Opinion of the court bv
JUDGE PAYNTER —Reversing.
By this action the appellee sought to recover damages from the appellant, because: (1) The appellant falsely and maliciously exhibited to the members of the Henderson county grand jury a certain letter, which purported to have been written by the plaintiff, but which was forged, containing false and scandalous charges against him. (2) That before the members of the aforesaid grand jury he charged that the appellee was trying to have appellant indicted by jJerjured testimony, and that he had sworn falsely in a certain suit pending 'between the parties. It is averred in the petition that the' appellant had done these things voluntarily, and against the protest of the members of the grand jury; that the libelous publication and the false charges were not made with reference to anything under investigation before the grand jury. On trial of the case the appellee introduced as witnesses members of the grand jury, including himself, who was also a member of the grand jury, and was present when the alleged false charges were made. Some of the members of the grand jury testified that they did not remember *632whether or not the grand jury was in session at the time the statements were made, or whether the appellant was-■sworn to give testimony before the grand jury before they were made. Other members of the grand jury testified that the statements were made while the grand jury was in session; that the appellant was sworn before making them. Under this testimony it may be assumed that the ■evidence is uncontradicted that the grand jury was in session, and as such heard the false charges which the appellant made against the appellee. It. may be observed .at this point that the appellant was not summoned before the grand jury, and his appearance before it was voluntary, with the purpose of trying to prevent the returning of an .indictment against him which he claimed the appellee de,sired to procure. The question which invites our consideration is, were the members of the grand jury competent witnesses to prove what transpired before it? Independent of statutory regulation, courts in different States hold widely divergent views upon the question as to whether it is competent for members of a grand jury to testify as to what occurred in the grand-jury room. In some jurisdictions it is held that the oath of .secrecy which grand jurors take does not prevent the public or an individual from ■proving by them in a court of justice what passed before the grand jury, where, after the purpose of secrecy has been effected, it becomes necessary to the attainment of justice that the conduct and testimony of prosecutors and ■witnesses shall be inquired into. In some jurisdictions it' is held to be in the discretion of the court whether or not .a grand juror shall be examined as a witness touching transactions before the grand jury. In other jurisdictions, it is. held that witnesses before a grand jury can not invoke the rule .of .secrecy after -the investigation of *633the grand jury has ceased. Again, other courts hold that, where statutes have been enacted prescribing the instances-in which the grand jurors may testify as to what occurred, before them, such statutes are exclusive, and that grand jurors may testify in no other than in the cases prescribed. The latter is the view which has been taken by this court. Section 113, Cr. Code Prac., reads as follows: “A member' of the grand jury may, however, be required by a court to-disclose the testimony of a witness examined before the grand jury, for the purpose of ascertaining its consistency with the testimony given by the witness on the trial, or for the purpose of proceeding against the witness for perjury (or false swearing) in his testimony, or upon the trial of a. prosecution of the witness for perjury (or false swearing); and it shall be the duty of the foreman of the grand jury to communicate to the attorney for. the Commonwealth, when requested, the substance of the testimony before them.” In Com. v. Scowden, 92 Ky., 120, (13 R., 404) (17 S. W., 205), the question arose as to whether upon the trial of one for false swearing before a grand jury the grand juror can testify to what the accused swore before the the grand jury. The court held that it was incompetent,, because the Criminal Code of Practice did not provide that a member of a grand jury could give evidence as to what a witness may have testified to before the grand jury on the trial of an indictment in which the witness was charged with having sworn falsely in giving testimony before the-grand jury. The court said: “The offense of false swearing is a statutory one, and distinct from that of perjury, which existed at common law. The two have no connection.. The former is not mentioned by common-law writers, and the elements of the two are different. The charge of perjury does not embrace that of false swearing. The Code *634has declared that what the accused testified before the grand jury may be proven against him upon a trial for perjury, but it has not said that this may be done upon his trial for false swearing. The latter offense existed under our law when this provision of the Code was adopted; but the Legislature, for some reason, did not see fit to embrace it. ‘Etvpressio tmius est ecoélusio alteriusSubsequently the Legislature amended the Criminal Code. of Practice (Acts 1891-93, p. 11), making grand jurors competent to testify, on the trial of a person indicted for false swearing, as to what he may have said as a witness before the grand jury. To follow the reasoning of the court in that case necessarily brings us -to the conclusion that grand jurors are incompetent to testify as to what occurred before that body. The section of the Code does not say that they shall not be competent as witpesses in a case like this, or in a civil action growing out of the occurrences before the grand jury; yet the-fact that the Legislature specified the instances in which grand jurors could testify excludes the idea that it intended that they should be competent as to instances other than those specified.
The judgment is reversed for proceedings consistent with this opinion.
Chief Justice Unify, dissents.Petition for rehearing by appellee overruled.-