(dissenting) — In my opinion, the majority, *508in upholding appellant’s indictment, has reached a result which is directly contrary to the settled .policy of this state as determined by our legislature with respect to the impaneling of grand juries. Therefore, I cannot agree with the majority holding that appellant was not entitled, under the laws of this state, to have a grand jury composed of impartial and unprejudiced jurors.
In considering appellant’s motion to quash the indictment, we must bear in mind that appellant was indicted by a grand jury impaneled in the state of Washington and not by a Federal grand jury or a grand jury of a state whose statutes differ from ours. However, the majority holds that the superior court need not inquire whether the prospective grand jurors entertain any prejudice against the person whose conduct the court, in its charge, directs them to investigate, and bases its holding upon decisions of the Federal courts whose grand juries need not be composed of impartial and unprejudiced jurors because no statute or rule of court so prescribes.
To fully understand the very serious problem presented by the three assignments of error quoted below, it is necessary to consider certain material facts shown by the record, which are not referred to in the majority opinion, presumably because of its view that everything that happened prior to the trial of the case is immaterial. In order to properly consider the legal question which is presented, I consider it necessary to state these facts in some detail before coming to a discussion of the applicable statutes and decisions of this court.
The assignments of error with which we are first concerned are as follows:
“25. The court denied appellant’s rights to a fair and impartial grand jury.
“26. The court erred in prejudicing the grand jury against appellant by its charge.
“28. The court erred in failing to set aside the indictment for misconduct of the prosecutor before the grand jury.”
In passing upon the merits of these assignments, we should have in mind the unique situation which existed during the *509three months immediately preceding the convening of the grand jury.
The grand jury, which returned the indictment herein, was convened on May 20, 1957. Several months prior thereto, the Senate Select Committee on Improper Activities in the Labor-Management Field (commonly referred to as the Senate Rackets Investigating Committee) commenced an investigation of certain labor unions and their officers. Needless to say, these hearings were not of a judicial nature. Ordinary rules of evidence were not applicable, nor were the witnesses subject to cross-examination. The stated object of the committee hearing was to obtain information which would aid Congress in enacting legislation bearing upon labor-management relations.
Most of the hearings were conducted in public and were widely reported by the various news media. During the period of approximately three months prior to the impanelment of the grand jury, appellant was the principal subject of charges of misconduct made in the course of the hearings. Because appellant was then, and since childhood had been, a resident of Seattle, and for the preceding thirty years had been a labor leader of national reputation,2 this area was the focal point for the dissemination of the highly derogatory publicity concerning appellant which resulted from the committee hearings. The local press featured front-page headlines in large, heavy type, in which the more sensational excerpts from that day’s testimony or other proceedings of the committee were flamboyantly displayed. The local radio and television stations carried the same material, and in several instances both media reported the hearings “live” from Washington, D. C.3
*510On March 26, 1957, and again on the following day, appellant, accompanied by counsel, appeared as a witness before the committee. Upon the advice of counsel, appellant informed the committee that he would assert the privilege against self-incrimination guaranteed him by the Fifth Amendment to the United States Constitution because of the fact that he was currently being investigated for possible violations of Federal law. The committee posed questions to appellant which he refused to answer (on the advice of counsel) on the ground that an answer might tend to incriminate him. He did so a total of one hundred fifty times during the two days of his interrogation by the committee.
On May 2, 1957, appellant was indicted in Tacoma by a Federal grand jury for alleged income-tax evasion.
On May 3, 1957, there appeared on the first page of the Seattle Post-Intelligencer a statement to the effect that the prosecuting attorney had decided to name special prosecutors to assist him in conducting the grand jury proceedings.- This article contained the following statement:
“The grand jury is to investigate possible misuse of Teamsters Union funds by international president Dave Beck ..."
On May 8, 1957, appellant was recalled to testify before the Senate Committee, where he was again subjected to a lengthy interrogation, during which appellant again invoked the Fifth Amendment, upon the advice of counsel, approximately sixty times.
During the course of these proceedings, the committee chairman, its counsel, and some of its members, orally stated certain conclusions and expressed opinions regarding the conduct of appellant. These comments, which were extremely derogatory to appellant, were widely circulated by all news media throughout the United States, and particularly in the Seattle area. In these comments, appellant was *511characterized as a thief, and it was asserted that he was guilty of fraud and other illegal conduct with respect to his management of the affairs of the teamsters’ union as its principal officer in the eleven western states, and later in his position as its international president.
These conclusions and opinions (particularly those expressed by Senator McClellan, the chairman of the committee) were displayed by local newspapers on the front page in prominent headlines. The following are a few of the comments which were referred to in such headlines which appeared in Seattle newspapers:
“Teamsters’ Cash Kept Going To Beck After He Became Union President, Says Prober.” Seattle Times, March 23, 1957.
“Beck’s Use of $85,000 May Be Theft, Says McClellan.” Seattle Times, March 27, 1957.
“Beck Gives ‘Black Eye’ to Labor, Says Sen. McNamara.” Seattle Times, March 27, 1957.
“Senate Probe Lifts Lid On Beck Beer Business — Use of Union Money Related.” Seattle Post-Intelligencer, May 9, 1957.
Substantial portions of the committee proceedings relating to these charges were also reproduced in the course of news broadcasts on local radio and television stations.
The amount, intensity, and derogatory nature of the publicity received by appellant during this period is without precedent in the state of Washington. A Seattle newspaper carried a news item reporting that the switchboard of a local radio station that had broadcast the committee proceedings on the preceding day was jammed with calls, and that the officials of the station characterized the response to the broadcast on the part of the public as “astounding,” and that such response was greater than that resulting from any other broadcast ever aired by them. The serious accusations made by United States senators in the committee hearings are generally regarded by laymen as being official charges (which appellant had refused to answer)4, and thus *512the impression was created among the general public that appellant had been found guilty of a crime. The natural effect of this publicity was that, in the eyes of the average citizen, the character of appellant had been thoroughly discredited in the Seattle area on or before May 20, 1957.
In view of the circumstances shown by the undisputed facts stated in the affidavits in this case, I think it would be unrealistic to believe that a very substantial number of the citizens of the community had not adopted, consciously or unconsciously, an attitude of bias and prejudice toward appellant at the time the grand jury was convened. If ever there was a case which required the most stringent observance of every safeguard known to the law to protect a citizen against bias and prejudice, this was it.
On July 30, 1957, appellant (who had been indicted on July 12th) filed a motion to allow him to publish and inspect a transcript of both the grand jury voir dire and the grand jury proceedings. Appellant filed an amended motion on September 16, 1957, supported by his counsel’s affidavit, stating on information and belief that the grand jury was prejudiced and biased. On September 20, 1957, the trial court entered an order granting appellant the right to publish and inspect the open court proceedings of the grand jury (i.e. the voir dire and the court’s charge).
