(dissenting):
The petitioners in these two cases were charged with the crime of rape and after a preliminary hearing before the City Court of Salt Lake City, which included exculpatory testimony by the petitioners, the charges were dismissed. Later, upon presentation of evidence to a grand jury, it indicted each of them for that crime. They each filed motions to quash, which were *600denied by the trial eourt. They thereupon filed their petitions in this court seeking to restrain further proceedings against them and to quash the- indictment.
Their petitions are based upon the grounds: (1) the grand jury record does not show any of the exculpatory evidence given on their behalf at the preliminary hearing which had resulted in the dismissal of the charges by the committing magistrate; (2) they aver that there is a total lack of evidence which would implicate petitioners in the crimes charged.
They also contend that the affidavit of William Hyde, the prosecuting attorney for the grand jury, should be stricken because it was filed after the filing of this petition and is not part of the grand jury record.1 To strike that affidavit would withhold from this Court what did occur regarding the information given to the grand jury. This is an original proceeding in this court and the averments of Mr. Hyde have the same dignity as the averments of the petitioners. Particularly so when the affidavit stands unrefuted. The motion to strike is not well taken; and we should consider the entire facts as shown to this court.
Section 77-23-3, U.C.A.1953, provides the only grounds on which an indictment can be quashed, and it will be seen that none stated therein justify dismissal of these actions.
Petitioners argue that their exculpatory evidence was withheld from the grand jury record; and that under the reasoning of Johnson v. Superior Court of San Joaquin County,2 the writ should be granted and the indictment dismissed. The Johnson case stands for the proposition that when the district attorney seeking indictment is aware of evidence which reasonably tends to negate guilt, he has the obligation to inform the grand jury of its nature and existence so they may exercise their power to order the evidence produced. California Penal Code 939.7 is equivalent to 77-19-4, U.C.A.1953, which states as follows:
The grand jury shall not be bound to hear evidence for the defendant; but it is their duty to weigh all the evidence submitted to them, and when they have reason to believe that other evidence within their reach will explain away the charge, they should order such evidence to be produced, and for that purpose may require the prosecuting attorney to issue process for the witnesses.
This statute clearly indicates that the grand jury has the prerogative of ordering evidence produced if they have reason to believe it will explain the charge; but there is no requirement that they hear evidence for the defendant. The holding in Johnson, supra, implies that there is an obligation on the part of the prosecuting attorney to call such evidence to the attention of the grand jurors so that they can ask for further evidence if they choose to do so. In that case, the district attorney knew that exculpatory testimony existed but failed to so inform the grand jury. This was deemed sufficient for the court to grant the prohibition, but it was' granted without prejudice so that the district attorney could seek another indictment if he so desired.
In the instant case, there was no failure on the part of the prosecuting attorney to bring exculpatory evidence to the attention of the grand jury. Mr. William Hyde told the grand jury about the preliminary hearing and the dismissal of the complaint against the petitioners after hearing their exculpatory testimony. It was then the prerogative of the grand jury to ask for further evidence in the form of the preliminary hearing transcript, or calling other witnesses, including the petitioners herein, but it chose not to do so, as is its privilege under 77-19-4, U.C.A.1953. The problem here arises because the statement of Mr. *601Hyde was not included in the grand jury record and petitioners claim they are prejudiced thereby.
The statement given by Mr. Hyde is shown by his affidavit. There is no reasonable basis to believe the affidavit untrue, or that the statement of Mr. Hyde (or a lack thereof) would have altered the outcome of the grand jury investigation. The testimony given by the victim was sufficient to. raise a question for the trier of fact. A grand jury indictment is merely a preliminary determination based on reasonable grounds. The petitioners are not precluded from introducing any exculpatory evidence1 they wish to produce at the trial, whether or not it was reported in the earlier grand jury record. It therefore, cannot be said that petitioners’ rights have been substantially prejudiced.
It is not necessary that the evidence considered by the grand jury in handing down an indictment be conclusive, only that it be sufficient to show reasonable grounds for binding over the accused for trial. This Court has held that the sufficiency of the evidence to justify holding the accused to answer cannot be raised by a motion to quash the information.3 Further, even though Mr. Hyde’s statement to the grand jury is not in its record, that fact is also not grounds for a motion to set aside the affidavit or to quash the indictment because neither is permitted by the statute.4
The Bill of Particulars was consistent with the indictment and contained nothing which would indicate there was a total lack of evidence against plaintiff, Salm. Therefore, the ground claimed by Salm under 77-23-3, U.C.A.1953, should fail. The victim’s verbal description reported in the Bill of Particulars was sufficient to cause the police to suspect Salm who was in the employ of Strehl (who had already been positively identified by the victim). The association of Salm and Strehl, together with their admissions of having been with the' victim on the date of the alleged crime, adds to the sufficiency for submission to a jury.
As to the tape-recorded telephone conversation objected to by petitioner, Strehl: Its admissibility of any tape-recorded conversation can be dealt with by the Court if and when offered at trial.
A grand jury having returned indictments charging each of these plaintiffs with the crime of forcible rape, I know of no lawful reason, and have been shown none, why they should not be left to whatever procedures are available to them in the District Court, including a trial by a jury, or the court, as the petitioners choose. Under our system the main purpose and value of the grand jury is as a standby procedure that can be resorted to when the regular law enforcement processes fail to function. An arbitrary dismissal of a charge because of an irregularity should not be allowed unless the defendant suffers a substantial prejudice to his rights and is deprived of a fair trial under due process of law.5
The issuance of this writ by this court represents a willingness on its part to prejudge the disputed evidence in these cases, a prerogative which rightly belongs only to the jury, or the trial court, and is thus a wholly unjustified interference with the processes of law; and it effectively deprives the prosecution, representing the interest of the public, of the opportunity to so proceed with these cases in an orderly manner. For those reasons I think it is entirely unwarranted to interfere with the processes of law in the lower courts by issuing the writ.6
Petitioners should be left to their asserted meritorious defenses and the regular course of procedure; and then, if upon a trial they are convicted, they can appeal and attack any errors or improprieties they believe have occurred. Accordingly, their *602petitions for extraordinary writs should be denied. But in view of the fact that the Writs are being granted, it should be observed that the defendants have not yet been in jeopardy and that the prosecuting attorney, if he deems it advisable, may proceed with another prosecution.
ELLETT, J., concurs in the views expressed in the dissenting opinion of Mr. Justice CROCKETT. WILKINS, Justice:Justice TUCKETT having acted on this case before leaving the court, I do not participate.
. When the writs were filed in this Court, Mr. Hyde filed an affidavit wherein he stated that he personally informed the grand jury of the exculpatory evidence, but that the reporter only recorded the evidence given by the witnesses and, therefore, the record did not reflect fully the facts as given to the grand jury.
. 15 Cal.3d 248, 124 Cal.Rptr. 32, 539 P.2d 792 (1975).
. State v. Crank, 105 Utah 332, 142 P.2d 178 (1943).
. U. S. v. Cutler, 5 Utah 608, 19 P. 145 (1888); 77-23-3, U.C.A. (1953).
. Section 77-42-1, U.C.A. (1953).
. That this Court should be reluctant to interfere with procedure in lower courts see, Atwood v. Cox, 88 Utah 437, 55 P.2d 377.