[248]*248OPINION OF THE COURT BY
TSUKIYAMA, C. J.
This is a petition filed by Mr. John H. Peters, Prosecuting Attorney of the City and County of Honolulu, for the issuance by this court .of a writ of prohibition prohibiting Judge Ronald B. Jamieson, Judge of the Circuit Court of the First Judicial Circuit, from taking cognizance of the murder case, State of Hawaii v. Kenneth K. Lono, Alfred J. Tai, Donald Maui Kealoha and John Requilman, Jr., Cr. No. 34388, in said Circuit Court. Upon the filing of an amended complaint, a temporary writ of prohibition and an order to show cause issued against said judge.
The petitioner alleges, inter alia, that on October 29, 1964, said circuit judge ordered the prosecution and all defense counsel to appear for a conference, at which the prosecution was ordered by said judge, over objection, to produce and give to all parties involved a list of prospective government witnesses and the statement of defendant Kealoha, without authority and contrary to law; that on or about November 13, 1964, said judge, having read Kealoha’s statement which was not yet in evidence, caused a memorandum to be distributed among the defense attorneys expressing concern as to the joinder of defendants and questioning whether separate trials were needed; that on November 17, 1964, the date when trial was to commence, petitioner filed a motion to disqualify said judge upon the ground that the judge, for the reasons and facts set forth in the supporting affidavit, had a personal bias and prejudice against the prosecution, which motion the judge summarily denied; and that under and by virtue of such motion and affidavit, said judge was peremptorily disqualified and no longer had jurisdiction of said Criminal No. 34388.
Bespondent Judge Jamieson, in response to the instant petition, filed an answer setting forth certain admissions, denials, and affirmative averments in purported justification of the proceedings which occurred at the “pre-trial” [249]*249conferences held on October 29, 1964, November 2 and 17, 1964.
On November 24, 1964, this court heard oral argument. The respondent was present but relying upon his written answer, preferred not to argue except to clarify certain points. Without objection, however, he supplemented his written answer by submitting to the court as evidence the circuit court record in Cr. No. 34388 and the transcripts covering the “pre-trial”1 conferences above mentioned.
At this juncture, it is deemed apropos to set forth and consider some of the pertinent facts involved in the proceedings as revealed by the record and the transcripts.
Three of the defendants, charged with the murder of two police officers, are represented by court-appointed counsel.
On February 20, 1964, defendant Eequilman filed á motion for relief from prejudicial joinder which was in effect a motion for severance. This motion was denied by order entered on September 23, 1964.
On February 28, 1964, defendant Kealoha filed a motion to produce and allow said defendant to make “a photo copy of all statements or reports in the possession of the State which were made by Defendant DONALD MAUI KEALOHA.” The motion was granted by order entered on March 6, 1964.
At the outset of the conference held on October 29, 1964, the prosecution requested a continuance of the date of trial, previously set for November 9, 1964, on the ground of administration and internal problems in the prosecutor’s office, coupled with the fact that the mental exami[250]*250nation report of one of the defendants was still pending and that it was not certain whether all the defendants had entered their pleas.2 The request was not only unopposed but all counsel informed the court that a reasonable delay would not jeopardize their clients’ rights. The court, however, denied the request during the same morning and confirmed it in the afternoon when counsel reported that their respective clients desired an early trial.
It is noted that before recessing the morning conference, the court ordered the prosecution to “bring a list of witnesses, bring all the statements and all of the unsigned written statements and/or transcriptions of stenographic notes of oral statements, ■* * Then followed the colloquy set forth below.3
Shortly after the conference resumed in the afternoon, the prosecution suggested that some ground rules should be laid before proceeding under Rule 16 and Rule 17(h) of the Hawaii Rules of Criminal Procedure. In that regard,, the court said: “I think that at a pretrial, anything that is discoverable or inspectable under Rule 16, upon motion is discoverable 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. I don’t think that Rule 16 puts any limitation on the scope of pretrial proceedings. So, I don’t think Rule 16 really affects us.” [251]*251While the list of witnesses was being distributed, the prosecution questioned the proceeding as set forth below.4
Thereafter, the prosecution again sought “to know the ground rules if we’re not following Rule 16.” To which 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.”