On October 18, 1957, appellant filed, along with other pretrial motions not pertinent hereto, a motion to set aside and dismiss the indictment. This motion was accompanied by his counsel’s affidavit, attached to which was a compilation of photostatic copies of newspaper and magazine articles (total 139 pages) showing the nature and extent of the adverse publicity concerning appellant. On the same day, appellant also filed a challenge to the grand jury upon the grounds
“ . . . that the court which impaneled said grand jury made no determination as to whether a state of mind existed on the part of any juror such as would render him unable to act impartially and without prejudice.”
All of these motions were argued before the superior court on November 4, 1957, and on November 7, 1957, the court *513entered an order denying both the motion to set aside and dismiss the indictment and the challenge to the grand jury, but directing that the testimony of Fred Verschueren, Jr., before the grand jury be transcribed, sealed, and retained in the case file, subject to disclosure only in the event of a conviction and subsequent appeal. The state’s application to this court for a writ of prohibition to prevent the entry of this order was denied.
In considering the three assignments of error referred to above, I shall discuss (1) the impanelment of the grand jury, (2) the charge given the grand jury, and (3) the alleged misconduct of the prosecuting officers in the examination of a witness before the grand jury.
The Impanelment
Within five days before the prospective members of the grand jury reported to the court, the Seattle newspapers published articles with these headlines:
“Beck Apparently Stole $300,000 From Union, Says Probe Aide.” Underneath this headline is the following statement:
“Labor Probe at a Glance:
“Robert Kennedy, counsel for the Senate Rackets — Investigating Committee, said it would appear that $300,000 to $400,000 which Dave Beck ‘borrowed’ from the Teamsters actually was ‘stolen.’ (See below.)” Seattle Times, May 15, 1957.
“Beck Misused Union Position in 52 Instances, Says Prober.” (There then follows in the body of the article a detailed list of 52 instances of alleged misuse by appellant of his union position.) Seattle Times, May 16, 1957.
“Senate Document Charges Beck ‘Took’ $300,000.” Seattle Post Intelligencer, May 17, 1957.
“McClellan Blasts Beck For ‘Rascality.’ ” Seattle Post Intelligencer, May 17, 1957.
The grand jury was impaneled on May 20, 1957. After explaining the general qualifications of grand jurors, the court examined each prospective member as to his or her particular qualifications to act as grand juror. These ques*514tions-related, to :the-.juror’s occupation, whether he had ever been a member of the. teamsters’ union (or any affiliate thereof) or an officer in any union. He was further asked if he were acquainted with any officer of the teamsters’ union. One prospective juror was asked if he. knew appellant and. he replied in the negative. The final question which the court asked each prospective juror was:
“Is there anything about sitting on this grand jury that might embarrass you at all?”
The court excused five prospective jurors5 and examined five more in the same manner. The seventeen persons then in the jury box were accepted as constituting the grand jury and the court administered the oath to them.
It is to be noted that none of the jurors who were accepted was asked if he had read anything about the alleged activities of the officers of the teamsters’ union in the Seattle newspapers or in nationally circulated magazines, particularly those articles relating to the proceedings before the Senate Committee. Neither was any juror asked if he had heard any part of these proceedings on the radio or had seen them “live” on television. Nor was there any interrogation of the jurors had to ascertain whether any of them had heard or participated in any discussions concerning these matters. The general question as to whether the jurors would be embarrassed in any way in sitting on this grand jury was, in my opinion, not sufficient to disclose any bias or prejudice (conscious or unconscious) on the part of the jurors.
In view of the unprecedented publicity which had been given to the Senate Committee hearings within the three months preceding the impanelment of the grand jury, I think that the jurors should have been interrogated for the *515existence of possible bias and prejudice against the officers of the teamsters’ union.
The authorities bearing on this subject will be discussed after I review the court’s charge to the grand jury.
The Court’s Charge
The court explained the historical background and functions of the grand jury, and commented on the fact that it had been used so infrequently in this state that most people, even lawyers, were unfamiliar with its procedure and underlying purposes. The court then outlined the manner in which the grand jury was to perform its functions.
The court stated the reasons for calling this grand jury as follows:
“We come now to the purpose of this grand jury and the reasons which the judges of this court thought sufficient to justify the expense to the county, and the inconvenience to and sacrifice by you, which this grand jury session will require.
“It seems unnecessary to review the recent testimony before a Senate Investigating Committee except to say that disclosures have been made indicating that officers of the Teamsters Union have, through trick and device, embezzled or stolen hundreds of thousands of dollars of the funds of that union — money which had come to the union from the dues of its members. It has been alleged that many of these transactions, through which the money was siphoned out of the union treasury, occurred in King County. Such crimes, if committed, cannot be punished under Federal law, or under any law other than that of the State of Washington, and prosecution must take place in King County. The necessary criminal charges can only be brought in this county upon indictment by the grand jury or information filed by the prosecuting attorney.
“The president of the Teamsters Union has publicly declared that the money he received from the union was a loan which he has repaid. This presents a question of fact, the truth of which is for you to ascertain.
“You may find that many of the transactions happened more than three years ago; this would raise the question of the statute of limitations, which ordinarily bars a prosecution for larceny after three years. There are some instances, however, where the period is extended. This is a question *516of law and you should be guided by the advice of the prosecutors on this and similar questions. Your investigation may conceivably result in the adoption of better standards of conduct for union officials.
“Some other inquiries suggested by the Senate investigation are the relationship between the officers of the Teamsters Union and a certain insurance broker; an alleged conspiracy between business men and Teamster officials in fixing prices; and the influence wielded by Teamster officers through campaign contributions to public officials.
“To completely investigate all of these items may be beyond the energy and endurance of yourselves, the prosecutors and their investigating staff. The financial burden of such a complete investigation may be beyond the resources of King County. I urge you to do all that you can within practical limitations to ascertain the truth or falsity of these charges.”
After designating the foreman of the grand jury, the court said:
“Now, members of the grand jury, that is all I have to say to you in the way of a formal charge. I think you all realize that your names have been selected right from the jury list which in turn is picked from the voters’ registration books. You have a most serious task to perform and I know you realize it is being performed, and is to be performed, by a grand jury picked at random from among the citizens in this community, and thus we hope to keep the law close to the people. It is a tremendous responsibility, and I wish you well in your work.”
The court then introduced the prosecuting attorney, one regular deputy, two special prosecuting attorneys for the grand jury and the official court reporter, and terminated its charge.6
While the charge contained this admonition, “Your deliberations are secret and you are forbidden by law to disclose the vote, or even the discussion, on any question before you,” no warning was given the jurors about refraining from *517reading newspaper or magazine articles relating to officers of the teamsters’ union while they were serving as grand jurors; nor was there any admonition given the grand jurors about not listening to radio or television programs pertaining to the conduct of these officers.
