I am of opinion that, for the reasons assigned by Mr. ■ Justice Ingraham, the indictment should have been dismissed ; but I do not agree that a trial thereon may be perpetually stayed by a writ of prohibition. Mor do I assent to the view that the denial of the motion is not appealable before the trial upon the indictment. It is to be borne in mind that the motion is not upon a statutory ground prescribed by section 313 of - the Code of Criminal Procedure, but upon the ground that the constitutional rights of the defendant have been violated. (People v. Glen, 173 N. Y. 395.) Where extrinsic proof of such violation of rights is made, I think the defendant has a right of appeal before trial through to the Court of Appeals, at least, if not to the Supreme Court of the United States. If the indictment were void upon its face, then the writ of prohibition would be an appropriate remedy ; but the difficulty in the present case is that on its face the indictment appears to be regular and valid. The mere fact that the name of the defendant is indorsed upon it as a witness does not invalidate it, because for aught that appears he may have become a witness at his own instance or have Waived his constitutional rights. We have, therefore, an indictment regular and valid in form found by a duly constituted grand jury. Until that indictment is judicially declared invalid upon evidence dehors the record showing its invalidity, it cannot be said *608that the court is proceeding without jurisdiction in bringing the defendant to trial thereon. In other words, an indictment regular and valid in form cannot be annulled by a writ of prohibition. With these suggestions, I concur fully in the opinion of Mr. Justice Patterson and also in the opinion of Mr. Justice McLaughlin, with the exception that I do not agree with the intimations contained therein that the motion to dismiss the indictment was properly denied.