In the wake of the foregoing colloquy, which resulted in the court’s directing the furnishing by the prosecution of any statement made by any defendant to the other defendants, the prosecution endeavored to express its views on the scope of Rule 16, H.R.Cr.P., but could not finish because of interruption by other counsel. However, the court summed up its view as follows: “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.”
On the day of trial, November 17, 1964, the court held [252]*252another conference with all counsel involved, with the defendants present. Some days prior thereto, a handwritten memorandum was given by the judge to his clerk to notify the prosecution and all defense counsel to consider the question of physical deletion of parts of Kealoha’s statement which referred to Tai, Lono and Requilman and to tell them that he, the judge, was thinking that Kealoha should be tried separately. The handwritten memorandum is attached to both the petition herein and in the respondent judge’s answer thereto. Discussion at the conference centered upon the matter of severance. The prosecution argued against severance pointing to the fact that there was no motion before the court and that a motion earlier made for severance had been denied by the court. The court stated that a severance would be ordered on its own motion. The prosecution requested a hearing on the matter and time to prepare, but the court replied: “I’m giving you a chance and anybody who opposes such a separation a chance to be heard right now.”
Shortly thereafter, the prosecution filed in open court a motion to disqualify, setting forth in the accompanying affidavit the following :
“That the Honorable Ronald B. Jamieson has a personal bias and prejudice against the State of Hawaii, and the facts and reasons for his belief that such bias and prejudice exist are as follows:
“1. That the Honorable Ronald B. Jamieson has previously ordered a list of prospective government witnesses and the statement of Defendant Donald M. Kealoha to be given to counsel for all defendants, without authority and contrary to the laws of the State of Hawaii;
“2. That the Honorable Ronald B. Jamieson has read a statement of the. Defendant Donald M. Kealoha without said statement being admitted into evidence;
[253]*253“3. That the Honorable Ronald B. Jamieson has given advice to counsel for the defendants by way of a memorandum note to his court clerk; and
“4. That the Honorable Ronald B. Jamieson has prejudged the question of separate trials for the defendants in this cause on the material issues in this cause.”
The motion was summarily denied.
The court then stated that he felt duty-bound to separate Kealoha’s trial.
At this point, the prosecution informed the court that a petition for a writ of prohibition would be filed in the Supreme Court within a short time and objected to further proceedings for the time being. The court, however, proceeded to discuss the order in which the defendants should be tried. The prosecution urged that defendant Kealoha should be tried first. Over objection, the court ordered defendants Lono, Tai and Requilman to be tried first.
It appears appropriate preliminarily to dispose of two issues raised by the petitioner. The petitioner contends that upon the filing of the affidavit of bias and prejudice on November 17, 1964 the jurisdiction of the presiding judge over the case automatically terminated. According to this contention, no examination of the legal sufficiency of the facts and reasons set forth in the affidavit should be made. Petitioner concedes that this has not been the construction put upon the statute, and that this court has followed the federal rule that “the reasons and facts for the belief the litigant entertains are an essential part of the affidavit, and must give fair support to the charge of a bent of mind that may prevent or impede impartiality of judgment.” Berger v. United States, 255 U.S. 22, 33, 34, 41 S.Ct. 230, 65 L.Ed. 481, followed in Whittemore v. Farrington, 41 Haw. 52, 57.
Petitioner points to the word “sufficient” which pre[254]*254cedes the word “affidavit” in the federal statute5 but not in ours.6 However, even before this word was added the federal statute had been so interpreted, as illustrated by Berger, supra. We adhere to the rule that the judge to whom an affidavit is presented under section 213-3 (b) may pass upon its legal sufficiency, though not upon the truth or falsity of facts alleged. Whittemore v. Farrington, supra; In re Bouslog, 41 Haw. 270; Peterson v. McKinley, 45 Haw. 44, 361 P.2d 60; Glover v. Fong, 39 Haw. 308, 314. In view of this settled rule we undertake no. review of the many state cases cited by petitioner.