On the afternoon of the day that the grand jury was selected and sworn, two articles appeared in the Seattle Times concerning appellant. The headlines read:
“Beck .Ousted From A.F.L.-C.I.O. Posts — Teamster Chief Found Guilty of ‘Violating Trust.’ ” Seattle Times, May 20, 1957.
“Solon Denies Infringing Beck’s Rights.” (“ ‘May I say that the committee has not convicted Mr. Beck of any crime, although it is my belief that he has committed many criminal offenses.’ ”) Seattle Times, May 20, 1957.
The following morning, the Seattle Post Intelligencer carried this headline:
“McClellan Lays ‘Many Criminal’ Acts to Beck.” Seattle Post Intelligencer, May 21, 1957.
Between that date (May 21,1957) and July 12,1957, when appellant was indicted, two nationally circulated weekly magazines published articles entitled:
“The Case Against Dave Beck as Senators See It.” U. S. News & World Report, May 24, 1957.
“A City Ashamed — Dave Beck is on Seattle’s Conscience.” Time, May 27, 1957.
I shall now discuss the arguments of counsel relating to assignments of error No. 25 and No. 26.
The motion to set aside and dismiss the indictment was based upon RCW 10.40.070, which provides that an indictment must be set aside when it appears:
“ (4) That the grand jury were not selected, drawn, summoned, impaneled, or sworn as prescribed by law.”
It is appellant’s contention that the grand jury was not impaneled as prescribed by law in that there was no interrogation by the trial court designed to enable it to determine whether or not any juror possessed a state of mind which would render him unable to act impartially and without *518prejudice. To this is added the further contention that the trial court’s charge to the grand jury was prejudicial to appellant.
My examination of the portion of the. record relating to these matters convinces me that appellant’s contentions are well taken.
The statutes of this state relating to grand juries clearly demonstrate the legislative intent to adopt the principle that the grand jury must be impartial and unprejudiced.
“No complainant who may institute a prosecution shall be competent to be present at the deliberations of a grand jury, or vote for the finding of an indictment.” RCW 10.28.140.
“Challenges to individual grand jurors may be made by such person for reason of want of qualification to sit as such juror; and when, in the opinion of the court, a state of mind exists in the juror, such as would render him unable to act impartially and without prejudice.” RCW 10.28.030.
In Watts v. Washington Territory, 1 Wash. Terr. 409, this court, in overruling a challenge to the grand jury proceedings, pointed out that there had been no claim by the defendant that any of the grand jurors were biased or prejudiced.
In State ex rel. Murphy v. Superior Court, 82 Wash. 284, 144 Pac. 32 (1914), we upheld the right of the trial judge to excuse certain prospective jurors and stated:
“That it was the policy of the legislature to preserve the right to have an unbiased and unprejudiced jury and grand jury, and that no suspicion should attach to the manner of its selection in all cases, cannot be questioned. . . . ” (Italics mine.)
In State v. Guthrie, 185 Wash. 464, 56 P. (2d) 160 (1936), this court, in denying a motion to quash an indictment, cited the Murphy case, supra, and the above quotation therefrom with approval and discussed the statute now codified as RCW 10.28.030 (quoted above) as follows:
“While this section may be said to relate to challenges made by interested persons, it is not to be construed as denying to the court the right, upon its own motion, to excuse a juror deemed to be disqualified or incompetent. To deny *519this right would be out of harmony with the policy of the law, which charges the court with the responsibility of insuring that qualified, and impartial grand jurors are secured.” (Italics mine.)
. Thus, our consideration of this case should be based upon the premise that appellant, as a matter of law, was entitled to an impartial and unprejudiced grand jury. Although the state in this case does not take issue with this premise,7 the majority holds that appellant is not concerned with anything that takes place before his trial begins.
In my opinion, we should view the circumstances of this case realistically and in a reasonable manner. As I read the record, a consideration of the facts of this case thus viewed *520can only lead to the conclusion that some, if not all, of the grand jurors had already formed certain unfavorable opinions regarding appellant’s alleged conduct.
To do otherwise, would seem to be contrary to all human experience. Yet, at no time were any of the prospective jurors asked if they had formed an opinion, and, if so, whether such fact would prevent them from participating fairly in an impartial investigation of the matters later referred to in the court’s charge.
Furthermore, no instruction was ever given them as to the legal significance to be attributed to the newspaper statements that appellant had invoked the Fifth Amendment privilege some two hundred fifty times in declining to answer questions before the Senate Committee. Yet, such fact was the subject of much comment in the various news media. As stated in Grunewald v. United States, 353 U. S. 391, 1 L. Ed. (2d) 931, 77 S. Ct. 963, 62 A. L. R. (2d) 1344, where the court, in discussing the right to invoke this constitutional privilege, quoted from Griswold, The Fifth Amendment Today:
“ ‘Too many, even those who should be better advised, view this privilege as a shelter for wrongdoers. They too readily assume that those who invoke it are either guilty of crime or commit perjury in claiming the privilege.’ ”
The failure of the court to interrogate the jurors for the existence of possible bias and prejudice against the officers of the teamsters’ union constituted prejudicial error.
The effect of this error was further magnified by the court’s charge to the grand jury. The jurors were not instructed to base their deliberations solely upon the evidence presented to them during the course of their investigation. On the contrary, the court’s charge seemed to indicate that the so-called disclosures of the Senate Committee were worthy of their consideration. Instead of instructing the jurors that they must wholly disregard the “testimony” before the Senate Committee, the court expressly brought it to their attention, and then stated the substance of the committee’s conclusions as to appellant’s conduct. Indeed, the language used implied that the court felt that the grand *521jurors must already be aware of these matters because of the widespread publicity accorded the Senate hearings.
The court stated that the president of the teamsters’ union had publicly stated that the sums received by him from the union were a loan, and that it was the function of the grand jury to investigate this matter and determine the truth in that regard. As stated in Fuller v. State, 85 Miss. 199, 37 So. 749:
“ . . . every man, whether accused or not, is entitled to the presumption of innocence until legally convicted. This presumption is binding upon the petit jury, and stands as a witness in favor of the defendant when on trial. It guards him before the grand jury until their investigations have produced proof believed by them which overthrows it. It protects him from the circuit judge in his charge to the grand jury, and forbids that any word from that high station, so apt, on account of its dignity and importance, to influence by its slightest utterance, should prejudice the grand jury when it enters upon the consideration of violations of the law." (Italics mine.)
The last assignment which it is necessary to notice is No. 28, which relates to the alleged misconduct of the prosecuting officers before the grand jury during the examination of the witness, Fred Verschueren, Jr., who was bookkeeper for the Joint Council of Teamsters No. 28.
