duly taken and perfected * * * from a judgment, order, or decree of a circuit judge * * * shall operate as an arrest of judgment and stay of execution * * This court, prior to the adoption of Hawaii Rules of Civil Procedure and Hawaii Rules of Criminal Procedure interpreted this provision to be applicable only to appeal taken from a judgment or decree of a circuit court judge sitting in chambers. Collection Corp. v. Anami, supra. Now, here, I believe this court also so interprets the provision, and I agree.
*85Section 641-12 which authorizes the State to take an appeal from an order quashing an indictment is contained in Part II (Writs of Error) of Chapter 641, and it is silent as to the effect of an appeal taken by the State. On the other hand, § 641-16, also a portion of Part II, specifically provides that a notice of appeal given by a defendant in a criminal case “shall operate as a stay of execution, and shall suspend the operation of sentence * *
Section 641-33, a portion of Part III (Bills of Exceptions) provides that “[u]pon the allowance of the bill of exceptions * * * the questions arising thereon shall be considered by the supreme court, but judgment may be entered and may be enforced or arrested * * * as provided in Section 641-5 in the case of an appeal * *
Thus, the legislature has provided for the staying of execution of a judgment pending an appeal in all cases except when the State takes an appeal in a criminal case. In my opinion the failure of the legislature to so provide is a definite expression of its intention that an appeal taken by the State from an order quashing an indictment will not stay the execution of such an order. This I believe is in accord with our fundamental principle of criminal justice that one is presumed to be innocent until he is proven guilty. Also, I believe that freeing of defendants upon the quashing of indictments pending the determination of the issue on appeal taken by the State would not be as prejudicial or harmful to the State as the retention of defendants in jail for their failure to make bail would be to defendants.
In light of this expressed legislative intent, how can this court justify its holding “that in order to give effect and meaning to the State’s right to appeal under HRS § 641-12, the status quo is maintained pending appeal”? Or is this court holding that the intent of the legislature was to stay the execution of an order quashing an indictment when an appeal was taken by the State, but failed to so provide. If that is so, it was the failure of the legislature to enact proper legislation. The statute is crystal clear; there is nothing *86to be interpreted and it must be given effect according to its plain and obvious meaning.1 This court by its holding is definitely usurping the legislative power and is entering into the legislative field.2
The Circuit Court entered an order quashing the indictments. Thus, the issue simply stated is: Were the indictments quashed or not? If they were quashed, in my opinion the charges contained therein were voided. Thereafter, defendants were not charged with the commission of any crime or offense. Thus, it would be illogical to hold that defendants continue to be subjected to the charges contained in the quashed indictments and upon their failure to make bail they should be imprisoned.
This court with approval cites and quotes Anderson v. Callahan, 119 Wash. 535, 206 P. 13 (1922), which held that though an information was quashed, as the state was authorized to take an appeal and as “[a] warrant was issued under it, and the respondent took custody of the prisoner under and by virtue of that sworn charge. He still retains custody of the prisoner under the same authority” and, therefore, the prisoner should not be discharged on a writ of habeas corpus.
I believe the holding of the Washington court is illogical and irrational and should not be followed by this court. When an information or an indictment is quashed, there is no charge under which a defendant may be held and tried. Thus, how can his imprisonment be justified on a warrant of arrest issued by virtue of and pursuant to the indictment which has been quashed? When the source of authority for the issuance of the warrant has been voided, the warrant itself becomes defective and it cannot become the source of *87authority to justify the arrest and imprisonment.
This court also cites State v. McCarty, 243 Ind. 361, 185 N.E.2d 732, 737 (1962), where the Indiana Supreme Court in construing a statute stated that it “expressly provided that, following the sustaining of a motion to quash, ‘the defendant shall not be discharged,’ pending the filing of a new indictment * *
And that “the sustaining of the motion to quash does not ‘wipe out’ the original charge. Rather, the statute and the cited case recognize the fact that the original affidavit or indictment, although quashed, continues to have the force and effect necessary to hold the accused * * * until such time as a prosecution * * * may be refiled.”
The Indiana statute contained a savings clause but we have no such statute in Hawaii and therefore the case is in-apposite.
H.R.Cr.P., Rule 12(b) (5)3 referred to by this court may be similar to the Indiana statute; however, this court has held that it is not applicable here.4
I would grant the petition and thereby release the petitioners.
20th Century Furn. v. Labor Bd., 52 Haw. 577, 580, 482 P.2d 151, 153 (1971); Public Utilities Comm. v. Narimatsu, 41 Haw. 398 (1956); Territory v. Morita, 41 Haw. 1 (1955); Kauai v. MpGonagle, 33 Haw. 915 (1936).
Pillsbury v. United Engineering Co., 342 U.S. 197 (1952); Levy v. Kimball, 51 Haw. 540, 546, 465 P.2d 580, 584 (1970); A. C. Chock, Ltd. v. Kaneshiro, 51 Haw. 87, 93, 451 P.2d 809, 813 (1969); Marks v. Waiahole Water Co., 36 Haw. 188 (1942); People v. Olah, 300 N.Y. 96, 89 N.E.2d 329 (1949).
H.R.Cr.P., Rule 12(b)(5) reads:
“(5) jEffect of Determination. If a motion is determined adversely to the defendant he shall be permitted to plead if he had not previously pleaded. A plea previously entered shall stand. If the court grants a motion based on a defect in the institution of the prosecution or in the indictment or information it may also order that the defendant be held in custody or that his bail be continued for a specified time pending the filing of a new indictment or information. Nothing in this rule shall be deemed to affect the provisions of any state statute relating to periods of limitations.”
If the rule were applicable, the question will arise whether the rule affects substantive rights and not procedural matters and therefore not within the rule-making powers of the judiciary. It is to be noted that under Art. V, Sec. 5, Hawaii State Constitution, the Supreme Court has powers “to promulgate rules and regulations in all civil and criminal cases for all courts relating to process, practice, procedure and appeals, which shall have the force and effect of law.”