Ex parte Faulkner

• Decision Date: 20 October 1952
• Docket Number: No. 4-9870,4-9870
• Parties: Ex parte FAULKNER et al.
• Court: Arkansas Supreme Court

Page 822

251 S.W.2d 822

221 Ark. 37

Ex parte FAULKNER et al.

No. 4-9870.

Supreme Court of Arkansas.

Oct. 20, 1952.

J. C. Cole, Malvern, for petitioners.

MILLWEE, Justice.

This is a petition by J. H. Faulkner and L. Q. Coleman to expunge from the records of the Circuit Court of Hot Spring County a certain grand jury report critical of petitioners.

The record reflects that a special session of the Grand Jury of Hot Spring County was called September 10, 1951 at the written request of four of the five-member board of the Malvern School District for the purpose of investigating school affairs. On September 11 a 'Partial Report of Grand Jury' was received by the circuit court and spread upon the records. It states: 'On the first day, the Grand Jury listened to statements made by fourteen witnesses. Among other facts which were brought to light as the result of the questioning of these fourteen persons are that

'The Grand Jury finds that Hershel Faulkner, a member of the Malvern School Board, has made irresponsible statements in which he charged a member of the Malvern faculty with sex perversion, and upon this accusation sought the discharge of the faculty member.

'After examining the fourteen witnesses, including Mr. Faulkner and the other members of the school board, the Grand Jury finds that the charge made by Hershel Faulkner has served only to disrupt and retard the administration of affairs of the public schools of Malvern.

'The Grand Jury further finds that accusations made by Faulkner were based on an affidavit made by a patron of the Malvern School District which was made by him as the result of information given him by Quentin Coleman, a discharged member of the Malvern faculty. This patron, who also appeared before the Grand Jury, declared that the accusations made by him in the affidavit were later found by him to be untrue in view of an investigation he made on his own initiative. The Grand Jury after completing their own comprehensive examination finds that these charges are without foundation in fact, utterly false, and were conceived by Coleman out of whole cloth and implanted by him in the mind of the patron for the sole purpose of obtaining the discharge of the faculty member.'

On September 12 a Malvern newspaper published separate statements by petitioners criticizing the publicized report and inviting the grand jury to indict them if the findings contained in the report were true. On September 13 the circuit court ordered separate citations against petitioners for contempt of court. The grand jury returned separate indictments against petitioners on September 18 for libel of the grand jury in connection with the publicized statements made by petitioners in response to the grand jury report. The contempt of court charges were ordered dismissed by the circuit court on November 19 because petitioners had been indicted for the same statements which occasioned the contempt charges in the first instance.

Petitioners filed their joint motion in circuit court to expunge the partial grand jury report from the record on November 27. On January 8, 1952 the circuit court entered an order denying the motion to expunge. The charges against petitioners for libeling the grand jury were dismissed on motion of the State over petitioners' strenuous objections on January 16, 1952. The record is brought here by certiorari to review the action of the circuit court in denying the motion to expunge.

Our Constitution, Art. II, § 8, provides that a grand jury may proceed by presentment or indictment. The legal definition of a presentment is stated as follows in State v. Cox, 8 Ark. 436: 'A presentment, properly speaking, is the notice taken by a grand jury of any offense, from their own knowledge or observation, without any bill of indictment laid before them at the suit of the government; upon such presentment, when proper, the officer employed to prosecute, afterwards frames a bill of indictment, which is then sent to the grand jury, and they find it to be a true bill. 4 Bl.Com. 301. 2 Bouv. Law Dict. Rawle's Third Revision, Presentment, p. 2675.' It is clear from the record in the case at bar that the grand jury had no intention of returning an indictment against petitioners based on the matters set out in the grand jury report. Hence, the report does not constitute a true common law presentment. Proceeding by presentment as the term was understood at common law has largely fallen into disuse in recent years although many courts still apply the term to grand jury reports whether or not such reports are intended to be followed by an indictment.

Although there is no specific statutory authority for grand jury reports in this State, it has long been the custom and practice for grand juries to make written reports to the court concerning their investigations. Grand juries are clothed with broad inquisitorial powers and the power to investigate should necessarily include the right and duty to report the result of such investigations. So long as grand jury reports relate to general conditions affecting the public welfare and without reflecting specifically upon the character, or censuring the conduct, of individual citizens they serve a wholesome purpose and are frequently followed by beneficial results to the community.

Looking to the report involved in the instant case, we note that the grand jury did not merely accuse or charge petitioners with certain acts but actually found them guilty of such misconduct as would have fully warranted their indictment for slander, which is a felony under our statutes. ¹ The question then arises as to the right of petitioners to expunge a grand jury report containing findings which would have warranted their indictment for slander where no such indictment is returned or intended.

Most of the reported cases bearing on the question involve the right of a grand jury to make a report criticizing public officials where the accusations are not such as to charge a criminal offense. Certain sections of our Criminal Code dealing with the duties and scope of inquiry of the grand jury ² are identical with those of New York where numerous cases have arisen on the question. In denying the motion to expunge the trial judge relied on the cases of In re Jones, 101 App.Div. 55, 92 N.Y.S. 275, appeal dismissed 181 N.Y. 389, 74 N.E. 226, and In re Healy, 161 Misc. 582, 293 N.Y.S. 584. In the Jones case the New York Court refused to expunge the report of a grand jury censuring public officials for improper performance of their duties although an indictment did not or could not have followed it However, Judge Jenks, in the majority opinion, stated: 'I think that if under the guise of a presentment, the grand jury simply accuse, thereby compelling the accused to stand mute, where the presentment would warrant indictment so that the accused might answer, the presentment may be expunged; but I do not think that a presentment as a report upon the exercise of inquisitorial powers must be stricken out if it incidentally point out that this or that public official is responsible for omissions or commissions, negligence or defects.' [101 App.Div. 55, 92 N.Y.S. 277.]

A strong dissenting opinion was written by Judge Woodward in the...