The testimony of this witness before the grand jury covers one hundred eighty six pages of the record and is too long to paraphrase in this opinion. Suffice it to say that he was subpoenaed and first testified on June 20, 1957, regarding the handling of certain funds. He was excused after completing his testimony on that day.
On July 10, 1957, he voluntarily appeared and asked to correct some errors in his testimony. He said he did so at the suggestion of his own counsel. In his testimony on this occasion he told about having in his custody two envelopes containing currency which he was holding for appellant. He was excused temporarily to go back to his office and bring these envelopes to the grand jury room. He did so, and the contents of each envelope was counted. There was *522$3,100 in one envelope and $3,500 in the other. Included in one envelope were two $500 bills.
Mr. Verschueren’s recollection was rather vague on some details, and his explanations regarding the change in his testimony since his June 20th appearance irked the three prosecuting officers who took turns cross-examining him.
Each of them threatened the witness in various ways: (1) With prosecution for perjury jour times (penalty fifteen years in the penitentiary — “there is no reason for you to go to the penitentiary for somebody else”); (2) invited him to take a lie detector test; (3) threatened to send the envelopes to the Federal Bureau of Investigation to find out if the witness were lying about having sealed and unsealed them. Another instance of badgering this witness was when one of the prosecuting officers said to the witness that he (the interrogator) knew that one could not get a $500 bill from a teller’s window at a bank except by special request, and that “we are going to assume . . . that is correct.” At another point, a prosecutor stated to the witness: “. . . nobody in the room [being the grand jury and four prosecuting officers] believes one word you say.”
The affidavit of appellant’s counsel states on information and belief that there was such loud talking in the grand jury room that it was audible in the hall outside.
The State Grand Jury Handbook, prepared under the auspices of the Section of Judicial' Administration of the American Bar Association (1959), states as follows regarding the interrogation of witnesses before grand juries by prosecuting officers or jurors:
“All questioning should be impartial and objective, without indicating any viewpoint on the part of the questioner.”
The questioning of the witness Verschueren in this case, could hardly be described as objective. Neither was the viewpoint of the interrogator concealed when he attempted “to testify” as to the only possible way to get a $500 bill at a bank and further stated, in effect, that no member of the grand jury believed a word the witness said.
In order that there may be no assertion that the above *523described comments on the conduct of the prosecuting officers are not accurate, the pertinent portions of Mr. Verschueren’s examination are set forth in Appendix A below.
The functions of a prosecuting officer with respect to the grand jury are limited to the giving of legal advice (upon request) and the examination of witnesses. Our statute and the decisions from other jurisdictions indicate the scope of these functions and are discussed below.
RCW 10.28.070 provides:
“The prosecuting attorney shall attend on the grand jury for the purpose of examining witnesses and giving them such advice as they may ask.”
I do not think that the phrase “examining of witnesses” includes threats, arguments, and comments upon the evidence such as were made in this case. In United States v. Wells, 163 Fed. 313, the court, in speaking about the duties of the prosecutor with respect to the grand jury, stated:
“ . . . the provision that the prosecuting attorney may at all times appear before the grand jury for the purpose of giving information or advice relative to any matter cognizable by them, was meant to confine him to those traditional duties of giving advice concerning procedure and the like, to the examination of witnesses, as expressly provided, and not to the expression of opinions or the making of arguments. . . . ”
Nor is it proper for the prosecutor to state facts which have no relevancy to the guilt or innocence of the person under inquiry (Attorney General v. Pelletier, 240 Mass. 264, 134 N. E. 407 (1922)); or to pass on the credibility of witnesses (People v. Benin, 61 N.Y.S. (2d) 692, 186 Misc. 548 (1946)); or in any way influence or direct the grand jury in its findings. Williams v. State, 188 Ind. 283, 123 N.E. 209 (1919).
The responsibility of the prosecutor in the trial of a criminal matter is discussed in State v. Case, 49 Wn. (2d) 66, 298 P. (2d) 500 (1956), where we quoted from People v. Fielding, 158 N. Y. 542, 547, 53 N. E. 497 (1899) these words:
“ ‘Language which might be permitted to counsel in sum*524ming up a civil action cannot with propriety be used by a public prosecutor, who is a quasi-judicial officer, representing the People of the state, and presumed to act impartially in the interest only of justice. If he lays aside the impartiality that should characterize his official action to become a heated partisan, and by vituperation of the prisoner and appeals to prejudice seeks to procure a conviction at all hazards, he ceases to properly represent the public interest, which demands no victim, and asks no conviction through the aid of passion, sympathy or resentment.’ ”
See, also, State v. Reeder, 46 Wn. (2d) 888, 285 P. (2d) 884 (1955), and cases cited therein.
Thus, if it is the duty of the prosecutor to conduct himself as a quasi-judicial officer in a contested criminal trial in the presence of a judge, how much more essential it is that he do so in a secret and uncontested grand jury proceeding before seventeen laymen without the presence of a judge.
The conduct of the prosecuting officers in this case can hardly be characterized as quasi-judicial. Rather it is best described in the following quotation from United States v. Wells, supra, which involved a grand jury proceeding:
“ . . . a commendable zeal, which gathered force as it progressed, finally expanded into an exaggerated partisanship wholly inconsistent with the semijudicial duties of a public prosecutor, and entirely unnecessary in the execution of the powers reposed, . . . ”
The only case I have found which even remotely resembles the one at bar, in so far as it pertains to misconduct of prosecuting officers before the grand jury, is Commonwealth v. Bane, 39 Pa. Dist. & Cy. Rep. 664. There the defendants themselves were the witnesses before the grand jury, and the court quashed the indictment because the investigation was conducted by the Commonwealth’s counsel in a prejudicial manner, in that the testimony of the defendants was openly derided and they were denounced as hypocrites and liars and were exhorted to repentance and confession in a highly emotional and dramatic manner, the court stating:
“While it is the duty of the Commonwealth’s counsel, as *525wéll as his privilege, to attend upon the grand jury with matters upon which they are to pass, to aid in the examination of witnesses, and to give such general instructions as they may require, any attempt on his part to influence their action or to give effect to the evidence adduced is grossly improper and impertinent: ...”
The difference between the misconduct in the Bane case, supra, and that before us here is one of degree only. The witness Fred Verschueren, Jr., on his second appearance before the grand jury, was giving testimony favorable to appellant. His credibility was for the grand jury to pass upon without any comment from the prosecuting officers. It could well be that his testimony was disbelieved by the grand jury solely as a result of the conduct of the prosecuting officers as shown in Appendix A.
