(dissenting).
I find myself unable to concur in the breadth and scope of this relinquishment of the secrecy of grand jury proceedings, even though this case is one in prohibition, wheye our review is limited. We may concede that there has been some erosion of the rigid, common-law rule of grand jury secrecy, and that some discretion now rests in the appropriate court. 23 C.J.S. Criminal Law § 9S6, and cases cited. But the extent to which this invasion of secrecy is permitted varies widely from court to court and from state to state; it by no means follows that a defendant in the ordinary criminal case is entitled to an inspection of the minutes or to a transcript of the testimony of the prosecution witnesses. Even in New York where the right is permitted to a greater or less degree under a statute relating to the quashing of indictments, it is held that the power should be exercised sparingly. People v. McCann, 166 Misc. 269, 2 N.Y.S.2d 216.
Our statutes have been reviewed in the principal opinion. The discretion which the trial court has may be said to arise from our statutory provisions. State v. Thomas, 99 Mo. 235, 260-262, 12 S.W. 643. The purport of our statutes is that neither the witnesses nor the reporter shall divulge the testimony given before the grand jury unless lawfully required to testify thereto. Obviously, the release of the transcript is a divulgence of the testimony, to a far greater extent than the witnesses could do from memory. The instances in which grand jurymen may testify are fixed by statute. It .remains, of course, for the courts to delineate the extent of any existing discretion. In State v. Pierson, 343 Mo. 841, 123 S.W.2d 149, the court recognized the existence of some degree of discretion, citing 16 C.J. 801, and New York cases, but it indicated, as I construe the opinion, the necessity of caution; the motion for inspection was there denied. In State v. Brinkley, 354 Mo. 337, 189 S.W.2d 314, 326, the defendant was indicted for perjury before the grand jury; the testimony of two grand jurors was the foundation of the State’s case, apparently under our statute expressly authorizing such testimony “upon a complaint * * * for perjury.” The court there said, 189 S.W.2d loe. cit. 335: “Their memories were somewhat faulty. The court had a discretion, State v. Pierson, 343 Mo. 841, 851(3), 123 S.W.2d 149, 152 (4). In its reasonable exercise the court might have permitted appellant to examine the grand jury notes covering his own testimony.” Such an occasion has not yet arisen in the present case, there having been no trial and no such demonstrated necessity. In State v. McDonald, 342 Mo. 998, 119 S.W.2d 286, the court held, after reviewing the applicable statutes, that a motion for inspection of grand jury minutes for impeachment purposes was properly *286overruled; it recognized, again, the existence of some discretion, to be exercised with caution and for specific purposes. The court also noted, among other stated reasons for the denial of the motion, that this was “a general fishing expedition into the minutes of the grand jury” (119 S.W.2d loc. cit. 289). In Mannon v. Frick, 365 Mo. 1203, 295 S.W.2d 158, 164, the question arose upon objections to the introduction of evidence at a civil trial; the only evidence which in any way concerned the grand jury proceedings consisted of: “ * * * the identification of copies of two executed receipts, the originals of which had been used before the grand jury and had subsequently been lost, and the testimony of a witness that in his opinion the signature of plaintiff on one of these receipts was his genuine signature. * * ” The court noted that the rule of common-law secrecy had been substantially modified, but the ruling on those facts can in nowise govern this case.
The courts of Missouri have never before, in my opinion, approached even close to such a release of the secrecy as here ensues. Missouri has legislated on the subject of grand juries since 1835 (R.S.1835, pp. 478-481), but the legislature has never seen fit to authorize such a disclosure as this, though it has enacted much more limited ones. The only possible legislative sanction for the present opinion is the ambiguous exception “unless lawfully required to testify * * To me, this is not a carte blanche authorization to the trial courts to discard all secrecy not expressly preserved by statute. The public generally has proceeded upon the usual lay assumption that grand jury proceedings are secret, as indicated in the statutory oaths themselves. The courts are not primarily policy-making bodies. In my opinion so broad a turn-around on an issue affecting the public interest should await legislative sanction.
