dissenting. Over objection and exceptions, the state was permitted to introduce at the trial in circuit court the testimony of the defendant taken before the prosecuting attorney. The prosecuting attorney was in a position to argue it to the jury as the sworn testimony of the defendant, although the defendant did not testify at the trial. In my opinion this was testimony taken by the prosecuting attorney in accordance with the statute authorizing the taking of such testimony. Ark. Stat. § 43-801 provides: ‘ ‘ The prosecuting attorneys and their deputies ... shall have authority to administer oaths for the purpose of taking the testimony of witnesses subpoenaed before them. Such oaths, when administered by the prosecuting attorney or his deputy, shall have the same effect as if administered by the foreman of the grand jury.” The accused was sworn to tell the truth, the whole truth, and nothing but the truth; this was done in the sheriff’s office before any charge was ever filed against the defendant. At the time of the trial of the case in circuit court the state proved by the sheriff that the oath was administered by the prosecuting attorney to the accused at the time his testimony was taken. Such evidence of the administration of the oath could have been introduced only for the purpose of adding verity to the testimony of the defendant. The prosecuting attorney does not have authority to administer oaths generally; there is only one instance in which he may legally administer an oath, and that is when he is taking testimony from a witness as authorized by Ark. Stat. § 43-801. He has no authority to administer an oath to one giving a confession. The statute is plain and explicit that “such oath when administered by the prosecuting attorney or his deputy shall have the same effect as if administered by the foreman of the grand jury.” It necessarily follows that the question is, what would be the effect of the defendant being brought before the grand jury in custody of the sheriff, placed under oath by the foreman of the grand jury, and his testimony taken in those circumstances?
The Supreme Court of the United States said in Counselman v. Hitchcock, 142 U. S. 547, 12 S. Ct. 195, 35 L. Ed. 1110, “It follows that any evidence which might have been obtained from Counselman by means of his examination before the grand jury could not be given in evidence or used against him or his property in any court of the United States, in any criminal proceeding, or for the enforcement of any penalty or forfeiture.”
In State v. Rixon, 180 Minn. 573, 231 N. W. 217, 68 A. L. R. 1501, (Minnesota), it is said: “It is settled law in this state that, where a grand jury by subpoena compels the accused to attend and testify concerning his connection with the crime under investigation, an indictment returned by such jury against such accused will be quashed, because in violation of our constitutional guarantee that no person ‘shall be compelled in any criminal case to be a witness against himself’.”
In the case at bar the defendant was in custody, accused of the crime. His part in the crime, along with the part played by John Stanley, who was also involved in the bank robbery, was being investigated. It seems to be the rule that if the testimony given by the witness before the grand jury is upon a general investigation, then such testimony can be the basis of an indictment; but if on the other hand the investigation before the grand jury is a proceeding against the defendant, his testimony can not be used as a basis for the indictment, much less used later on in the trial of the case in circuit court.
In People v. Bermel, 71 Misc. 356, 128 N. Y. Sup. 524, the court said: “But where, on the other hand, the investigation before the grand jury is a proceeding against him, or, being ostensibly a general investigation, is, in fact, as shown by the circumstances and evidence, a procoeding against him, then the defendant’s constitutional right is violated if he he subpoenaed before the grand jury, sworn and questioned, though he makes no claim of privilege or exemption. Briefly stated, if the person testifying is a mere witness, he must claim his privilege on the ground that his answers will incriminate him; whereas, if he be in fact the party proceeded against, he cannot be subpoenaed and sworn, even though he claim no privilege.”
We have found no case holding that a defendant can be brought before the grand jury in a proceeding directed against him, his testimony taken, and later his testimony be used against him in the trial of the case. In U. S. v. Bell., 81 Fed. 830, it is said in speaking of the testimony taken before a pension examiner: “It will not do to rely upon the theory that every citizen can take care of himself in such a purely inquisitorial examination. It is not like the examination that takes place in open court, in the presence of counsel and the bar, and before judges who are in the habit of exercising the power, if not following the duty, of warning every witness against the danger Avhich confronts him Avhen he is called upon to testify about incriminating matters. And, owing to this particular nature and character of the examination itself, it needs more Avatching to prevent an encroachment upon the citizen’s constitutional privileges.”