Whether such conduct, in and of itself, would be sufficient to invalidate the indictment or not, it is not necessary to determine. However, it could only serve to further prejudice the grand jury, and, when taken in conjunction with the other errors previously discussed, deprived appellant of the right to an unprejudiced and impartial grand jury as contemplated by the law of this state.
The errors on the part of the court in impaneling and charging the grand jury were no doubt due, in large part, to the infrequent occasions when grand juries have been called in this state. The court itself commented on this fact in its charge to the grand jury when it said that most people, even lawyers, are generally unfamiliar with grand jury procedure.8 However, the fact remains that appellant, be he guilty or innocent, was entitled to a fair and impartial investigation of his conduct in accordance with the forms of the law before a valid indictment could be found against him. I am of the opinion that this right was denied him. As the supreme court of the United States said, in United States v. Hoffman, 341 U. S. 479, 95 L. Ed. 1118, 71 S. Ct. 814:
*526“The signal increase in such litigation emphasizes the continuing necessity that prosecutors and. courts alike be ‘alert to repress’ any abuses of the investigatory power invoked, bearing in mind that while grand juries ‘may proceed, either upon their own knowledge or upon the examination of witnesses, to inquire . . . whether a crime cognizable by the court has been committed,’ Hale v. Henkel, 201 U. S. 43, 65 (1906), yet ‘the most valuable function of the grand jury . . . [has been] not only to examine into the commission of crimes, but to stand between the prosecutor and the accused,’ id. at 59. Enforcement officials taking the initiative in grand-jury proceedings and courts charged with their superintendence should .be sensitive to the considerations making for wise exercise of such investigatory power, not only where constitutional issues may be involved, but also where the noncoercive assistance of other federal agencies may render it unnecessary to invoke the compulsive process of the grand jury.”
Conclusion
My conclusion, based on the record herein and the decisions hereinabove referred to, is that two rules of law are applicable to the instant case:
1. That appellant is entitled to the presumption of innocence at all stages of this proceeding from the impaneling of the grand jury to the close of the trial before the petit jury. This right cannot be denied him because of any proceedings had before the Senate Committee.
2. The selection of an unprejudiced and impartial grand jury to determine whether appellant should be indicted or not is just as much an essential part of the law of this state as the selection of an unprejudiced and impartial petit jury impaneled to try him and render a verdict of guilty or not guilty of the offense charged in the indictment.
It is no answer here to argue that the state could have elected to proceed against appellant by information. The fact remains that the grand jury procedure was used. Thus, it was mandatory that the state comply with those statutes, which have been in effect in this state (and territory) since 1854, granting appellant the right to an impartial and unprejudiced grand jury.
This court, in State v. Devlin, 145 Wash. 44, 258 Pac. 826 *527(1927), defined a fair trial. That definition applies mutatis mutandis to a grand jury investigation. In the cited case, we said:
“The question involved is that of a fair and impartial trial. In State v. Pryor, 67 Wash. 216, 121 Pac. 56, this court said:
“ ‘A fair trial consists not alone in an observation of the naked forms of law, but in a recognition and a just application of its principles.’
“It is the law of the land, a right vouchsafed by the direct written law of the people of the state. It partakes of the character of fair play which pervades all the activities of the American people, whether in their sports, business, society, religion or the law. In the maintenance of government to the extent it is committed to the courts and lawyers in the administration of the criminal law, it is just as essential that one accused of crime shall have a fair trial as it is that he be tried at all, whether he be guilty or not, has his picture in the rogue’s gallery or not. In the Pryor case just referred to, it was said that it must be remembered, as stated in Hurd v. People, 25 Mich. 404, ‘that unfair means may happen to result in doing justice to the prisoner in the particular case, yet, justice so attained is unjust and dangerous to the whole community.’ ”
Despite the public indignation created by the widespread publicity resulting from the senate hearings, appellant was entitled to the same unprejudiced and impartial grand jury investigation as the law of this state guarantees to every citizen whether he be prominent or obscure. For one hundred five years, it has been the duty of our courts, as prescribed by both the territorial.and state legislatures, to see that a state of mind does not exist in any prospective grand juror which would render him unable to act impartially and without prejudice. In my opinion, this statutory duty was not performed in this case, and hence the grand jury was not impaneled as prescribed by law.
Before concluding this dissent, I wish to briefly notice certain statements contained in the majority opinion. The majority takes the position that the only statutory provisions that grand jurors in this state are required to be impartial and unprejudiced are found in RCW 10.28.010 and *528RCW 10.28.030, and that these provisions apply only to persons already in custody or held to answer for an offense. The majority opinion then states:
“There was a reason for such a challenge by a ‘person in custody or held to answer for an offense,’ but the appellant was not such a person.” (Italics mine.)
It seems to me that the only reason the legislature granted to a person in custody or held to answer for an offense the right to be investigated by an impartial and unprejudiced grand jury, is that the grand jury’s attention had been focused upon him from the commencement of its investigation. That is precisely the situation of appellant here. There could not be any doubt in the minds of the prospective jurors that this grand jury had been convened to investigate appellant. As mentioned above, not only did the newspapers announce, less than three weeks before the impanelment, that appellant was to be investigated by the grand jury, but, also, the trial court, in its charge, instructed the grand jury that the president of the teamsters’ union had publicly stated that the sums received by him from the union (which the Senate Committee stated were stolen) were loans which had been repaid, and that this issue presented a question of fact for the grand jury to resolve.
I do not understand how it can be said, under the facts shown in this record, that the reason entitling a person in custody or held to answer for an offense to be investigated by an impartial and unprejudiced grand jury, does not apply equally well to appellant. It is axiomatic that all men are equal before the law and are entitled to the same rights under the same or similar circumstances.
The majority opinion continues with the following statement:
“ . . . When a modern grand jury starts its investigative process it seems ridiculous to suggest that as each new personality comes under scrutiny the proceedings must stop until it can be determined whether any member of the grand jury is biased or prejudiced against him; and, if a grand juror is so biased or prejudiced, the investigation is at an end. . . . ”
*529Our duty is to apply the law to the facts of this case, and the above-quoted statement has no application to appellant. He was not some new personality who had come under the scrutiny of the grand jury during the course of its investigation. Rather, the court made it clear, in its charge, that the primary purpose of convening this grand jury was to investigate his activities as an officer of the teamsters’ union. Appellant was a person whose conduct the trial court, in its charge, specifically directed the grand jury to investigate.
The majority further states that there is no showing here of bias or prejudice. My answer is that if, in the face of all the publicity regarding the Senate Committee hearings described above, anyone realistically could believe that there was no showing of bias and prejudice against appellant, at the time of the impanelment of the grand jury, then it is impossible ever for anyone to make such a showing.
