dissenting. There is not the slightest hint in the grand jury report, the majority opinion, or this dissent that appellant committed any criminal act. That is not the issue presented on this appeal. The question before us is whether the report of a grand jury may be expunged because it is critical of a public official.
The grand jury is one of the few remaining parts of our criminal justice system were non-lawyer citizens participate. I fear the opinion in this case will further diminish the role of the lay citizens in the court system. It was the people who granted powers to the legislative, executive and judicial departments in the first place. Already some courts are using six member juries to try civil cases. Seldom is a grand jury even called, and now if its report is not complimentary to public officials, the report will be expunged at the request of the offended party. Those charged with criminal acts have long sought, usually without success, to be able just to read the minutes of grand juries. We have said they are not entitled to see the records of the grand jury. Arnold v. State, 179 Ark. 1066, 20 S.W.2d 189 (1929).
Since 1871, grand juries have been charged with the following oath [Ark. Stat. Ann. § 43-904 (Repl. 1977)]:
Saving yourselves and fellow jurors, you do swear that you will diligently inquire of, and present all treasons, felonies, misdemeanors and breaches of the penal laws over which you have jurisdiction, of which you have knowledge or may receive information.
Arkansas Stat. Ann. § 43-905 provides that grand juries keep minutes of their proceedings. The next statute (§ 43-906) authorizes them to report “the minutes of the proceedings and evidence so kept” to the prosecuting attorney. One of the chief statutes relating to the duties of the grand jury is Ark. Stat. Ann. § 43-907 which reads as follows:
The grand jury must inquire — First. Into the case of every person imprisoned in the county jail, or on bail, to answer a criminal charge in that court, and who is not indicted. Second. Into the condition and management of the public prisons of the county. Third. Into the wilful and corrupt misconduct in office of public officers of every description in the county.
Arkansas Stat. Ann. § 43-934 authorizes special grand juries and gives them the same powers a regular grand jury possesses. Circuit judges are authorized by law to appoint grand juries. Rowland v. State, 213 Ark. 780, 213 S.W.2d 370 (1948). Since the matter is discretionary with the circuit judge, we have no right to overrule unless there is an abuse of discretion. We have throughout the history of this court been tolerant of the actions of the judicial and other branches of government. It is right that we should be tolerant.
The majority rely heavily upon the case of Ex Parte Faulkner and Coleman, 221 Ark. 37, 251 S.W.2d 822 (1952). However, the opinion fails to quote from that part of the opinion which states:
In Ex parte Cook, 199 Ark. 1187, 137 S.W.2d 248, we held that it was within the trial court’s discretion to receive or reject a grand jury’s report criticizing the former county judge’s administration of county affairs where the investigation was at his request and the report did not amount to charges or accusations of criminal offenses.
The majority opinion correctly holds that as in Faulkner, supra, it has long been the custom and practice for grand juries to make written reports to the appointing courts. I agree and further state such practice should continue. The grand jury did not instigate this investigation as stated in the majority opinion. It appears the majority opinion holds that if a grand jury does not indict, it should make only complimentary reports. In Faulkner the court had before it the objectionable matter. In the present case we do not have either the report or all of that part of the report concerning the appellant. The majority is expunging parts of the grand jury report that none of us has seen. From the record it appears that the special grand jury was specifically charged with looking into the Alice McArthur murder. The small part of the report we have is squarely on that subject. In Faulkner the petitioners were accused of criminal acts and later indicted by the grand jury. The appellant had no right to cross examine any witness nór to face his accusers. Neither does anyone else being investigated by a grand jury. Why the offense at being treated as all others who are investigated by grand juries? The public and press have as much leeway in the present case as they have in any other case reported by any grand jury. This grand jury was mandated by the court and the laws of the state of Arkansas to look into this matter and all other matters investigated by them. The jury was also extremely critical of the Pulaski County Sheriff’s Department. Why should we not sua sponte expunge that section while we are reviewing the action of the grand jury? Also, why should we not expunge the record for those who are indicted but are never tried or are acquitted?
The Faulkner court relied on In re Jones, 101 App. Div. 55, 92 N.Y.S. 275, as precedent for expunging the report of a grand jury. In Jones the New York court refused to expunge a grand jury report which was critical of public officials for failure to properly perform their duties. There was neither indictment nor grounds for indictment in Jones. The question presented in Faulkner was stated by the court: “The question then arises as to the right of petitioners to expunge a grand jury report containing findings which would have warranted their indictment for slander where no such indictment is returned or intended.” Therefore, Faulkner does not stand for the proposition for which it is cited in the majority opinion. In the present case the jury did not accuse the appellant of any criminal act. Whether we follow the majority or minority rule is not the real question. What we need to follow is the right rule; the one which employs common sense. The Faulkner opinion did not reject the holding in Jones that expungment of critical grand jury reports is discretionary with the impaneling judge. It only held that a person has the right to have accusations expunged from a grand jury report which makes criminal accusations but fails to indict the person about whom the remarks are made. The Supreme Court of Arkansas has never held that a public official has a right to expunge a grand j ury report which is critical but which does not allege criminal conduct. This court has held in Ex Parte Cook, 199 Ark. 1187, 137 S.W.2d 248 (1940) and Faulkner that a report of a grand jury incidentally pointing out that certain public officials are responsible for acts or omissions or neglect of duty, not amounting to criminal acts, is not subject to being expunged. The most that can be said is that such matters are left to the discretion of the impaneling judge. We have even held that an indictment cannot be quashed or set aside because of illegal testimony or want of any testimony at all. State v. Fox, 122 Ark. 197, 182 S.W. 906 (1916).
Grand juries are made up of reputable citizens residing in the county. Thus they become the voice and conscience of the county. It is not their privilege only, but also their duty, to speak out on matters of public concern and interest. We should not quiet their voice or still their conscience.
Hickman, J., joins in this dissent.