¶1Dissenting Opinion by
¶2I am unable to agree with the majority opinion and, therefore, dissent.
¶3At the time the court below considered the motion of the defendant, the averments in support thereof were not denied, the Commonwealth had in effect demurred. Therefore, if the averments taken as true were sufficient in law, the motion to take testimony should have been granted.
¶4The averments clearly present the case of the defendant. He claimed privilege under Art. I, sec. 9 of the Constitution of Pennsylvania when called to testify before an investigating grand jury, but by authority of Art. 3, sec. 32 he was compelled to testify despite claim of privilege.
¶5Art. 3, sec. 32 of the Constitution provides: “Any person may be compelled to testify . . . against any person who may be charged with having committed the offense of bribery . . . and shall not be permitted to withhold his testimony upon the ground that it may criminate himself or subject him to public infamy; but such testimony shall not aftemoards be used against him in any judicial .proceeding, except for perjury . . .” (Italics supplied.) The prohibition of the Constitution does not attempt to provide complete immunity for one compelled to testify. The prohibition is only against the’ “use” of such testimony as is compelled. • However, the provision is not mere surplusage and whatever the extent of the protection the Constitution affords, one *62compelled to testify is entitled to it. If the compelled testimony were read to or made available to the grand jury as evidence against the defendant, it cannot be maintained that such action is not a violation of the Constitution. It is using the testimony against him. The proceedings of the indicting grand jury are a judicial proceeding. To hold otherwise is to place an unduly restricted construction on both the terms “used against” and “judicial proceeding”.
¶6Whether or not there was other evidence presented to the grand jury does not alter the fact that the presenting of the compelled testimony was a direct contravention of the constitutional prohibition. Whether or not the jurors were influenced by the presence of such prohibited testimony is immaterial, its presence denies the defendant a constitutionally guaranteed privilege. Had there been a trial and a conviction and the same testimony presented against the defendant, the conviction could not stand notwithstanding the fact that other sufficient evidence might have supported the verdict. The breach of a constitutional right would have vitiated the proceeding.
¶7Since the Commonwealth has not denied the averments but in effect has demurred, it does not seem proper to assume that if testimony was presented it could not be presumed to be criminating. On the contrary, since there has been no denial it would seem that it must be presumed that such testimony was criminating. Apparently .the framers of the Constitution so considered it since its use was proscribed for any purpose except for prosecution for perjury in testifying. If the defendant’s constitutional rights were invaded in the proceeding which resulted in his being indicted there is no more reason for- upholding the indictment than there would be for upholding a conviction obtained in a proceeding where the same thing had occurred. *63The question of law should have been answered then in the defendant’s favor and testimony taken to determine if in fact such averments were true.
¶8The cases that express a reluctance to inquire into the secrecy of the grand jury all provide that under some circumstances it may be proper to do so. Indictments have been quashed for reasons comparatively technical. No case has gone so far as to say that the breach of a constitutional prohibition is not an injustice that the court has no power to correct. The requirements set forth by the Supreme Court with respect to proper pleading are fully met; there is no doubt as to defendant’s position and contentions — but no court has answered them. There are admittedly a number of occasions when the testimony of a grand juror is proper. Since the purpose here would be to testify as to what was before the grand jury and not what they (or he) thought of it, there would be no impeachment of his own verdict. He would be called to testify as to an occurrence and not as to why a decision was reached. Since the defendant was a witness he can waive any right he as an individual might have to the benefit of the secrecy rule. The jurors will not be prejudiced as there is no attempt to disclose their deliberations nor to direct a charge of misconduct against them. The Commonwealth is never prejudiced Toy a proceeding undertaken to assure protection of a fundamental right inhering in a citizen charged with a serious offense.
¶9I would reverse the orders of the court below and make absolute the rule to take testimony to determine whether the averments1 of the affidavit of the grand juror, Paul Normandy, are true. If they are, in my opinion, it is clear that the defendant’s constitutional rights were violated.