(specially concurring).
I concur in the result reached and in general with the reasoning of the foregoing opinion. I am not, however, able to reconcile the result reached with the decision of State v. Essman, 98 Ariz. 228, 403 P.2d 540 (1965). Essman holds that a conviction in a criminal action, after a regularly and properly conducted jury trial, must be reversed because of the refusal of the magistrate conducting the preliminary hearing to permit the defendant to call witnesses, “ * * * including police officers who saw appellant on the night of his wife’s death and whose testimony on cross examination might support the defense theory that the charge should be one other than murder.” (98 Ariz. at 231, 403 P.2d at 542.) If there were any other witnesses offered at the preliminary hearing, the Essman opinion does not indicate who they might have been nor the nature of their testimony. Presumably, the reversal is predicated upon the refusal of the justice of the peace to listen to the testimony of police officers called by the accused, without any offer of proof being made as to the nature of their testimony.
In supporting its conclusion that reversible error had been committed, the court quotes from Miller and Remington, Procedures Before Trial, 339 Annals of the American Academy of Political and Social Science 111, 122:
“ ‘ Although the formal purpose of the preliminary examination is to establish probable cause to hold the defendant for trial, its principal purpose in practice is to afford defense counsel an opportunity to learn the nature of the prosecutor’s case. . Experienced defense counsel will, therefore, typically request a preliminary examination even though they are certain the prosecution will establish probable cause to hold the defendant for trial.’ ”
98 Ariz. at 232, 403 P.2d at 542.
Also to support its ruling, our court cites State ex rel. Hanagan v. Armijo, 72 N.M. 50, 380 P.2d 196 (1963). In this decision, the Supreme Court of New Mexico holds that an accused at a preliminary hearing may subpoena and call up for examination “ * * * state’s witnesses * * * ”
(380 P.2d at 197.) The court states:
“After all, a defendant may not be denied the right to explain before a magistrate, if he so desires (People ex rel. Beamish v. Reynolds, Sup., 1914, 32 N.Y. Cr.R. 323, 155 N.Y.S. 121), and certainly he has the right to call whatever witnesses he wishes to perform the same purpose.” (Emphasis added)
380 P.2d at 199.
The holding and reasoning of Essman, considered together with our constitutional admonition against reversal for non-prejudicial error, Ariz.Const. Art. 6, § 27, indicate that there is a substantial right of pretrial discovery guaranteed in this state to a defendant charged with a felony by information.
If this is so, then the writer would believe it to be a violation of the equal protection clauses of both the state and the federal constitutions to deny a preliminary hearing to a person selected for prosecution by indictment. Years of trial practice have indicated to the writer that discovery is of the essence of successful advocacy. In civil actions, the outcome of trial is often determined by the thoroughness of pretrial discovery procedures. The writer has no reason to believe that a similar effect would not prevail in a criminal action.
There is no rule or statute which sets any standard for the county attorney to follow in determining which cases should be prosecuted by information and those which he may choose to lay before a' grand jury. There is no showing in the subject action why this particular defendant was singled *581out for grand jury indictment. Our Supreme Court has said that the purpose of the constitutional protection under consideration is to secure equality to all persons similarly situated and that legislative power is proscribed from making distinctions in rights between individuals unless there is a reasonable ground for classification. Valley National Bank of Phoenix v. Glover, 62 Ariz. 538, 159 P.2d 292 (1945); Schrey v. Allison Steel Mfg. Co., 75 Ariz. 282, 255 P.2d 604 (1953); Southwest Engineering Co. v. Ernst, 79 Ariz. 403, 291 P.2d 764 (1955); Begay v. Sawtelle, 53 Ariz. 304, 88 P.2d 999 (1939).
As to so substantial a right as that of full discovery at a preliminary hearing, the writer would conceive it to be beyond the power of the legislature, and of our Supreme Court by rules of criminal procedure, to vest the absolute discretion in the county attorney to determine whether an accused will or will not have such a right.