Petitioner argues that the legislative history of the statute was overlooked in Whittemore and contends that the Governor’s veto message in 1931 should have been considered, citing H. Jour. 1931, pp. 1569-70. The statute was enacted over the Governor’s veto by Act 292, S.L. 1931, but whether the legislature agreed or disagreed with the Governor’s construction of the statute cannot be determined. We find in this matter no sound reason for adopting a new construction of the statute. It is noteworthy that the statute had been construed in the Glover, Whittemore and Bouslog cases before it was reenacted [255]*255in the same terms by Act 5, Sp. S.L. 1959, 1st Sess. Cf., In re Sprinkle and Chow Liquor License, 40 Haw. 485; Wright v. City and County, 41 Haw. 603, 608; Collins v. Ako, 35 Haw. 440.
Before taking up the application of section 213-3 (b) in the case before the court we consider another point argued by petitioner, apparently in anticipation of there being some doubt in the matter. On this point we are in agreement with petitioner. We hold that the State may seek disqualification of a judge in a criminal case and is not precluded, merely because the State was the party that instituted the criminal case, from applying to this court for a writ of prohibition if such disqualification is denied. In other words, in criminal cases as in civil cases, the remedy of the statute and the remedy of the writ are not confined to defendants. State ex rel. Tittmann v. Hay, 40 N.M. 370, 60 P.2d 353, as to the remedy of the statute; Commonwealth v. Howard, 267 Ky. 287, 102 S.W.2d 18, State ex rel. McAllister v. Slate, 278 Mo. 570, 214 S.W. 85, and State ex rel. Spencer v. Baker, 212 Ind. 44, 7 N.E.2d 984, as to the remedy of the writ; Annot., 92 A.L.R. 2d 306; see also the mandamus cases of State ex rel. Douglas v. Superior Court, 121 Wash. 611, 209 Pac. 1097; State v. Brown, 8 Okla. Crim. App. 40, 126 Pac. 245; State ex rel. Brown v. Dewell, 131 Fla. 566, 179 So. 695, Annot., 115 A.L.R. 866; cf., Peterson v. McKinley, supra, 45 Haw. 44, 361 P.2d 60 and Kaelemakule v. Kaelemakule, 33 Haw. 725, in each of which prohibition was sought by a libellant.
Due process requires an impartial tribunal. In re Trask, 46 Haw. 404, 420, 380 P.2d 751, 760; In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 99 L.Ed. 942; Knapp v. Kinsey, 232 F.2d 458, 465 (6th Cir.). In a criminal case the state is as much entitled to an impartial tribunal as are the defendants. This appears from the cases previ[256]*256ously cited upholding the right of the state to seek the disqualification of the presiding judge.
Save in certain instances inapplicable here, the State has no appeal in a criminal case unless the defendants are convicted. R.L.H. 1955, § 212-2. Rulings prejudicial to the State and leading to an acquittal are never reviewed. Under these circumstances it is all the more important that the judge be impartial.
There can be no doubt that prohibition is an available remedy to review the trial judge’s ruling refusing to disqualify himself,7 unless there are reasons why the writ should be withheld. As seen from the reasoning of the court in Peterson v. McKinley, supra, it is in the area where an appeal lies to review the trial judge’s ruling refusing to disqualify himself that this court encounters the question whether, in the exercise of a sound discretion, prohibition should not be allowed as a remedy to oust the trial judge. We are satisfied that in a criminal case, where the writ is sought by the State, the turning point is whether grounds of disqualification have been established. As stated in Commonwealth v. Howard, supra, 267 Ky. 287, 102 S.W.2d 18:
“In the event there should be a verdict of acquittal, the Commonwealth is without adequate remedy if the trial judge has erroneously refused to vacate the bench. It is this inability of the Commonwealth to have the error corrected on appeal which authorizes this court in an original action to review such an order, and, if deemed proper, to issue a writ of prohibition restraining the judge from sitting in the case.”