But, appellant’s complaint is that the grand jurors were never interrogated by the trial court to determine if any bias or prejudice existed. In the absence of such interrogation, appellant necessarily must rely on the facts stated as indicating what such an interrogation would have disclosed as to bias or prejudice. Under the evidence here, it would be wholly unrealistic to presume that the grand jury was unbiased and unprejudiced.
The majority concludes its discussion of the grand jury proceedings with the statement that even if there were sufficient irregularities in the present case to warrant quashing the indictment, appellant could not be prejudiced, since there is no constitutional or statutory right to a grand jury in this state.
Whether or not there is a constitutional or statutory right to a grand jury in this state is, in my opinion, totally immaterial. What is controlling here is the fact that the state elected to proceed against appellant by indictment rather than by information. Therefore, having so elected, the state was bound to comply with the statutes relating to grand jury procedure.
The majority opinion relies chiefly on decisions rendered by Federal courts whose grand juries need not be composed *530of impartial and unprejudiced jurors, because no statute or ride of court prescribes that qualification. Whether the Federal system or that ordained by the legislature of this state is preferable, is not for this court to declare. Any and all branches of government must comply with applicable constitutional and statutory requirements in the performance of their functions. This includes the grand jury. Until the legislature amends or repeals the statutory law, quoted and emphasized above, it must be applied with equal effect to every person whose conduct is under investigation by a grand jury pursuant to the court’s charge to it.
For the reasons stated herein, it is my opinion that the order of the superior court denying appellant’s motion to set aside and dismiss the indictment should be reversed and the cause remanded with directions to grant the motion.
Finley, Rosellini, and Hunter, JJ., concur with Don-worth, J.Appendix A (to dissenting opinion)
Excerpts from examination of Fred Verschueren, Jr., by prosecuting officers before the grand jury July 10, 1957. (All italicized portions are those referred to in the attached opinion.)
“Q. Mr. Verschueren, I want to warn you at this time that you are under oath and that what you say here, if found to be false, can be perjury and you could be guilty of perjury for testifying falsely under oath. A. Yes sir. Q. You are under oath. A. Yes sir. Q. And the penalty for perjury is fifteen years in the penitentiary, it is a felony. A. Yes sir. Q. Now, I want to give you every opportunity to state the truth. . . . Q. You know that. Do you want to tell us when he [appellant] signed this? You still say he signed this in October of ’54 when he gave it to you?' Do you want to change your testimony or not? A. I don’t care to change my testimony. He must have signed it. Q. We want to know the truth. A. I am telling you the truth, Mr............................Q. All right. Mr............................asked you about these envelopes. He told, you about the penalty for perjury. You are the person that is on the stand, you are the person, under oath down here, do you understand that? A. Yes sir. Q. We are concerned with one thing and one thing only,. *531the truth. A. Yes sir. Q. Now, Mr. Beck gave you this envelope in October, 1954, is that your testimony? A. Either that one or the other one, sir. Q. This is Mr. Beck’s handwriting, is it not? A. Yes. Q. He handed you this envelope with his handwriting on it' at one time and one time only, isn’t that true? A. Yes, but it is not necessarily the one he handed me in October of ’54. Q. I thought you testified to Mr......................... it was the first envelope that had Western Conference on it, the other envelope, other material he gave you at a different time. You testified the first envelope he gave you had Western Conference and Joint Council on it. A. I believe so. Q. That is the one he gave you October of ’54, isn’t that correct? A. Well, you are confusing me now. Q. I am not trying to confuse you, sir. I want you to tell the truth. A. I am telling the truth. Q. There is no reason for you to go to the penitentiary for somebody else. A. I am not even thinking about that, sir. Q. Well, I am thinking about that, sir. A. I am telling you the truth so far as I know it. Q. Let us know the truth, if you will. This is the envelope you got in October of ’54 ('indicating) A. I believe that is the one, yes sir. Q. That is your testimony. A. To the best of my recollection, yes sir. . . . Q. Why would he send a check down to you when he had several thousand dollars in cash? He testified as much as $10,000 in his safe at his own home. Why would he send a check down to you to cash. Maybe you can answer that. A. I couldn’t say, sir. Q. Do you want to hazard an answer? It isn’t because you are lying, is it? A. No sir. I have cashed, many, many checks for Mr. Beck. Q. Mr. Beck would send his personal checks down to you to cash? Mr. Beck sat on that stand and testified he didn’t write two checks a year. A. I said checks made out to him and he would send them down, endorse them. Q. Isn’t there a bank right next door to your place of business? A. Yes. Q. But he would send them to you to cash out of some fund in the vault? A. He wouldn’t necessarily know I was cashing them out of that fund. Actually I could have cashed them out of the office generally, but there were some circumstances where I couldn’t. Q. Mr. Beck testified this morning all his checks were channeled through the B & B Investment Company. That is his testimony this morning, that he never bothered with financial matters, his wife took care of the home and all her expenses and everything else went through the B & B and he wrote maybe two checks a year, he wouldn’t even say that many. Is your testimony consistent with that, Mr. Verschueren. A. No. Q. It isn’t *532very consistent, is it? A. I am only telling you what is the truth. Q. You are telling the truth? A. Yes. Q. Are you saying Mr. Beck lied to us this morning? A. No sir, I wouldn’t say so. Q. One of you must be mistaken then, is that correct? When did you talk to Mr. Beck last about your testimony here on the stand? A. I have never talked to him about my testimony on the stand. Q. Have you talked to him about this money in the vault in the last few days? A. No sir. Q. You came in here cold and didn’t know what you were going to testify about, is that it? A. I had a fair idea. Q. You haven’t talked to Mr. Beck, Sr., in the past several days or several weeks? A. I have talked with him, but not about the money, no sir. Q. You didn’t talk about these envelopes in the safe? A. No sir, only that one time. Q. It dovetails pretty well with his testimony, doesn’t it, fortunately? A. I don’t know, sir. . . . Q. These checks you cashed for Dave Beck, Sr. How much were they? A. Oh, varying amounts. Not any of them very high. Q. How much? A. Mr........................., I can’t remember all those checks. Q. You are going to be here a long time remembering. You are just starting. When I get through with you Mr......................... is going to take over again. We don’t think you are telling the truth so we are going to stay with you for a while. How much did you cash checks for Dave Beck, Sr. for? ... Q. Do you deal in $500 bills? A. No sir, I don’t personally. Q. I have never seen one before. This is amazing. Somebody gives you a $500 bill and you have no recollection of it. You sit there and tell me somebody would give you a $500 bill and you wouldn’t remember who gave it to you. Is that your testimony? A. If they gave it to me personally? Q. If they came in- — if it came into your possession by reason of having cashed a check or something? A. Sir, the amounts are all I count, if I have the proper amount of money. Q. I realize that. Let’s not talk about that. Somebody handed you a $500 bill, didn’t they? A. Yes. Q. Who