
    THE QUEEN vs. V. FERNANDEZ.
    Exceptions.
    Hearing, July 16, 1891.
    Decision, July 21, 1891.
    Judd, C.J., Bicicerton and Dole, JJ. McCully, J., Absent.
    The defendant pleaded guilty, in the Police Court of Honolulu, to charge of larceny in the third degree, and was sentenced; he appealed to the Supreme Court and moved that he be allowed to withdraw his plea of guilty and plead not guilty. The Presiding Justice denied the motion, and defendant excepted. Held, no error.
   Opinion of the Court, by

Judd, C.J.

The law divides criminal cases into two classes; one class is of those within the summary jurisdiction of the Police and District Court, and the other those which are only triable by a jury, upon indictment. In the first class mentioned, the Police and District Justices have complete and full jurisdiction to hear and determine the case. In such cases the magistrate has full authority over the defendant, and if he pleads guilty inadvisedly and wishes to withdraw the same, the magistrate has authority to permit him to do so before final judgment.

If, however, the sentence of the lower Court has been pronounced on the defendant on his plea of guilty, and an appeal is taken, the issue of guilty or not guilty is not before the Appellate Court. In fact, the issue in a criminal case is made by the defendant’s plea of not guilty. And when the plea is guilty there is no issue before the Court, unless the question of mitigation of sentence be called an issue.

Attorney-General Whiting, for prosecution.

A, Rosa, for defendant.

The case of The King vs. Maikai, 6 Hawn., 145, is an authority for the position that a plea of guilty, entered before a' Court having jurisdiction of the offense, cannot be retracted in the Appellate Court, and this authority has been followed without question.

There are many cases reported where the defendant has asked of the Court, that took his plea of guilty, for permission to withdraw the plea and plead not guilty, and Courts are vested with the discretion to allow or refuse this, but we have not been able to find a case where this has been done in an Appellate Court. See U. S. vs. Bayand, 23 Fed. Bep., 721.

We hold that the leave to withdraw the plea of guilty was properly declined. Exceptions overruled.  