Disqualification for bias or prejudice does not neces[257]*257sarily rest on the filing of an affidavit of bias or prejudice. It may appear from the record itself. Knapp v. Kinsey, supra; Whitaker v. McLean, 118 F.2d 596 (D. C. Cir.). Indeed, any motion to disqualify based on matters of record must find its support in the record. Revised Laws of Hawaii 1955, section 213-3 (b) was never intended to permit a party to file an affidavit setting out as incontrovertible facts matters which appear from the record itself. Peterson v. McKinley, supra, 45 Haw. 44, 47, 361 P.2d 60, 62. Hence, in the present case, whether grounds of disqualification have been established must be gleaned from the record. We hold that in a proper case a writ of prohibition will lie to compel a trial judge to recuse himself because of bias or prejudice which appears from the record, where as here the case is one in which the question of disqualification cannot otherwise be reviewed. Hence, we have deemed it necessary to review the record and to depict the pertinent portions of the proceedings as set forth earlier in this opinion.
We now reach the principal issue as to the respondent judge’s disqualification and consequent legal incompetency to continue to preside over the temporarily interrupted trial of Cr. No. 34388.
It is the generally recognized rule as petitioner concedes that errors in rulings by the tidal judge in the course of a judicial proceeding cannot be made the basis upon which bias or prejudice is predicable. It is also generally established that prohibition does not lie in an appellate court where such errors may be reviewed on appeal. In Peterson v. McKinley, 45 Haw. 44, 361 P.2d 60, this court held that the remarks, rulings or actions of the trial judge and the manner in which the judge is conducting the proceedings before him do not form the basis for prohibition as a remedy to oust him for bias or prejudice “if an appeal would lie ultimately though not [258]*258immediately.” Indeed we did state in that case: “We are satisfied that the writ does not lie as of right in such a case, the order ultimately being viewable on appeal. Availability of the writ is a matter within the discretion of this court, which will not issue the writ unless there are ‘such “special circumstances” as to make it a “rare and exceptional case.” ’ ”
As seen, the prosecution normally cannot appeal a criminal case in behalf of the state. If it fails to prevail in the trial court, it is forever foreclosed from seeking appellate review of erroneous rulings, remarks and actions of the trial court through the established method of appeal. In the interest of fair and impartial trial in a criminal case, there are situations in which the extraordinary remedy of prohibition warrantably may be invoked. As the court said in Commonwealth v. Murphy, 295 Ky. 466, 475, 174 S.W. 2d 681, 685: "* * * where the commonwealth makes an application for such a writ to prohibit a Judge from trying a criminal prosecution, we issue it upon a sufficient showing because if the judgment should be adverse to the commonwealth and the defendant be found not guilty, there is no remedy.”
We make no inference that merely because there is no appeal in a criminal case, the prosecution may resort to prohibition to disqualify the trial judge for making rulings unfavorable to it. There must perforce be circumstances on the record which make the case a rare and exceptional one. Peterson v. McKinley, supra. To be sure, the ad-measurement of a case as to'whether it is rare and exceptional, being a matter of degree, is not free from difficulty. That the prosecution has no appeal, though not controlling, is one factor which may be considered together with the entire record.
For better and clearer understanding, we have related chronologically some of the pertinent highlights in the [259]*259forepart of this opinion as they appear on the record.
It is contended by the petitioner, and the record unmistakably reveals, that the respondent judge has held preliminary conferences, with all the formalities sanctioned by the rules applicable only to pre-trials in a civil case, and made directions and orders in disregard of the procedural rules governing the trial of a criminal case; that the respondent called for pre-trial hearings in Cr. No. 34388 on three separate dates before the trial, though the prosecution questioned such authority; that the respondent manifested bias and prejudice against the prosecution by distributing a handwritten memorandum to all defense counsel containing suggestive matters; that the respondent ignored the clear import of Rule 16, H.R.Cr.P., which limits the right of discovery to certain tangible objects obtained from the defendant or to items obtained from others by seizure or process, and ordered the prosecution to produce and distribute to the defendants a list of all prospective government witnesses; that the respondent ordered, without authority, the prosecution to distribute to all the defendants copies of defendant Kealoha’s statement; and that in the course of discussing the matter of severance, the respondent prejudged the question of admissibility of Kealoha’s statement.