One reason for the rule of secrecy is “to promote a complete freedom of disclosure” by grand jury witnesses. Mannon v. Frick, 365 Mo. 1203, 295 S.W.2d 158, 162. It is true that depositions of such witnesses may be taken (Ex parte Welborn, 237 Mo. 297, 141 S.W. 31), but from a practical standpoint this is much less offensive and embarrassing to the witnesses than it would be to lay open to the accused, and eventually to the public, in every bare word and detail, the testimony of each witness before the grand jury, where he presumably testified freely and without objections or benefit of counsel. In the very recent case of Pittsburgh Plate Glass Co. v. United States, 79 S.Ct. 1237, 1241, decided June 22, 1959, the court upheld the discretion of a trial court in rejecting the request of anti-trust defendants for a transcript of the grand jury testimony of the government’s chief prosecuting witness; the request was made during the trial, after the direct examination of the witness, and after he disclosed that he had testified on the same subject matter before the grand jury. The court said, in part: “This conclusion, however, runs counter to ‘a long established policy’ of secrecy, United States v. Procter & Gamble, supra, 356 U.S. [677], at page 681, 78 S.Ct. [983], at page 986, [2 L.Ed.2d 1077], older than our Nation itself. The reasons therefore are manifold, id., 356 U.S. at page 682, 78 S.Ct. at page 986, and are compelling when viewed in the light of the history and modus operandi of the grand jury. Its establishment in the Constitution ‘as the sole method for preferring charges in serious criminal cases’ indeed ‘shows the high place it [holds] as an' instrument of justice.’ Costello v. United States, 1956, 350 U.S. 359, 362, 76 S.Ct. 406, 408, 100 L.Ed. 397. Ever since this action by the Fathers, the American grand jury, like that of England, ‘has convened as a body of laymen, free from technical rules, acting in secret, pledged to indict no one because of prejudice and to free no one because of special favor.’ Ibid. Indeed, indictments may be returned on hearsay, or for that matter, even on the knowledge of the grand jurors themselves. Id., 350 U.S. *287at pages 362, 363, 76 S.Ct. at pages 408, 409. To make public any part of its proceedings would inevitably detract from its efficacy. Grand jurors would not act with that independence required of accusatory and inquisitorial body. Moreover, not only would the participation of the jurors be curtailed, but testimony would be parsimonious if each witness knew that his testimony would soon be in the hands of the accused.” The court held that disclosure may be made when “a particularized need” is shown which outweighs the policy of secrecy. This opinion is especially significant in view of the supposedly liberal practice of the Federal Courts in this regard, based on Rule 6(e) of the Federal Rules of Criminal Procedure. And see, also, United States v. Procter & Gamble, 1958, 356 U.S. 677, 78 S.Ct. 983, 2 L.Ed.2d 1077. When the public generally comes to know of the presently announced rule of disclosure, that knowledge will, in my opinion, tend to affect adversely (rightfully or wrongfully) the freedom with which witnesses testify before a grand jury. It is my view that in the ordinary criminal case it is sufficient that the law furnishes to an accused the names of the State’s witnesses (§ 545.070), and grants to him the full right to take depositions, certainly in the absence of a more compelling and “particularized” necessity than is shown here.
It has been authoritatively stated that the right to inspect the minutes may only be granted where it is sought in order to enable an accused to move to dismiss the indictment. 23 C.J.S. Criminal Law § 956, pp. 266-267; In re Martin, 170 Misc. 919, 11 N.Y.S.2d 607, 609; People v. Macner, 171 Misc. 720, 13 N.Y.S.2d 451, 454. And, similarly, that it is not to be granted to enable a defendant to prepare for trial, nor for impeachment purposes. 23 C.J.S. Criminal Law § 956, p. 267. It would seem that such permission is ordinarily not to be granted for mere discovery, although the contrary may be indicated in United States v. Procter & Gamble, supra. Certainly, the mere fact that depositions might thereby be obviated is a wholly insufficient reason, actually sounding more like a mere “excuse” to probe. Our statute on the production of documents for discovery purposes (§ 510.030) is part of our Code of Civil Procedure; Criminal Rule 25.19, 42 V.A.M.S., dealing with subpoenas duces tecum and the production and inspection of books and papers has been held not to be intended as a rule of discovery. State ex rel. Phelps v. McQueen, Mo., Banc, 296 S.W.2d 85, 89. The respondent has filed here with his suggestions the deposition of the acting foreman of the grand jury purporting to show illegal and extraneous activities on his part, and the defendant claims that unauthorized persons were present before the grand jury. These things, if true, can be shown by methods other than an inspection of the minutes (State v. Grady, 84 Mo. 220, 224), as indeed the defendant has already recognized by the taking of one deposition. As concerns the sufficiency of the evidence before the grand jury (its insufficiency being also advanced), our courts have declined to permit a review by the courts. State v. Grady, 84 Mo. 220, 224; State v. Shawley, 334 Mo. 352, 67 S.W.2d 74, 82. The only question is “whether they had before them any evidence at all.” Grady, Shawley, supra. In this case no one could conclude that no evidence was presented, and there is no possibility of illegality on that ground. To permit a review here on the sufficiency of the evidence, would, as stated in both of the cases last cited, make “the court * * * the tribunal to indict as well as the tribunal to try the case.” See, also, United States v. Herzig, D.C., 26 F.2d 487, where the court said, loe. cit. 488: “I think it is well settled in this circuit that courts will not sit in review of proceedings before the grand jury, to determine whether or not the grand jury acted on competent evidence. Kastel v. United States, 2 Cir., 23 F.2d 156.” The promiscuous inspections of grand jury transcripts, which I think will result from this ruling, may well necessitate a pre-trial hearing in substantially every case prose*288cuted by indictment, and the court will there be required at least to review the transcript of the grand jury evidence; if it does not presume to determine the sufficiency of the evidence, it will probably be asked to rule whether there was any evidence on the essential elements of the State’s case. This is not an end greatly to be desired.