In my opinion if the defendant here had been taken by the sheriff to the grand jury room, sworn by the foreman of the grand jury, and testified as he did before the prosecuting attorney, such testimony could not have been used against him in the trial in the circuit court. The statute giving the prosecutor the authority to administer oaths and to take the testimony of Avitnesses [Ark. Stat. § 43-801] in plain language states that such oath when administered by the prosecuting attorney shall have the same effect as if administered by the foreman of the grand jury. Of course, if the defendant at his own request is permitted to appear before the grand jury and testify, as was the case in Bratton v. State, 213 Ark. 537, 211 S. W. 2d 428, and Eastling v. State, 69 Ark. 189, 62 S. W. 584, such testimony may be used by the state. In the Bratton case it is said: “It is undisputed that the defendant not only voluntarily appeared before the jury, but solicited the opportunity to do so.” In the Eastling ease, the defendant also asked for permission to testify. Therefore the Bratton and Eastling cases are not in point with the ease at bar. No one contends here that this defendant voluntarily appeared in the sheriff’s office and requested an opportunity to make a statement to the prosecuting attorney; in fact the defendant was under arrest in charge of the sheriff.
The majority cite Harshaw v. State, 94 Ark. 343, 127 S. W. 745, and appear to hold that a defendant who has not voluntarily taken the witness stand can be sworn by a justice of the peace while acting in his official capacity as such, and whatever statements are thus extracted from the defendant can later be used against him in a trial in circuit court. As I read the Harshaw case, the point involved in the case at bar was not presented to the court in that case. In the Harshaw case it is not shown that the defendant did not voluntarily take the witness stand in the hearing before the justice of the peace. In fact, it is not shown that the justice of the peace was acting as such at the time of taking the testimony of the defendant. In the Harshaw case it is merely said: “In addition appellant is shown to have made a free and voluntary confession, which was reduced to writing by a justice of the peace and sworn to by appellant ... as the confession is shown to have been made freely and voluntarily, it was admissible.” No circumstances in relation to obtaining the confession are shown. This court merely stated, “as the confession is shown to have been freely and voluntarily made, it is admissible.”
The majority also cites Dunham v. State, 207 Ark. 472, 181 S. W. 2d 242. There testimony freely and voluntarily given by one at a coroner’s inquest was used at the trial of such person in circuit court. The opinion specifically points out that the accused was warned that she did not have to testify. In the case at bar the defendant was not warned that he did not have to testify. The Dunham case is merely in line with Bratton v. State, supra, and Eastling v. State, supra. Moreover, it is pointed out in the Dunham case that no one except the defendant on trial was concerned with the commission of the offense, and therefore that § 3957 of Pope’s Digest [Ark. Stat. § 43-915] is not applicable.
In 27 Am. Jur. 706 it is said: “Although informations are, of course, not the creatures of grand juries, but of prosecuting attorneys, they are, in general, governed by, the saíne rules as indictments in respect of the effect of self-incriminating testimony by the accused on the validity of the information. It has been held, in effect, that an information is invalid where it is based upon involuntary self-incriminating testimony. ”
The rule appears to be well established that if, at the time one is required to give testimony before a grand jury, he is not accused of the offense, then whatever he may say can be used as a basis for an indictment or may be used subsequently in the trial of the case. But on the other hand, if at the time of extracting such testimony from him, he is actually accused of the offense, then no testimony he gives can be used as' a basis for indictment or in the trial court. In Anno. Cas. 1914 C 418 C it is said: “There is, however, no difference in principle between a motion to quash an information based on self-incriminating evidence of the accused on a preliminary examination and a motion to quash an indictment which is based on testimony given by the indicted person before the grand jury. Motions of the latter kind have been under consideration in a number of cases. It was held in State v. Duncan, 78 Vt. 364, 63 A. 225, 6 Anno. Cas. 602,112 Am. St. Rep. 922, 4 L.R.A. (N.S.) 1144, that an indictment will not be quashed on the ground that the accused gave self-incriminating evidence before the grand jury, if he testified without claiming his constitutional privilege: and this is so though he was not cautioned before testifying, where it does not appear that at the time he was charged with or suspected of the crime named in the indictment. The law appears to be that where a person not charged with any criminal offense is required to appear before a grand jury and is there interrogated and testifies without objection, an indictment against him found on his own testimony is not invalid on the ground that such use of his testimony is a violation of the constitutional right that no person shall be compelled to testify against himself. On the other hand where a person in custody charged with crime is compelled to give testimony before the grand jury which is made the basis of an indictment against him, the indictment should be quashed. See the cases cited in the note to State v. Duncan, 6 Ann. Cas. 602. Several recent cases are to the same effect. State v. Bramlett, (Miss.) 47 So. 433; People v. Burke, 72 Misc. 336, 131 N. Y. S. 122; Commonwealth v. Bolger, 229 Pa. St. 597, 79 Atl. 113, 42 Pa. Super. Ct. 115. See also People v. Steinhardt, 47 Misc. 252, 93 N. Y. S. 1026; People v. Elite Distributing Co., 76 Misc. 577, 137 N. Y. S. 235.”