We do not find it necessary to labor each of the foregoing contentions. The entire factual situation can be gleaned from the record of the trial court and the transcripts. At the very inception of the series of conferences, the prosecution’s request for a reasonable delay on account of administrative and reassignment problems within the department was denied, despite the fact that defense counsel initially informed the court that a reasonable delay would not be prejudicial. Then followed considerable confusion in the matter of the application of Rules 16 and 17, H.R.Cr.P. Notwithstanding the prosecution’s [260]*260protestation as to the authority for so doing, the trial judge proceeded to lay down, his own rule and ordered the prosecution to furnish to defense counsel copies of the list of prospective witnesses (82), and “all the statements and all of the unsigned written statements and/or transcriptions of stenographic notes of oral statements.” When the prosecution stated that if the defendants wanted copies of anything, they should come in with a subpoena duces tecum, the court replied: “The Court can order it and the Court does so order it at this time.”
Moreover, when the court’s attention was referred by the prosecution to the absence of any motion for discovery and inspection8 under Rules 16 and 17(h) (1), the trial judge stated: “* * * it does seem that in pretrial anything can be ordered in pretrial without any motion being filed.”
Further expressing his view, the trial judge said: “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 [261]*261really 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.”
On the morning of November 17, 1964, the date set for trial, a final conference was held with counsel and all the defendants present. Referring to the handwritten memorandum he had previously distributed, the trial judge ashed the prosecution whether defendant Kealoha’s statement would be offered in evidence. Upon receiving an affirmative reply, he then expressed his views on the matter of severance. The prosecution protested that there was no motion, to which the judge replied that he was seriously considering separate trials. The colloquy set forth below then ensued.9 The prosecution continued to object to any severance and pointed out that the matter had been earlier settled, obviously referring to a written motion filed by defendant Requilman on February 20, 1964, for severance of his own trial from his codefendants, which motion had, after hearing, been denied by the court by written order entered on September 23, 1964.
Observing that there would be no change in the state of the record, the prosecution then filed in open court the motion and affidavit in question to disqualify. Thereupon, the court said: “Let the motion be filed in open court at this time, and copies distributed to the defendants. Well, the motion to disqualify is denied. I don’t think it’s necessary to have any argument or further hearing on it. [262]*262The court has read the affidavit and the motion is denied.”
After a short recess, the prosecution informed the court that a petition for a writ of prohibition would be filed and that its preparation would be completed in 15 to 20 minutes. The court nevertheless proceeded to take up the matter pertaining to the order of trial after severance. The prosecution requested the court to try the Kealoha case first, if there must be a severance. The court, however, ruled: “And it is ordered that the trial of Defendants Requilman, Tai and Lono proceed and that the trial of Defendant Kealoha be deferred until some time which will be set in the future for a trial date which will be after the completion of the trial of Messrs. Requilman, Tai and Lono. And I think that would prevent the Kealoha statement getting involved with the Tai, Lono, Requilman trial in the newspapers, and that’s the reason for the order and that ought to be sufficient reason.”10
In the administration of justice by a court of law, no principle is better recognized as absolutely essential than that every case, be it criminal or civil, and the parties involved therein are entitled to the “cold neutrality of an impartial judge.” The right of litigants to a fair trial must be scrupulously guarded. Due to human limitation and imperfection, even judges, lest they are on constant guard, are susceptible to the manifestation of predilection by their conduct or remarks and thus incur the suspicion that they are biased. Particularly in a criminal case, it is imperative that a judicial tribunal accord to the prosecution a treatment no less fair and impartial than that to which the defense is entitled when it is common knowledge that the former is without right to receive an appellate review. In the words of Mr. Justice Cardozo, Snyder v. [263]*263Massachusetts, 291 U.S. 97, 122, 54 S.Ct. 330, 78 L.Ed. 674, “But justice, though due to the accused, is due to the accuser also. The concept of fairness must not be strained till it is narrowed to a filament. We are to keep the balance true.”
