Dissenting Opinion by
Watkins, J.:I respectfully dissent from the order of the majority quashing this appeal on the ground that it is interlocutory and that under the case of Commonwealth v. O’Brien, 389 Pa. 109, 132 A. 2d 265 (1957), it is not an appealable order.
I do not believe that the Supreme Court in the O’Brien case decided any such thing. It has always been the general rule that “unless a bill of indictment is defective on its face, when a defendant moves to quash an indictment prior to trial, and his motion is denied by the trial court, the court’s order is interlocutory and hence not appealable.” We have sustained that general rule in a multitude of cases.
Similarly we have held that appeals from orders denying a new trial and from suspended sentences are interlocutory and not appealable. Commonwealth v. Elias, 186 Pa. Superior Ct. 137, 140 A. 2d 341. But an exception is made where circumstances are unusual and justice requires the exercise of appellate review at an intermediate stage of the proceedings. Commonwealth v. Fox, 181 Pa. Superior Ct. 292, 295, 296, 124 A. 2d 628. As was well said by Mr. Justice SCHAFFER, speaking for the Supreme Court in Commonwealth v. Trunk, 311 Pa. 555, 565, 167 Atl. 333, 337: "While it *557may be true generally that appeals may not be taken in criminal proceedings where judgment of sentence has not been passed, this rule should not be one of universal application. There are instances where great injustice would thereby be done to defendants.” Speaking of the exception of the rule that an appeal may be had only from judgment of sentence, President Judge Keller said, in Commonwealth ex rel. Paige v. Smith, 130 Pa. Superior Ct. 536, 542, 198 A. 812, 815: “The extent of that modification has not been exactly stated, but it should be applied to cases where the quashing of such an appeal might work injustice to the defendant.” For a review of the exceptions see Commonwealth v. Elias, supra.
The leading case deciding that an appeal will lie after indictment and prior to trial when exceptional circumstances indicate the invasion of substantial legal and constitutional rights, is Commonwealth v. Kilgallen, 379 Pa. 315, 108 A. 2d 780. Here the appeal was allowed to prevent injustice. Mr. Justice Chidsey, speaking for the Supreme Court at page 320, said:
“The Commonwealth contended in the Superior Court and contends here that no appeal lies from the refusal of a motion to quash an indictment. It is certainly true, as stated by the Superior Court, that ordinarily a defendant charged with crime does not have the right of appeal before his trial and conviction nor thereafter until final judgment and sentence. However, the Superior Court held that there may be exceptions to this rule, citing Superior and Supreme Court cases, inter alia, Commonwealth v. Trunk et al., 311 Pa. 555, 167 A. 333, where at p. 565 it was stated that the rule `. . . should not be held one of universal application.', and Commonwealth v. Ragone, 317 Pa. 113, 176 A. 454, where this Court at p. 126 said: `. . . But this rule has, in exceptional cases and to safeguard basic *558human rights, been construed as not being one of unyielding inflexibility.’. The Superior Court went on to say: ‘In our view the question of the validity of the indictments in these cases is one which under the circumstances should be decided in limine with finality. The nature of the charges affects the public interest, and the grounds for appellant’s claim of immunity, provide the exceptional circumstance which justify v. in entertaining the appeals in these cases.’. We are not disposed to disagree with this conclusion.”
The matter is as simple as this: the Supreme Court in the Kilgallen case held that to prevent injustice the appeal should be heard, while in the O’Brien case, the facts did not take it out of the general rule. Certainly the pronouncement of the Supreme Court in the O’Brien ease did not decide that where an individual’s fundamental, legal or constitutional rights are violated, that in order to protect them, he is denied an immedial. remedy but must assume the burden and expense, the mental and physical anguish, the public disgrace of a trial and must be found guilty and sentenced, before he has a remedy. Justice Musmanno, who filed a vigorous dissent in the O’Brien ease, feeling that the appeal did lie, said at page 116: “The Majority of this Court is of the impression that the Superior Court should have quashed the appeal to that Court and not have discussed the merits at all. I believe it was very necessary to discuss the merits which the Superior Court did in a very capable fashion. I only regret that it did not then quash the indictment on the basis that the lower Court failed in its duty to consider the matter before the horse was stolen, instead of considering it after the defendant’s rights had been taken away on that horse’s back.”
In the case before v. the defendant complains that the indictment is void in that it was not signed and *559presented to the grand jury by the District Attorney, but by the Attorney General who, it is alleged, was conducting the prosecution without validly superseding the District Attorney, and, more important, that there were unauthorized discussions among the members of the grand jury and investigation of members of the grand jury by the Pennsylvania State Police before the indictment of this defendant was found by the said grand jury.
The defendant makes a point that the indictment is not regular on its face in that it is so signed as an additional reason why this case does not fall within the reasoning of the O’Brien case.
I believe that this is the kind of case where fundamental rights of the defendant are involved; that it does fall within the meaning of the exception, and that in order to do justice, the petition to quash should be denied and the appeal heard on the merits.