¶1dissenting. In my opinion, the majority of this court has misconstrued the provisions of Code § 38-314, so as to make the phrase “inaccessible for any cause” modify “testimony,” rather than “witness.” That statute begins as follows: “The testimony of a witness, since deceased, or disqualified, or inaccessible for any cause. . .” (Emphasis supplied.) It is difficult to comprehend how “testimony” could become deceased or disqualified. It is obvious to me that the statute is referring to the inaccessibility of the witness, rather than of the testimony. This is the construction this court has already given this statute. See Tillman v. Fontaine, 98 Ga. 672, 677 (27 SE 149), citing McElmurray v. Turner, 86 Ga. 215 (12 SE 359); Cantrell v. Byars, 71 Ga. App. 287 (2) (30 SE2d 643) and cit.; Standridge v. Standridge, 224 Ga. 102, 103 (160 SE2d 377) and cit. Regardless of the construction given similar statutes by courts of other jurisdictions and regardless of the merit of such a provision, the meaning of our statute is plain, unambiguous and settled by case law; hence, any change in this regard must be effected by our General Assembly, rather than by our courts. The witnesses in the instant case were present in the courtroom; therefore, they were not “inaccessible,” so as to make their testimony given on the former trial admissible.
¶2Under the proper construction of the above Code section, therefore, witness Seay’s former testimony was not admissible because of his refusal to answer certain questions on the ground that they might incriminate him. Even if the admission of the former testimony at that point was justified under the majority’s construction of the statute, however, when the witness later testified as to substantially the same facts, the former testimony thereby became merely hearsay evidence.
¶3*624Blackwell was sworn in as a witness, gave his name and current place of confinement, refused to answer where he was living on the day of the murder on the ground that it might incriminate him and was then called down from the stand. On the next day he was recalled to the stand, where he again gave his name and residence (the State penitentiary). He again refused to answer as to his residence on the day of the murder on the same ground, as well as refusing to answer whether or not he had talked to any attorney since he had been in that area, whether or not he had talked to attorney Winfred Smith (whom he admitted knowing within the last few days), whether or not he had seen Smith in the courthouse that day, whether or not he had had an attorney in January, 1968, whether or not he had been advised of his rights, and whether or not he would submit to an oral examination, whereupon the court held him in contempt of court. The witness then answered that he declined to answer any questions which the State might ask him. The court stated that the witness could be asked more questions, but the State’s attorney said that he “wouldn’t know what to ask.” At this point, the witness’s former testimony was admitted in evidence over objection.
¶4The privilege against self-incrimination may not be asserted in advance of questions actually propounded. See Chastain v. State, 113 Ga. App. 601 (3) (149 SE2d 195) and cit.; charge approved in Wilbanks v. Wilbanks, 220 Ga. 665, 668 (141 SE2d 161); U. S. v. Harmon, 339 F2d 354 (C. A. Mich. 1964), cert. den. 380 U. S. 944 (85 SC 1025, 13 LE2d 963), reh. den. 380 U. S. 989 (85 SC 1330, 14 LE2d 282); 98 CJS 250, Witnesses, § 436; Modern Federal Practice Digest, Witnesses, Key no. 307 and cases annotated therein. “The propriety of a witness’ refusal to answer a question as incriminating depends on an examination of the particular question in the light of all of the surrounding circumstances.” (Emphasis supplied.) 98 CJS 257, Witnesses, § 437.
¶5Although witness Blackwell stated that he would not answer any more questions, both the court and the State expressly recognized the right, if not the duty, of propouunding additional questions to the witness, the only reason for not doing so being *625the State’s not knowing what to ask. Although it might appear to have been a useless technicality to require the asking of specific questions following the witness’ stated intention not to answer any questions, nevertheless, under the authorities above cited, this was the proper procedure. Unless the State propounds the same questions as were propounded at the former trial and invokes a ruling by the court on the witness’ assertion of privilege as to each individual question, the proper groundwork has not been laid for the admission of the former testimony, since it does not otherwise appear to which specific testimony the witness is asserting his privilege. All of the testimony may not be, or even be claimed to be, privileged.
¶6Thus, even if Blackwell’s former testimony would have been admissible under the majority’s construction of Code § 38-314 and a proper application to that statute of the Fifth Amendment privilege, nevertheless, the court still erred in admitting the former testimony before the State had obtained rulings by the court as to the privileged or unprivileged status of the specific testimony sought to be elicited. The exact above procedure is required to render the witness’ testimony inaccessible even under the majority’s construction of that Code section. I would reverse the judgment of conviction on this ground.