There is still another reason why the testimony given by the defendant Rowe before the prosecuting attorney was inadmissible in the trial. Ark. Stat. § 43-915 provides : “In all cases where two or more persons are jointly or otherwise concerned in the commission of any crime or misdemeanor, either of such persons may be sworn as a witness in relation to such crime or misdemeanor; but the testimony given by such witness shall in no instance be used against him in any criminal prosecution for the same offense.”
This point is controlled by two cases heretofore decided by this court. Lockett v. State, 145 Ark. 415, 224 S. W. 952, was a contempt proceeding; appellant Lockett had refused to answer questions before the grand jury on the ground that they might be incriminating to himself. In holding that he was guilty of contempt, this court said: “Appellant next insists that the judgment should be quashed because an answer to the question would incriminate him; fraudulently issuing assessment for the purpose of enabling parties to vote, if a crime, necessarily involved others in the crime. This being the case, no answer made by appellant could have been used against him in a criminal prosecution for the same offense. He was afforded ample protection under section 3087 of Kirby’s Digest.” [Ark. Stat. § 43-915.]
In the case at bar the record shows that one John Stanley was involved in the perpetration of the crime along with the defendant in this case. The record shows conclusively that they were both arrested at the same time and place on the same charge. Hence, according to Lockett v. State, supra, if the foreman of the grand jury administered an oath to this defendant and took his testimony, such testimony could not have been used against bim in the trial in the circuit court. Likewise the testimony taken from him by the prosecuting attorney could not be used against him in the circuit court. As heretofore pointed out, Ark. Stat. § 43-801 provides ‘ ‘ such oath when administered by the prosecuting attorney or his deputy shall have the same effect as if administered by the foreman of the grand jury”; and under the holding in the Lockett case such testimony could not be used against the defendant on trial in the circuit court.
In Marshall v. State, 84 Ark. 88, 104 S. W. 934, the defendant Marshall was charged alone in an indictment for the crimes of burglary and grand larceny. Marshall and two others were jointly concerned in the offense of burglary. Marshall alone had testified in the justice of the peace court and had confessed his own guilt and involved two others who were tried separately; but all were involved in the same offense. This court said: ‘ ‘ The ruling of the court in permitting the testimony of appellant, taken before the examining court, to be used against him on his present trial was in plain derogation of the above statute and was prejudicial error for which the judgment must be reversed and the cause remanded for a new trial.” The testimony of Marshall before the justice of the peace court was used in binding over to await the action of the grand jury the other two persons charged with the offense. It is not shown in the present case whether Rowe’s testimony before the prosecuting attorney was used as the basis of a felony information against John Stanley, but it could have been so used. There is no distinction between the Marshall case and the case at bar with the exception that in the Marshall case the testimony given by the defendant was before a justice of the peace whereas in the present case the testimony given by Rowe was before the prosecuting attorney after Rowe was sworn to tell the truth, the whole truth, and nothing but the truth.
In conclusion, it is my opinion that the testimony given by the defendant before the prosecuting attorney was inadmissible, first because such sworn testimony is only authorized by Ark. Stat. § 43-801; and according to the provisions of this statute the taking of testimony in the circumstances shown here is the same as if the testimony had been given before the grand jury; and according to the great weight of authority, if not all the authority, such testimony can not be used against the defendant in his trial in circuit court. Next, to use the testimony against the defendant in the trial court is in derogation óf his rights as set out in Ark. Stat. § 43-915 and specifically dealt with in Marshall v. State, supra. For these reasons I respectfully dissent.