The opinion
John I. Purtle, Justice, dissenting. I again respectfully dissent. It is my opinion that the elected prosecuting attorney did in fact disqualify himself in this case. True, there was no formal pronouncement that he could not in good conscience prosecute the case against the named defendant. The defendant had previously been charged in the same matter and bound over by the municipal court. The prosecuting attorney had refused to prosecute. I think the prosecutor was right from what the record reveals in the case. He also stated he would not prosecute if the grand jury returned a true bill. His position was not contrary to the law and justice. After all, it is the duty of the prosecutor to protect the innocent as well as to prosecute the guilty or those who at least appear from the circumstances to be guilty. Perhaps the circuit judge should have made a definite determination about the matter before appointing a special prosecutor but he did not. I think he was so closely associated with the facts of the case that he took it for granted that the prosecutor had in fact disqualified in the particular case.
The action of the grand jury vindicated the prosecutor’s position that the whole affair was based upon the antithetical conduct of a certain political figure. The injustice to the subject of the grand jury investigation and the enormous expenses to the citizens and taxpayers are matters to be regretted. The prosecuting attorney stated he was not going to prosecute the subject if he were indicted. He could hardly be expected to press vigorously for an indictment. As a result of the appointment the matter was thoroughly investigated and laid to rest insofar as possible. I believe we should, in the limited circumstances of this case, affirm the trial court.