did, and under what circumstances. A. Well, as I say, the odds are— Q. Never mind the odds. We are talking about what the facts are. I am not interested in the odds. What are the facts? Who gave you the $500 bill? A. It probably came from the bank, yes. Q. Probably? A. It could have come over the counter. Q. Did you go to the bank and get those two $500 bills, or didn’t you? Did you or didn’t you? A. I don’t definitely recall, sir, whether I did or not. Q. You don’t know whether you went to the bank and got a $500 bill or somebody gave it to you. A. Whether it came over *533the counter, no, I don’t sir. Q. You expect these people [the grand jury] to believe you would come into possession of a $500 bill— . . . Q. You already said you probably went to the bank and got it. A. With the checks I cashed. Q. Why would you ask for a $500 bill in the bank? A. I probably didn’t ask for a $500 bills, but they may have given me one. Q. You accepted it? A. Yes. Q. You couldn’t cash a check with a $500 bill, when you got it. A. No sir. Q. Then— A. There was ample funds generally exclusive of this amount then I probably don’t think it would make any difference if I had $1,000. Q. Not what you think now, then, what did you think then when they gave you the $500 bill and who gave it to you and what went through your mind. Something went through your mind, mister. What went through your mind when you got the $500 bill and who did you get it from. Tell this jury who you got it from? A. Well, I must have gotten it from the bank, sir, or else it came over the counter in the— Q. Not what must have been done. What did you do? A. I— Q. I don’t care about probabilities. How and when did you get it? A. I definitely do not remember, sir, how I came into possession. Q. You want this jury to believe you can get a $500 bill and don’t know the circumstances under which you got it. I am 51 years old and I haven’t seen one of them yet. How old are you? A. 36. Q. How many of these $500 bills have you seen in your life? A. (No response) Q. Well, how many? A. I am trying to think, sir. Q. It isn’t very many, is it? A. Yes, considerable. Q. I thought you testified a little while ago you had only seen a few of them. You just got through testifying under oath you had only seen a few of them. Which time are you telling the truth? A. Well, sir, you are getting me so confused— Q. I am confused? A. No, but I am. Q. I don’t think the jury is confused. Why should you be confused, you are supposed to be sitting here telling the truth. A. Yes. Q. The truth will never confuse you, never. Where did you get that $500 bill, two of them. Where did you get them? Under what circumstances and from whom and how? A. They may have been originals— Q. I am not interested in may have been. How did you get them? Tell me when and where? A. I cannot tell you, sir, definitely how I got them. Q. Two $500 bills and you can’t tell how you got them, but you got both by your own testimony in the last three years? A. Yes sir. Q. But you don’t know the circumstances. A. No I don’t, no. These may be the original bills, sir, I don’t know. I don’t know. Q. I thought you said you went to the bank and got *534those bills? A. Just a moment, you said how did I come into possession of them. They may have been in the envelope originally. Q. Are you willing to testify now you never got those bills, they are the originals? A. No, I can’t say that, sir. Q. Is there anything that you can say definitely as you sit here this afternoon? Is there anything you can say definitely? A. Yes sir. Q. It will be a pleasant relief when that happens. . . . Q. Have you ever received a $500 bill from the bank without making a request for it? They don’t keep them in those tills, you know, at all. You can’t get a $500 bill from a teller because they don’t keep them there. Did you know that, sir? Did you know that, first. Answer that question. A. They are there if they have come in that day. Q. Did you know they don’t keep $500 bills at all behind those windows. They receive them and take them somewhere else. Did you know that? A. No sir, I did not. Q. You know it now. A. No, I don’t. Q. I am telling you now. They don’t keep them there. You can’t get a $500 bill without making a request for it, or a $1,000 bill, the most you can get is a $100 bill. Did you know that? From a teller’s window? A. No, I did not know that. Q. We are going to assume, just for the sake of . this discussion then, that is correct because I know it to be correct. That is what I have been told by people who know. A. Yes sir. Q. Now, we can get the banker in here and get the same banker you’ve got out there and I assume he is not an officer of the Western Conference of Teamsters or not a member of your union, is he, the banker out there where you bank? A. Pardon. Q. The bank you go to— what bank do you go to? A. Sixth & Denny Branch. Q. Mr. Beck doesn’t own that bank, does he? A. Not to my knowledge. Q. Well, assume the banker will come in and tell the truth, can we assume that? A. Yes sir. Q. He will tell us they don’t keep $500 bills in those windows. They don’t give them to Fred Verschueren Jr. when he brings in checks, they don’t give them to anyone under any circumstances unless they ask for them because when you present checks and you want cash the teller always says, ‘How do you want it, sir?’ Don’t they? They always say that to you every time, don’t they? A. They sometimes say, ‘Sir, do you care how you have it?’ . . . Q. Not on the payroll, so you wouldn’t get $500, you wouldn’t make that special request at the bank, so how would that $500 that came over thé counter ever get into the envelope? Under what theory could that possibly get in the envelope? That wasn’t your practice. You see, you told us your practice *535this afternoon, because you realized we wanted to see the envelopes, that you never went to them, you never took anything out and then you went to the union hall and came back and your memory was refreshed in the fresh air and you told us you cashed checks and paid payrolls at times with this money, but each time you would put a I.O.U. in there and then you would adjust it later. Go to the bank and get the money and put it back in here. Mr.............................. asked you about the $500 bill and you said you could have gotten it from the bank. 7/e are assuming now, because I know and I think you are pretty well in agreement, that you can’t get $500 bills unless you ask for them at the bank, that you couldn’t have got it at the bank, so the only possible way you could have received that $500 bill is that it is part of the original money that was put in there because you couldn’t have got it over the counter, because that isn’t your procedure. Nothing you got over the counter could have gone in that envelope. If it could, tell us how. A, Well, I did go through that originally. As I said, I would take monies from the box and— . . . Q. Mr. Verschueren, with reference to this envelope, Exhibit 77, this is the original envelope given to you by Dave Beck in October or November of 1954. This envelope was sealed when you first got it, this is Exhibit 77? A. Yes sir. Q. And you didn’t open it again until the early part of 1955. A. Sometime in 1955. Q. Around six months went by before you had occasion to go into it. When you went into it you saw this piece of paper in there. You saw this piece of paper, Exhibit 79 when you opened it with your finger and unsealed it? A. Yes. Q. Then you read the piece of paper. You did whatever you had to do with the money and you resealed it, is that right? A. I am not certain that I resealed it right at that time. Q. But it was resealed when the money was put back in. You always kept these envelopes sealed? A. Not always. Q. You resealed it at that time, after you put the money back, after the first transaction, the first part of ’55? A. I won’t definitely say I did, no. Q. When did you reseal it after the first transaction, the first time you opened it? A. I couldn’t tell you as to dates, sir. Q. Approximately when? A few months after? A. I couldn’t even approximate. Q. A