It may also be noted that the principal opinion suggests no guides or standards for the trial court in the exercise of its discretion. Perhaps it may not do so in prohibition, and perhaps no precise standards can be fixed; we may ask, however, in order to pose the problem: is the matter to be ruled on the fact that the defendant is poor and cannot afford depositions? Shall it depend upon the number of witnesses heard, or upon the nature, seriousness, or complexity of the criminal charge, or upon the fact that defendant himself did or did not testify before the grand jury? Shall transcripts be furnished in every case where the accused merely alleges some illegal procedure in the grand jury process? We may rely, theoretically at least, upon the exercise of a sound discretion, but it seems to me that the ruling here may well be taken as a mandate that the trial courts should grant inspections in substantially all criminal cases prosecuted by indictments. If so, the grand jury function will be irreparably impaired, and perhaps should be abolished, in so far as it is an instrument for the making of criminal accusations. Some seem to regard it now as virtually useless. Blake v. State, 54 Okl.Cr. 62, 14 P.2d 240.
If a literal stenographic transcript of the testimony of a defendant and of the witnesses endorsed on the indictment is furnished to the defendant it is most likely, and indeed almost certain, that it will contain colloquies, interrogations and remarks by grand jury members and expressions of their opinions, any and all of which would violate, directly or indirectly, the prohibitions of § 540.310. Some measure of prevention might be attained if the trial judge should completely “censor” such a transcript. The remark of Mr. Justice Brennan, dissenting in Pittsburgh Plate Glass Co. v. United States, 79 S.Ct. loc. cit. 1245, supra, that “the names of the grand jurors asking the questions can be excised,” does not impress me as an effective cure. Grand jury proceedings are often conducted somewhat loosely, according to judicial standards, and not under the strict evidentiary procedure of trials; thus, it may well prove impossible in many instances to furnish a complete transcript of the required testimony without including matters which are thus forbidden. At best, the censorship would impose an enormous burden on the trial courts. The principal opinion seems to recognize that nothing should be furnished which would constitute “testimony not admissible in evidence.” The elimination of that alone would often necessitate a sort of ex parte “pre-trial,” but not a “hearing,” for no one would he heard.
Then, too, it appears that the censoring of the transcript, or excising of certain portions, would involve an exercise of discretion by the trial court which the defendant might be entitled to have reviewed on appeal after conviction. This leads to the question: could the defendant properly present such a point to the appellate court if he did not have access to the entire transcript ? He would have the burden of demonstrating error. On the other hand the Supreme Court could not arbitrarily deny a review of the trial court’s discretion by rule or otherwise, and thus make the action of the trial court conclusive, since this would be a limitation on the right of appeal, a thing prohibited by the constitutional grant of rule-making power. See Art. V, Sec. 5, V.A.M.S.Const. I do not think we should take this step unless we are prepared to go all the way.
We need not, and probably may not, say here just where the line should be drawn in releasing or not releasing grand jury minutes and transcripts. The ultimate question *289always is whether the ends of justice will he furthered by the requested disclosure. This involves not only the rights of the accused, but the rights and interest of the public in the administration of the criminal laws. These considerations must be balanced against each other. I am convinced that there is no showing here of such an impelling and necessitous right in this defendant as to justify the resulting jeopardy to the public interest, or even such as reaches the point where the court may exercise its discretion. A contrary situation may be seen in State ex inf. Dalton v. Moody, Mo., 325 S.W.2d 21, decided here on June 8, 1959, where the grand jury secrecy was relinquished in a quo warranto proceeding for the ouster of a prosecuting attorney; there, the very charge was of misconduct in connection with grand jury proceedings and indictments. There was no other method of getting at the truth in a matter of public interest. See, also, generally The Matter of Attorney-General, 160 Misc. 533, 291 N.Y.S. 5; In re Martin, 170 Misc. 919, 11 N.Y.S.2d 607. A limited disclosure may sometimes be proper for the protection of private rights. Mannon v. Frick, 365 Mo. 1203, 295 S.W.2d 158. And there may be instances, as in indictments for perjury before a grand jury, where for a full understanding of the background of the charge and to protect fundamental rights of an accused he should be furnished a transcript of his own testimony. State v. Brinkley, 354 Mo. 337, 189 S.W.2d 314, 335; United States v. Remington, 2 Cir., 191 F.2d 246, 250, 251. Even there the danger of releasing forbidden opinions, expressions and conclusions may be great. In these present cases the defendant has made no showing of the necessity of a transcript of his own testimony as distinguished from that of the witnesses generally. The occasion for any requested inspection should be compelling and specific and the showing must be sound; at the least, it should consist of something more than the desire to “fish” in the pool of grand jury evidence in the hope of finding impeaching material to be used in subsequent cross-examination.
In my view there has been no such showing of “particularized need” or of any compelling necessity for the protection of fundamental rights, as to reach the place where the court might exercise a discretion in the premises. I would make our rule in prohibition absolute.
I respectfully dissent.