(dissenting).
I respectfully dissent from the majority opinion, holding that the majority rule as stated in Bennett v. Kalamazoo, Circuit Judge, 183 Mich. 200, 150 N. W. 141, “is the sound and the fair rule to follow”, but finally repudiated it on the ground that Mrs. Hayslip initiated the proceedings before the grand jury and was “in no position to object to the result of the investigation.”
It must have been gratifying to the patrons of the school, and the public generally, that the charges of immorality were without justification. But the conclusion reached by the majority is unsound in principle in that grand juries henceforth are permitted to defame any person who may suggest that acts of immorality are being committed in the community. Every citizen who now voluntarily goes before a grand jury and undertakes to give it any information relating to criminal misconduct does «o at the peril of being defamed in an official report when the evidence is not deemed sufficient upon which to base an indictment.
In the case at bar it would have been within the province of the grand jury to say in its report that Mrs. Hayslip testified to no fact that warranted the return of an indictment, and as a result of an independent investigation, no evidence of immorality was obtainable. But it was not permissible to include in its report a statement that she “viciously maligned” the school and was rendering “a disservice to the community” as a teacher in the school.
I do not question the right of the grand jury to investigate the condition of jails, penal farms, and numerous county institutions and agencies with the purpose in view of recommending changes for their improvement as well *652as to indict those who are shown to be guilty of any criminal offense. Code ¡Section 11584 makes it their duty to do so. But, not having found an indictment against any official, or employee connected with any institution or agency so investigated, it has no authority to single out any individual and make a report as to his or her moral character or otherwise hold them up to public scorn. Such a report is extra-judicial and has no place upon the records of the Criminal Court.
I fully agree with what is admittedly the majority rule and which is quoted in majority opinion: “They (Grand Jury) will not be permitted to single out persons in civil or official positions to impugn their motives, or by word, imputation or innuendo hold them to scorn or criticism. ’ ’
In 24 Am. Jur., Section 36, page 859, it is said: “It is the right of a person censured or criticized by a report of the grand jury to have it expunged from the record. ”
The sound reason for expunging from the record the report of the grand jury in the instant case is clearly stated by the New York County Court, as follows: “To single out an individual, not by reason of any acts in public office, not by reason of any acts as a public official, and to condemn him without a trial, without an opportunity to be heard, without the privilege of making a defense in a free American court of justice, to attempt to deprive him of his good name, to besmirch his character, is so unfair, so repugnant to the ideals of the administration of justice in America, as to merit the disapproval of this court.” In re Healy, 161 Misc. 582, 293 N. Y. S. 584, 602; 120 A. L. R., pp. 440-441. See also In re Grand Jury Report in Baltimore City, 152 Md. 616, 137 A. 370.
"While it may be true generally that the matter of expunging a grand jury’s report is within the sound discretion of the trial court, nevertheless it is not discre*653tionary where the report is defamatory of witnesses and no indictment is found. No court is ever so high and mighty that the law clothes it with discretion to say when a grand jury may defame a witness in its official report.
I entertain the highest respect for the learned trial judge. But I cannot do otherwise than disagree with him and dissent from the majority opinion.