dissenting. I agree that prosecuting attorneys have not been granted the rights and powers of grand juries, but I do not see that it is actually necessary to reach that question in this case.
As pointed out in a concurring opinion by Mr. Justice Fogleman, the constitutional right to counsel before trial is based on protection against self-incrimination during the investigative process. I would quickly agree that, if the prosecuting attorney had subpoenaed these witnesses for the investigation of a murder, larceny, arr son, or any other type of felony case, except cm election contest, they would be entitled to an attorney who could advise them to refuse to answer any question that might involve them in the crime investigated.1 However, Article 3, Section 9, of the Arkansas Constitution provides as follows:
“In trials of contested elections and in proceedings for the investigation of elections2 no person shall be permitted to withhold his testimony on the ground that it may incriminate himself or subject him to public infamy; but such testimony shall not be used against him in any judicial proceeding, except for perjury in giving such testimony. ’ ’
Obviously, if his testimony cannot be used against him, there is no reason why a witness should not answer questions propounded.
This matter reached the trial court because the witnesses refused to answer, and, in my view, the general powers granted to a Circuit Court authorize the assistance of that court in carrying out the constitutional and statutory provisions of our law.
I, therefore, respectfully dissent.
I am authorized to state that Justice Byrd joins in this dissent.
This, to me, is the main difference between an investigation conducted by a prosetouting attorney, and one conducted by a grand jury. In the latter instance, no witness is entitled to have an attorney present, irrespective of the charge being investigated.
Emphasis supplied.