On Motion for Rehearing
PER CURIAM.In its motion for rehearing and suggestions in support relator assumes we *290held that defendant was entitled to a discovery of the evidence before the grand jury on the showing made by him. We did not so hold nor did we hold that respondent did not abuse his discretion in permitting inspection of the entire transcript of the testimony of the witnesses endorsed on the indictments against him. We decided only that respondent had jurisdiction to exercise his discretion and decide whether to make that part of the order and therefore we could not prevent him from doing so- by prohibition. We did prohibit enforcement of the part of the order allowing inspection of anything more than the testimony of witnesses, as being beyond respondent’s jurisdiction; and it is our view that a new order should be made limiting inspection to the testimony of witnesses only and to such parts of the transcript of their tes-imony as would be admissible in evidence and be necessary to meet the ends of justice under all the circumstances shown. Nevertheless, we cannot control respondent’s discretion, nor dictate how he may exercise it, in a proceeding in prohibition. However, we do agree with relator that this matter should be regulated by a rule promulgated under our rule making power (Sec. 5, Art. V, Const. V.A.M.S.) to provide guides and standards and we have concurrently herewith adopted Rule 24.24, 42 V.A.M.S., for this purpose.
Relator’s main contention on rehearing is that we have failed to consider relator’s point IA, namely, that there is no provision either in the common law, statutes or Supreme Court rules authorizing the court’s order and that respondent was therefore without jurisdiction to make it. We did consider it and held there was no authority for such a broad order as respondent made and prohibited its enforcement but held that he had discretion to make certain parts of his order. Relator, however, contends that, even as to these parts, we have allowed an order for inspection for the purpose of discovery of evidence and that this is in conflict with our ruling in State ex rel. Phelps v. McQueen, Mo.Supp., 296 S.W.2d 85, 89. In the McQueen case, we were construing our Rule 25.19 and held this was not a rule of discovery but that its purpose was “to enforce production of documents or objects at the trial that contain evidence material and relevant to the issues and to require prior production and inspection of such records or objects if prior production and inspection will expedite the trial”; and that the trial court was without jurisdiction “to make an order to produce for inspection in the absence of good cause shown, which should appear from the motion, the evidence or admissions of the parties that such books, papers, records and documents contain evidence that is relevant and material to the issues.” However, the basis of our ruling therein was that the order and subpoena therein, which was to produce a great mass of private records, were clearly for the purpose of discovery, showed the immateriality of much of it, and were “illegal, oppressive, violative of fundamental rights of those against whom they are directed and, under the circumstances shown herein, constitute an excessive exercise of respondent’s jurisdiction.” Thus the order in that case violated fundamental private rights, which is not true in this case, and that distinguishes the McQueen case from this one. The ruling in the McQueen case was in accord with our ruling in State v. Hinojosa, Mo.Sup., 242 S.W.2d 1, 6, that: “The court would have had no authority to order the production of irrelevant and immaterial matter not admissible in evidence, and this is true even though such matters might aid in the preparation for trial.” In accordance with these cases, we hold that inspection of a grand jury transcript should not be permitted for purposes of discovery or as a substitute for taking depositions of witnesses endorsed on an indictment but only when and to the extent that is shown to be necessary to meet the ends of justice.
However, as held in the McQueen case (296 S.W.2d loe. cit. 89), relator-had the burden to show that respondent exceeded his jurisdiction in this respect. In this *291case, defendant was indicted for perjury committed before the grand jury and perjury is one of the matters about which Sec. 540.300 provides even grand jurors may be required to testify. The other indictment was for soliciting a bribe for preventing investigation of an alleged crime which the grand jury was investigating and the perjury was alleged to be in defendant’s testimony before the grand jury in connection with its investigation of the bribery charge. The record before us does not indicate the circumstances under which defendant testified before the grand jury, or why he did so, when he could not have been compelled to do so. These indictments and circumstances were before respondent and were the basis of his order as shown by his statement of his reasons. Defendant’s own testimony before the grand jury certainly was not irrelevant and immaterial matter because it was the very basis of the charge against him. It does not specifically appear what the testimony was of the five .witnesses endorsed on this indictment, or what showing was made about it to the trial court, but all of them were also witnesses endorsed on the bribery indictment. It does appear from the deposition of one of the grand jurors that one of these witnesses was the man from whom it was claimed defendant had solicited the bribe charged. This case is similar to State ex inf. Dalton v. Moody, Mo., 325 S.W.2d 21, in that it also concerns misconduct of ■ a prosecuting attorney (in this case an assistant prosecuting attorney) and that this misconduct charged was in a matter the grand jury was investigating. Under the circumstances, we cannot hold that respondent had no jurisdiction to permit inspection of any part of the grand jury transcript. Nevertheless, his order may be too broad not only in the respects held in the opinion and prohibited but also in allowing inspection of all of the testimony of all of the witnesses in both cases. Our ruling did not mean that anyone indicted is entitled to see all the testimony of all witnesses before the grand jury, even if it is all material and relevant, and it might well be an abuse of discretion to permit it.
Our view is that a new order should be made to comply with our ruling to carefully limit inspection to such parts of the transcript of the testimony as would be relevant and material at the trial; and that the suggestion in the separate concurring opinion of Dalton, J., should be followed for respondent to review the exercise of discretion involved so as to require disclosure only of such parts of the transcript of the testimony as to which inspection may-be deemed essential to meet the ends of justice.
The motion for rehearing is overruled.
All concur except EAGER and STORCKMAN, JJ., who dissent.