Gill v. State ex rel. Mobley

Paul Ward, Justice. This is a Petition for a Writ of Certiorari challenging the power of a Prosecuting Attorney to sit as a Grand Jury. The Circuit Judge of Faulkner County, on March 25, 1967, held the Prosecuting Attorney had this power. The facts out of which this issue arises are summarized below. Lucy Gill and ten other citizens of the county (petitioners) were subpoenoed to appear before the Prosecuting Attorney to testify regarding an investigation of alleged violations of the election laws during the election in 1966 in said county. Petitioners appeared as directed, but their attorney was not allowed to be present. Then the Prosecuting Attorney directed petitioners to appear before the Circuit Judge in order to determine their .rights. Petitioners and their attorney appeared as directed. It was then that the judge entered an order which, in material parts, reads: (1) The Prosecuting Attorney has a right to sit as a grand jury. (2) A witness does not have a light to counsel in the room inasmuch as the prosecution is sitting as a grand jury. (3) Petitioners will appear before the respondent on March 28, 1967, and answer all questions except those that would or would 'tend to incriminate them. Later, petitioners refused to answer questions asked by the prosecuting attorney in the absence of their attorney. The issue. Stripped of all nonessentials, the only issue involved here in whether petitioners had the right to have their attorney present while being examined by the proseenting attorney. The issue is so limited because petitioners concede that, the prosecuting attorney has the right to subpoena, swear in, and question witnesses, and “sit as a grand jury” in many other respects — in fact, in all respects claimed by the respondent, except to deny them the presence of an . attorney of their choice when being questioned during an investigation. The question here involved is one of first impression, in this Court. There is no statute or constitutional provision which says plainly an attorney can be, or cannot be, present in a situation here involved. We must, therefore, seek an answer to the question by considering the implications to be drawn from certain statutes, provisions of the constitution, and judicial pronouncements presently mentioned. In 1936 the people adopted Amendment No. 21 to the Constitution which reads: “All offenses heretofore required to be prosecuted by indictment may be prosecuted either by indictment by a grand jury or information filed by the Prosecuting Attorney. ’ ’ In 1937 the legislature implemented Amendment No. 21 by Act 160, being Ark. Stat. Ann. §§ 43-801 to 804 (Repl. 1964), Section 43-801, which in material parts, reads: “The prosecuting attorneys and their deputies shall have authority to issue subpoenas in all criminal matters they are investigating; and shall have authority to administer oaths for the purpose of taking the testimony of witnesses subpoenaed before them; such oath when administered by the prosecuting attorney or his deputy shall have the same effect as if administered by the foreman of the grand jury.” Respondent cites Ark. Stat. Ann. § 43-908 (Repl. 1964) which reads ; “The grand jury has power, and it is their duty, to inquire into all public offenses committed within the jurisdiction of the court in which they are impaneled, and to indict such persons as they find guilty thereof. ’ ’ Also cited by Respondent is Johnson v. State, 199 Ark. 196, 133 S. W. 2d 15, where, among other things, we said: “The prosecuting attorney of a county is a quasi-judicial officer. The law has intrusted him with power, upon what he deems sufficient cause, to institute proceedings. He takes the place of a grcmd jury; and as the law imposed upon the grand jury the duty of determining whether or not sufficient (cause) had been shown to justify an indictment against the accused.” Cited also is Taylor v. State, 220 Ark. 953, 251 S.W. 2d 588, as saying the subpoena power was necessary in order for the prosecuting attorney to properly prepare criminal cases. Also, Respondent appears to rely on Ark. Stat. Ann. § 43-2004 (Repl. 1964), but, at most, that section merely gives the prosecuting attorney power to coerce the attendance of witnesses at a hearing, and force them to testify “in all prosecutions.” A careful study of the above statutes together with other authorities cited and examined, and ba,sed upon our own research, leads us to the conclusion that petitioners, in this instance, had a right to have their attorney present. Set out below are reasons on which this conclusion is based. It must be conceded — it is not argued to the contrary — that a person has a common law right to be represented by counsel at any and all times unless this right is taken away by statute. That right is taken away by statute when a person appears before a grand jury. This right has not been taken away by any statute when one is called before a prosecuting attorney. Therefore if this Court takes that right away it mast he done by implication — i.e. we must read snch implication into Amendment No.. 21 or into Ark. Stat. Ann. § 43-801 (Repl, 1964). This we are unwilling to do, especially since we must give the statutes a strict construction. In the case In Re Kelley, 209 Tenn. 280, 352 S. W. 2d 709, a similar issue was under consideration, and the Court said: “Such a statute, in derogation of the common law, and so drastic as to lend itself to oppression, should be strictly construed and should not be extended by construction beyond its plain language.” It takes little imagination to foresee the oppression that could result if prosecuting attorneys are given the power here sought by the Respondent. It is argued that to give this power to prosecuting attorneys would save money for the state and counties. That may be, and must be, conceded, but that result is a far cry from a sound reason for depriving an individual of his common law rights. Nowhere is it even argued that a prosecuting attorney cannot efficiently prepare for and issue an information without denying the presence of an attorney requested by a witness. It is significant to us that the legislature saw fit, by statute, to specifically exclude a witness ’ attorney before a grand jury, but it did not choose to apply the restriction to hearings before a prosecuting attorney. If this is ever done it should be done by the legislature and not this Court. It is, therefore, our conclusion that the petitioners ’ request for a Writ of Certiorari should be, and it is hereby, granted. Harris, C. J. and Byrd, J., dissent. FoglemaN, J., concurs.