(dissenting).
The material part of section 1792, Code of 1906 (section 2106, Hemingway’s Code), is that: “No person shall be excused from attending and testifying . . . before any court, or in any cause or proceeding, criminal or otherwise, based upon or growing out of any allegpd violation of this chapter, ... on the ground and for the reason- that the testimony or evidence, . . . required of him, may tend to criminate him. . . . But no person shall be prosecuted or subject to any penalty . . . on account of any transaction, . . . concerning which he may testify, ’ ’ etc. •
In the case of State v. Bramlett (Miss.), 47 So. 433, the appellant had been subpoenaed, and testified before the grand jury about matters relating to his guilt or innocence. Subsequent thereto he was indicted for the offense about which he had testified before the grand jury. On motion the indictment was quashed in the circuit court. On appeal to this court it was held that this action of the lower court was correct.
In the case of Wall v. State, 105 Miss. 543, 62 So. 417, Wall, in testifying before a grand jury relative to the offense of another party, disclosed facts which tended to *439incriminate him, whereupon he was indicted by the grand jury. In this court was held that under the provisions of this section Wall was immune from prosecution.
In the case of Lucas v. State, 130 Miss. 8, 93 So. 437, Lucas testified before the grand jury, whether voluntarily or under compulsion is not shown. Before he testified the grand jury had already voted to return an indictment against him for the alleged offense, about which he testified. In holding that his special plea of immunity should have been sustained in the lower court, this court, through Smith, C. J., stated that:
“The statute invoked covers all testimony relative to the sale, manufacture, etc., of intoxicating liquor, that has been permitted to be given before a court or grand jury, and contains no limitation of its benefits either to such persons who have testified under compulsion, or who have testified before the finding of an indictment against them.”
The cases above cited all relate to testimony before the grand jury. The statute, however, grants this immunity to one who testifies before any court. As stated in the Lucas Case, supra, this statute contains no limitation. It is the contention of the state that the intent and purpose of this statute was to grant immunity only to one who testifies as a witness for the state; that it was not meant to give this immunity to one who testifies as a witness for the defendant. The reply to this argument, however, is that this statute is plain and unambiguous, and is not limited to testimony delivered by one as a witness for the state, and by its terms applies equally to one who testifies as a witness either for the state or for the defendant. It is our duty to enforce the statute as written and not to engraft exceptions upon it not therein contained.
In the case of Howard v. State, 83 Miss. 378, 35 So. 653, construing the immunity for testifying under the gaming-statute, the opinion of the court states that this immunity under the statute is granted to one who testifies in favor of the state. In that case the testimony was given *440for the state, and it was not necessary for the court to say that the immunity was only granted to a state witness.
I cannot say from a reading of the statute to be construed that the legislature only meant to grant immunity to one-testifying for the state. It is not beyond the realm of possibility that the legislature thought it but right to give a defendant the same right to use a witness as the state and to give this immunity to one also used in good faith as a witness by a defendant. To me the statute is absolutely plain and unambiguous, and contains no limitations, either expressly or by implication, that this immunity can cnly be granted to a state’s witness. Whether the law be wise or foolish is hot a judicial question. It is our duty to enforce the law as written. I think the special plea of the defendant should have been sustained, and that he should have been granted the immunity provided in this statute. For these reasons I am constrained to differ with the majority opinion.
I am authorized to say that Judges Cook and Ethridge agree with me in the views herein expressed.