As we have seen, and we repeat, that disqualification may appear on the record and does not necessarily rest on the filing of an affidavit of bias or prejudice. After a careful examination of the record here and in the light of the cumulus of comments, directions, rulings and orders made by the respondent judge in the course of the pro- , ceedings at the preliminary conferences, which he equated with civil pre-trial hearings not provided for or contemplated by the Hawaii Rules of Criminal Procedure, we are impelled to the conclusion that the rulings and orders were not merely adverse and prejudicial to the prosecution but made, in utter disregard of established rules. What appeared to be reasonable requests of the prosecution for continuance were rejected. The distribution of the handwritten memorandum, the comments on the status of defendant Kealoha’s statement in the presence of all the defendants, the summary denial of the motion to disqualify without permitting argument thereon, the order of severance without motion or due hearing, and the peremptory setting, over the prosecution’s protestation and without due hearing, of the order in which Kealoha and the other defendants are to be tried, have all combined to prejudice the prosecution and to raise a fair presumption that the respondent judge is incapable of according the prosecution a fair trial.
Perhaps the judge, in light of the gravity of the alleged crime for which the defendants are to be tried, Avas endeavoring to shoot his bolt in demonstrating that the defendants were receiving meticulous consideration in point of fairness and justice. The anxiety and concern [264]*264of a judge to accord to the accused an absolutely fair and just trial is indeed commendable. But in so doing, he should be equally ready and alert to protect the rights of the accuser. Any one-sided bent would be an injustice not only to either of the parties but to society itself.'
We adhere to the rule that mere erroneous or adverse rulings by the trial judge do not spell bias or prejudice and cannot be made the basis for disqualification. But when other factors such as appear on the record of the instant case are collectively considered together with such rulings, we do not hesitate to hold that they do form á basis upon which bias or prejudice can be predicated. Such was the situation which obtained in State ex rel. McAllister v. Slate, 278 Mo. 570, 214 S.W. 85. Said the court in that case: “We repeat, for emphasis’s sake, that nothing is better settled in law than that mere error of the kind mentioned, when standing alone, disassociated from other facts and circumstances, does not afford the least evidence of bias or prejudice.” Coupling other existing factors with erroneous rulings of law, the court found bias and prejudice and issued a permanent writ.
We are satisfied from the record that Judge Jamieson has generally conducted the proceedings with dignity. His probity is not questioned. We are, however, constrained to point out that in his overzealousness to safeguard the rights and interests of the accused in this case, he has overreached himself and unwittingly prejudiced the prosecution.
Because it squarely fits the circumstances here, we further quote from State ex rel. McAllister v. Slate, supra:
“* * * Prejudice is the ultimate fact; its origin is wholly immaterial. Likewise it is immaterial whether it was warranted or unwarranted, justified by the facts or not justified thereby. If in fact bias exists, to an extent which will preclude a fair, unprej[265]*265udiced, and unbiased weighing of the law and the facts bn the state’s side upon a trial * * *, then prejudice is present to a degree forbidden to a judge by both the common law [citation] and the statute [citation].”
T. Irving Chang and Richard T. Ishida, Deputy Prosecuting Attorneys, City and County of Honolulu (John H. Peters, Prosecuting Attorney), for petitioner.
Judge Ronald B. Jamieson, respondent, pro se.
J. Russell Cades, William L. Fleming and William M. Swope for respondent Donald Maui Kealoha.
Nathaniel Felser for respondent Kenneth K. Lono.
J. Gamier Anthony, Frank D. Padgett and Thomas M. Waddoups for respondent Alfred J. Tai.
Donald E. C. Low and Robert K. Richardson for respondent John Requilman, Jr.
The writ of prohibition, accordingly, will be made permanent. It is also ordered that all rulings and actions made or taken by the respondent judge in Cr. No. 34388 subsequent to the denial of the motion to disqualify shall be and they hereby are set aside and declared to be without effect. The assigned judge shall enter an order discharging the jury panel or panels thus far summoned in said Cr. No. 34388 and proceed, if required, to consider the question of severance, and if severance be granted, the order of trial.