concurring. I concur in the result but reach it in a different way.
I agree that Arkansas has not conferred upon prosecuting attorneys all the rights and powers of grand juries, but I think that it might constitutionally do so.
I cannot agree that a witness subpoenaed to testify before a prosecuting- attorney in a criminal investigation has any right, common law or constitutional, to have his attorney present in circumstances where, as here, he could not possibly incriminate himself. All of the holdings of the United States Supreme Court on the constitutional right to counsel before trial are based on protection against self-incrimination by in-custody interrogation. See, e.g., Miranda v. State of Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694, 10 A.L.R. 3d 974; Escobedo v. State of Illinois, 378 U.S. 478, 84 S. Ct. 1758, 12 L. Ed. 2d 977. There is no way these witnesses could incriminate themselves in this investigation of alleged election, law violations because of Art. 3, § 9 of the Arkansas Constitution:
“§ 9. Testimony in Election contest — (Self-incrimination. — In trials of contested elections and in proceedings for the investigation of elections 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. ’ ’
I find no authority for the statement in the majority opinion in regard to the right to counsel.
Nor do I fear abuse of powers by prosecuting attorneys. This court has always, in the absence of a showing to the contrary, presumed that officers would do their duty. Phillips v. Rothrock, 194 Ark. 945, 110 S.W. 2d 26; Jones v. Capers, 231 Ark. 870, 333 S. W. 2d 242.
I find nothing, however, which authorizes the circuit court to compel a witness to testify before a prosecuting attorney unless we say that the latter has all the powers of a grand jury. There is specific statutory authority for compelling a witness to testify before a grand jury in Ark. Stat. Ann. § 43-916 (Repl. 1964) and in all prosecutions, criminal or penal actions or proceedings in §43-2004, both being sections of our Criminal Code. The former cannot, under present statutes, be extended to cover investigations by the prosecuting attorney. The latter is not comprehensive enough to include investigations. Had it been, there would have been no necessity for § 43-916 to apply to witnesses before a grand jury.