¶2I concur in the majority wherein it holds that this trial court did not commit error in denying the defendant’s pre-trial motion for production of grand jury testimony. However, for the sake of aiding in the continuity of the law presently governing discovery in the area of criminal law, I would point out that after his pre-trial motion was denied, the defendant did not seek to lay a proper foundation during trial and exercise his right to obtain available statements of trial witnesses made before the grand jury, afforded him by this Court in Antrobus v. State (1970), 253 Ind. 420, 254 N. E. 2d 873. Appellant in his brief cites the Antrobus case and Bernard v. State (1967), 248 Ind. 688, 230 N. E. 2d 536, and admits that neither of these cases affords him the right to pre-trial production of statements made before a grand jury, but argues that in light of these two cases, and the following quotation from Johns v. State (1968), 251 Ind. 172, 240 N. E. 2d 60, the trial court should have exercised its inherent power to implement the techniques of discovery applicable to civil proceedings, in criminal cases, since in his opinion it was necessary to providing the defendant with a full and fair hearing:
“The purpose of the Bernard doctrine is to insure justice and fairness in criminal proceedings, and it is axiomatic that an accused is not justly and fairly tried when his counsel is compelled to maneuver in a factual vacuum. Nor is fairness and justice enhanced when convictions are gained through surprise, or by the prosecution misleading the defense.”
¶3I believe the trial court had the power to permit the pre-trial examination by defense counsel of grand jury testimony, upon the laying of an Antrobus-type foundation tailored to the pre-trial situation. However, the trial court decision not to exercise that power in this case does not constitute error.
¶4Note. — Reported in 269 N. E. 2d 371.