A related problem was presented to the Florida Supreme Court in the case of Mitchell v. State, 157 Fla. 121, 25 So.2d 73 (1946). The Florida legislature had provided a two year statute of limitation for all offenses, whether prosecuted by indictment or information, except offenses punishable by death, as to which there was no statute of limitation. The legislature had further provided that if the prosecution was by an indictment charging an offense punishable by death, the conviction for a lesser included offense could be had, even though the offense was committed more than two years prior to the indictment. Thus, under the statute, conviction of a lesser included homicide could result from a first degree murder charge when prosecuted by indictment, but the lesser included offense would be barred if the prosecution was by information. The court held that the legislation overstepped constitutional bounds and that the lesser included offense was barred regardless of whether prosecution was by in.dictment or information, saying:
“It is within the power of the legisla- . ture to fix the time in which prosecution for any offense may be commenced. It is not competent, however, for the legislature to fix the time within which a prosecution may be commenced if the prosecution is commenced by indictment and a different time if the prosecution be commenced by information. To hold otherwise would be tantamount to allowing the prosecuting officer to determine whether or not the statute of limitations should or should not be applicable.”
25 So.2d at 75.
The writer would believe this law to be applicable if there is the broad right of discovery as indicated by the Essntan decision. I concur in the opinion of the majority only because I am convinced that the Essntan decision is not in accord with subsequent pronouncements of our Supreme Court, such as those contained in State v. Smith, 99 Ariz. 106, 407 P.2d 74 (1965), and State v. Chambers, 100 Ariz. 368, 414 P.2d 742 (1966). These decisions hold that a defendant is not prejudiced by failure to assign .counsel to represent an indigent accused at a preliminary hearing. These later decisions are premised upon the recognition that a preliminary hearing has a very limited function. If there is a right of-discovery at a preliminary hearing, such holdings are, in my view, indefensible under equal protection provisions and due process clauses. The Supreme Court of the United States has expressed itself as being most adamant that the outcome of criminal trials should not depend to any substantial degree upon the financial status of the accused: Douglas v. People of the State of California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963); Eskridge v. Washington State Bd. of Prison Terms and Paroles, 357 U.S. 214, 78 S.Ct. 1061, 2 L.Ed.2d 1269 (1958); Griffin v. People of the State of Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956).
The use of a preliminary hearing for discovery purposes, if this be a right of the accused, can only be exploited properly by professional counsel, with rare exceptions. And if we are to grant this right only to defendants able to employ their own- coun*582sel, certainly the spirit of the above cited decisions of the Supreme Court of the United States is being violated in our state.
Even without Essman, that is, even if the extent of discovery permitted an accused at a preliminary hearing held in this state be limited to the rebutting and cross-examination of evidence of probable cause put on by the state, there is a serious question of “ * * * invidious discrimination”1 between those able to employ counsel and those not, for, regardless of the limitations placed by the magistrate upon efforts of the accused to use the preliminary hearing as a discovery device, a substantially greater degree of disclosure of the state’s case will necessarily result than that ordinarily occurring when the indictment route is followed.
However, there is at least difference in degree if not in kind between permitting discovery as an accidental concomitant of a judicial or administrative process, and the granting of a right to discovery, which, if frustrated, will invalidate the entire proceeding. At a time when the opportunities of the state for discovery are so closely limited, rather than adding to the pretrial discovery devices of the defense, I am swayed in the direction of considering this difference to be one of substance and of returning to the basic purpose of a preliminary hearing as expressed by our Supreme Court in State ex rel. Corbin v. Superior Court, 100 Ariz. 236, 413 P.2d 264 (1966), and as expounded in the Washington decision relied upon in the principal opinion, State v. Kanistanaux, 414 P.2d 784 (Wash. 1966).
However, if Essman correctly reflects the state of our law, and subsequent decisions have not expressly overruled it, then the result reached here runs too much counter to fundamentals of equal protection to long survive. Without Essman, the result reached today remains in great jeopardy because of the current trends in our criminal law.
. Quote from Griffin v. People of the State of Illinois, 351 U.S. 12, 18, 76 S.Ct. 585, 590, 100 L.Ed. 891 (1956).