I concur in the result reached by the opinion of Mr. Justice Burr, but ! do not wish even by silence to. appear to assent to the view that the depositions of witnesses in a preliminary , examination before a warrant is issued may be taken in public any more than they can be displayed to the public after they have been reduced to writing and signed.
Section 205 of the Code of Criminal Procedure provides that “ The magistrate or his clerk must keep the depositions taken on the information or on the examination, and the statement of the defendant, if any, until they are returned to the proper court; and must not permit them to be inspected by any person, except a judge of a court having jurisdiction of the offense, the Attorney-General, the district attorney of the county, the defendant and his counsel, and the complainant and his counsel.”
It seems to me that this provision could have had no possible *831purpose other than to secure secrecy for .the preliminary proceedings on an information. When it is considered that at such stage of the proceedings no one has been charged with the commission of a crime and that it may be that as a result of the inquiry no one will be so charged, the importance of secrecy is just as manifest as in the case of proceedings before a grand jury. The relators in this case were subjected to the humiliation of a public exploitation of their private affairs just upon, the eve of an election in which the ambitions perhaps of a lifetime for one of them were involved, before it was known whether or not there would he sufficient evidence even to hold them for a hearing. These depositions should have been taken in secret, or the evidence should have been presented to the grand jury in the first instance. There was in fact a grand jury in session at the time. I am unable to see the slightest benefit to be derived from, or any sensible reason for, this statute forbidding the inspection by any person of the depositions, if they are to be taken in public in the presence of newspaper reporters, perhaps for the very purpose of giving currency to them. If I am not" correct about this, what are the words “must not permit them to be inspected by any person” in the statute for ?
That there was no evidence on which to hold Cassidy is manifest. I think, however, that a prima facie case was made against Willett and Walter, and that the evidence against them should be submitted to a grand jury, and, as said in Commonwealth v. Ridgeway (2 Ashm. 259), “That respectable body are entirely independent of us; they can form their own views of the prosecutor’s case, and may, if their judgment so indicates, place the defendant on his trial,” or they may refuse to indict. That is all for the grand jury.
Hirschberg, J., concurred.
In the first and second cases order dismissing the writ and remanding the relator affirmed, without costs. In the third case order reversed, writ sustained and the relator discharged, without costs.