year or two years after. Did you leave it open or what? You told Mr...................... this afternoon that you resealed it right after you opened it. This time you say you didn’t. Why do you hesitate? A. Well, because I — when you open an envelope innumerable times how do you know which time you sealed it and *536didn’t? Q. You told Mr............................you opened the envelope and resealed it. He questioned you at length about opening it with your finger and you would reseal it and then I think he went further and asked you whether or not you used any glue on it and you said no, and still when we have the envelope in this condition, it is stuck very well— and you are getting your two $500 bills back now, don’t miss that part on the record. Do I understand you told Mr......................... you resealed this, envelope each time that you opened it? A. Well— Q. Now, you didn’t, is that right? A. No, I didn’t every time. Did I say I resealed it every time? Q. I don’t think you said every time, you said you resealed it the times you opened it and put the money back and resealed it and Mr.........................was very, very interested, he asked you what kind of glue did you use glue and you said no you didn’t. A. I didn’t. Q. This must be excellent glue on the Western Conference of Teamsters envelopes because the thing is perfectly sealed now. Understand we can send the envelope to the F.B.I. and determine from them whether or not it has been resealed numerous times, or innumerable times as you said. You were in there innumerable times. You understand that, don’t you? A. Yes. Q. So if you decide all of a sudden here you are going to tell us the truth — and nobody in the room believes one word you say — you are telling us now that everything you have testified to here today is the truth? A. Yes sir. Q. You have nothing to hide? A. No sir. Q. And you are perfectly willing to undergo any sort of examination to determine if you are telling the truth, is that correct? A. Yes sir. Q. There is nothing at all that is going to stop you from proving what you said? A. No sir. Q. If I tell you now that I have arranged to give you a lie detector test, will you take it? A. I would have to consult my attorney. Q. Yes, that is what I thought, because you are not telling the truth, are you? If you were telling the truth you would have no qualms about taking a lie detector test because a lie detector will not work on a truthful person. It is an exceptionally fine machine, you can’t fool it and you are absolutely a perfect subject because you are young and you have your wits about you and you would fail miserably unless you are telling the truth. Will you take the test? A. I have heard differently about the lie detector. Q. Will you take the test? A. No, I will not. Q. You will not. You don’t have to consult your attorney do you? You don’t want to take any test, do you? A. I will consult him first. Q. But you won’t take any test, will you? Will you, now? *537A. I will consult him first. Q. Yes, that is what I thought. ..."Hunter, J.
(dissenting) — I dissent. In the instant case, it was not determined that the members of the grand jury were free from bias and prejudice. This is particularly significant in view of the atmosphere that existed toward the appellant in King county at the time the grand jury was impaneled.
One of the most basic concepts of a judicial proceeding is impartiality. This concept was announced as essential to a grand jury proceeding by both the legislature and the supreme court of this state, in the statutes and decisions cited in Judge Donworth’s dissent. Under the rule adopted by the majority, a grand jury may be composed of members who are biased and prejudiced. This rule constitutes such grave error that its application will literally shake the foundation of the judicial system of this state.
The grand jury proceedings should be vacated and set aside.
[En Banc. June 14, 1960]9
Upon rehearing of the matter, the per curiam opinion heretofore filed herein was, by order, adhered to by a constitutional majority of the court.
August 22, 1960. Petition for rehearing denied.
Prior to December, 1952, appellant was for many years president of the Western Conference of Teamsters, which covered eleven western states. He maintained his office in Seattle. In December, 1952, appellant became president of the International Brotherhood of Teamsters (a labor union having one and one half million members), which maintained its principal office in Washington, D. C. Thereafter, appellant continued to maintain an office in Seattle and held the official title of president emeritus of the Western Conference.
An advertisement by a local television station appeared in the newspaper stating that it would report the proceedings of the Senate *510Committee regarding appellant exclusively “live” on Wednesday, March 27, 1957. The advertisement showed the station was going to devote approximately 9-3/4 hours of that day’s programming to both reproductions of the Senate hearings and news comments thereon.
Appellant, in so doing, was exercising a right guaranteed him by the United States Constitution. See Hoffman v. United States, 341 U. S. 479, 95 L. Ed. 1118, 71 S. Ct. 814.
Two of the five prospective jurors excused by the court volunteered that they had been prejudiced by reading newspaper articles and seeing television broadcasts. Another was asked if he knew' appellant and he replied in the negative. This was the only instance of the court’s referring to appellant by name, although the court’s later reference to the president of the teamsters’ union undoubtedly was understood by the jurors to mean appellant.
Appellant, in assignment of error No. 27, asserts that unauthorized persons appeared before the grand jury, and contends that the indictment should be dismissed for that reason. In view of the conclusion I have reached on other assignments, I do not find it necessary to discuss No. 27.
The state has filed a comprehensive brief consisting of one hundred fifty pages containing the following answer to appellant’s argument regarding his right to an impartial and unprejudiced grand jury:
“Appellant asserts that the denial of his motion to set aside the indictment constituted error under our statutes and constitution and the constitution of the United States (App. Br. 35).
“Appellant cites . . . [citations omitted]. Except for citing the well-recognized, rule that grand furies should be impartial and unprejudiced (App. Br. 37), the cases are not otherwise applicable.” (Italics mine.)
At page 48 of the state’s brief, it is stated:
“It is patent that the indictment herein was endorsed ‘a true bill’ and signed by the foreman of the grand jury and that it was presented and marked ‘filed’ (Tr. 1). Thus, under the statute, the only grounds defendant could raise on a motion to set aside the indictment were those enumerated in subsections (3) and (4) of RCW 10.47.070 [sic RCW 10.40.070]. It is submitted that none of the other grounds enumerated in defendant’s motion to set aside and dismiss the indictment were provided for by our statutes.
“The grand jurors were selected, drawn, summoned, impaneled and sworn as prescribed by law. Defendant in his motions and affidavits made no allegation relating to the selection, drawing, summoning, impanelment and swearing of the grand jury except his assertion that the court took no steps ‘to exclude from the grand jury any person or persons who entertained an attitude of bias, prejudice and hostility toward the defendants by reason of knowledge’ of purported facts outlined by the defendant in his affidavit ‘or by reason of belief or opinion gathered from the widespread circulation of publicity with respect thereto’ and ‘no steps were taken to instruct or direct the grand jury to ignore or disregard the reports circulated . . . or to disregard any attitude or opinion which they might have formed as a result thereof.’ (St. 2140).”
During the iorty years preceding the calling of this grand jury, there had been only seven grand jury sessions in King county.
Reported in 353 P. (2d) 429.