165 So. 582 | Ala. | 1936
Petitioner, who is also appellant, moved the circuit court to expunge from its records the report of a grand jury of Jefferson county in which petitioner and his official acts were criticized. That report stated that they failed to find evidence of such corruption as would warrant impeachment, but much evidence to show improper conduct in the management of the city's affairs, which they thought should be condemned in the strongest terms. No indictments were returned against petitioner, but he, as a city commissioner of Birmingham, was severely criticized by the report which went into much detail respecting his official conduct, which they thought was due to be, and was thus, condemned.
There is no question but that the circuit court had the power to expunge such report, if it should have been done. There are many cases reported in which such procedure was successfully prosecuted, and they will be here cited in connection with the propriety of such a report of the grand jury.
The only case in Alabama which deals with such a report is a suit for defamation against a newspaper for publishing the report. Parsons v. Age-Herald Publishing Co.,
It is made apparent in the later case of Peinhardt v. West,
On the other hand, where the question has arisen on direct attack, as here, with one accord, the cases hold that the officer when he is thus criticized has the right in such a proceeding as this to have the report expunged. In one case it is thus expressed: "While it may be observed that the court has tolerated, rather than sanctioned, such presentments of things general, yet the grand jury should never, under cover of a presentment, present an individual in this manner for, if it have legal evidence of the commission of the crime, it should find an indictment against him upon which he could be held to answer, and, if it have no such evidence, it ought, in fairness, to be silent." In re Gardiner,
A vast number of cases are to the same effect. In re Grand Jury Report,
We are clear that the petitioner had the legal right to have the report expunged, and that mandamus is the appropriate method of review, since this is not an adversary, but an ex parte proceeding.
If, upon being advised of this opinion, the trial judge shall refuse or fail to expunge the report of the grand jury here referred to, a rule nisi will be ordered upon the further application of petitioner.
Writ of mandamus awarded, conditionally.
GARDNER, THOMAS, BOULDIN, BROWN, and KNIGHT, JJ., concur. *506