specially concurring:
I agree -with the final conclusion of the opinion in this cause-but not with all that is said, .and the way it is said, with reference to attorney Browne acting as attorney for the State before the grand jury. That body is organized for the purpose of protecting citizens against unfounded accusations. The theory of the organization of the grand jury is that it is the best method by which persons accused of public offenses may be brought to trial and yet not be put to the expense and notoriety of a public trial unless the accusation is based upon something more than a mere suspicion. The general rule is that no person shall be required to answer for any of the higher crimes unless a grand jury, consisting of not less than sixteen nor more than twenty-three men selected from the body of the district, shall declare, after careful deliberation under the solemnity of an oath, that there is good reason for the accusation and trial. (2 Sawyer Cir." Ct. *667.) Neither the accused nor the accuser should, be permitted to be represented personally by counsel before the grand jury. (In re Gardiner, 64 N. Y. Supp. 760.) There should not only be no improper influence in the grand jury room, but in the investigation before that body there should be no opportunity for such improper influence to be exercised. (Lewis v. Commissioners, 74 N. C. 194.) In some States it is held that the mere presence of a stenographer in the grand jury room for the purpose of taking shorthand notes, or the presence of a witness who is not testifying at the time while another witness is testifying, is reversible error. (State v. Salmon, 216 Mo. 466.) The State’s attorney of the proper county in this State is the legal assistant of the grand jury, and he, or his representative properly selected according to law, is the only one who ought to appear in the grand jury room to assist in the work of that body. (Hurd’s Stat. 1917, chap. 14, par. 5, p.- 121.) Such an officer is acting" in a quasi judicial capacity, representing public justice, and should stand indifferent as between the accused and any private interest. (People v. Gerold, 265 Ill. 448.) He may be present to give advice, to question the witnesses, to draw such bills as the jurors are prepared to find and to give such general instructions as to the law as occasion may require, but he must not attempt to influence or direct the actions of the grand jury in respect to their findings nor be present when they are deliberating on the evidence or when their vote is taken. (Gitchell v. People, 146 Ill. 175.) Except as authorized by law he should not delegate the functions or responsibilities of his office to any other person. McGarrah v. State, 10 Okla. Crim. 21.
In this State the number of assistants to the State’s attorney must be determined by the county board, and then they can be legally appointed by the State’s attorney. The county board of LaSalle county, where this indictment was voted by the grand jury, had theretofore authorized the State’s attorney of that county to appoint one assistant. This assistant had been appointed and was acting as such at the time this indictment was voted. Apparently, however, such assistant had nothing to do with this investigation before the grand jury. If the State’s attorney for any reason needs special assistants other than those authorized to be appointed, under the statute, by the authority of the county board, the court has the power to appoint a special assistant. (Lavin v. Cook County Comrs. 245 Ill. 496.) Attorney Browne’s appointment was neither authorized by the county board, nor sanctioned, directly or indirectly, by the trial court. He took no oath of office. It appears that the foreman of the grand jury specially requested that Browne be allowed to appear before that body and assist in the investigation. It also appears that Browne had been employed by some of the creditors of this bank, prior to the grand jury investigation, to examine into the civil liability of the bank and its officials, and by this private employment had become familiar with the business of the bank. Perhaps partly because of his knowledge thus obtained, some of the creditors desired him to assist in the criminal investigation and suggested to the State’s attorney his employment for that purpose. Before he accepted such employment Browne consulted with State’s attorney Wiley, of LaSalle county, and, apparently with the sanction of the State’s attorney, took charge of such investigation before the grand jury.
It is manifest from the record before us that Browne practically controlled the entire investigation and took entire charge of the presentation of the evidence before the grand jury. Neither the foreman of the grand jury, nor the grand jury itself, nor the trial judge, nor the State’s attorney, had any right to turn this investigation before the grand jury over to the creditors of the insolvent bank. While it is true that it is proper and legitimate for counsel to be employed to assist the State’s attorney in open court in the prosecution of a criminal charge and the accused can there be represented by counsel and everything is done in open court, yet even in the trial of a case in open court the State’s attorney should control the prosecution. It seems to me highly improper for counsel employed by private parties to prosecute a case to go into a grand jury room, where the accused cannot be heard and has no one representing him. The investigation before the grand jury should be performed' only by counsel who have been chosen, as required by law, to represent the public interests. (Hartgraves v. State, 5 Okla. Crim. 273; Wilson v. State, 70 Miss. 595.) To hold otherwise as a rule of law might subject innocent persons to vindictive persecution. No matter how honest and efficient the services of attorney Browne may have been, his full knowledge of the .case did not justify his substitution for the regular public official in the investigation before the grand jury. United States v. Rosenthal, 121 Fed. Rep. 862.
As stated in the opinion, objections which go to the mere form of the indictment on a writ of error should not be sustained for any matter not affecting the real merits of the offense charged in the indictment. If there were the slightest doubt of the clear guilt of each of the plaintiffs in error in this case this judgment ought not to stand because of the error committed in permitting .Browne to take control of the prosecution before the grand jury and on the" trial of the case. The practice followed in the investigation of this case in permitting private counsel to control, in effect, the investigation before the grand jury is not consonant with justice or the principles of personal liberty and should be strongly condemned.