dissenting. James Edward Creamer, the accused, filed a motion in this court on September 20, 1972, seeking to stop the carrying out of an order entered in the trial court on September 19, 1972. The order of the trial court required the accused to submit to a surgical operation for the removal of a foreign substance from his body believed to be a bullet. Upon presentation of the motion this court temporarily stopped the carrying out of the trial court’s order and directed counsel for the accused and the State to present argument to the full court with respect to the motion on September 25, 1972. Having heard argument orally and by briefs, this court now proceeds to its decision on the motion.
The record shows that on August 31, 1972, the accused was brought from Fulton County, where he was confined for an offense unrelated to the charges against him in Cobb County, by law enforcement officers to Cobb County. On September 1, 1972, two warrants were issued by the Judge of the State Court of Cobb County charging the accused with having committed two murders in Cobb County in May of 1971. On September 1, 1972, the Judge of the Superior Court of Cobb County also issued a search warrant which provided, in part, as follows: "The sheriff and/or his lawful deputy of Cobb County, Georgia, is hereby directed to cause the said James Edward Creamer to appear before me on the 7th day of September, 9:30 a.m., 1972, and at that time the defendant is to show cause before me why he should not be examined to determine if a bullet is located in his body and for such other examination and medical and surgical procedure that the court may hereafter order. . . It is further ordered and directed that the said James Edward Creamer be examined by Dr. Robert T. Session, Dr. James H. Manning and Dr. Spencer G. Mullins, and that they shall determine whether the health of the said James Edward Creamer shall be *520substantially impaired by the removal of said .38 calibre bullet and that they shall report their findings to this court as soon as possible.”
The accused was also brought before the Judge of Superior Court of Cobb County on September 1, 1972, his constitutional rights were properly explained to him, and counsel was appointed for him by the court pending the arrival of the accused’s own personal attorney.
On September 7, 1972, attorneys for the accused filed several motions with the court as follows: (1) Asking that a writ of habeas corpus issue;’ (2) Seeking to strike and suppress all statements theretofore made by the accused and any and all information obtained from the accused in any way including an inspection of his person by law enforcement officers; (3) Seeking to quash the application for search warrant and affidavits supporting it; (4) Seeking injunctive relief restraining any person from examining the body of the accused against his objection and seeking to enjoin any person from any instrusion, by any means whatsoever, into the body or person of the accused against his objection.
On September 8, 1972, the trial judge overruled these motions and further ordered "that James Edward Creamer submit to an examination and X-ray under the control, direction and supervision of the Chief of Staff of Surgery, Cobb General Hospital, S. G. Pausa, M. D., forthwith and that a report be made to the court as to whether the removal of the bullet can be effected without endangering his life and that a report of the procedures necessary to effect such removal be forthwith made to the court, all at the expense of Cobb County; that the district attorney make proper return of the execution of this order as provided for search warrants.”
The examination of the accused was thereafter made by the physicians, and they made their report to the court.
On September 19, 1972, the trial judge then entered the order appealed from. That order recited that the physicians had reported that there is a lead or steel substance in the defendant’s chest, and that there would be no significant *521danger to the defendant’s life or health in performing an operation for the removal of the substance from his body. The order then concluded as follows: "It is therefore ordered that the defendant, James Edward Creamer, be transported by the Sheriff of Cobb County, Georgia, to Talmadge Memorial Hospital; and it is ordered that the Chief Sugeon of said hospital cause to be performed the necessary surgery to effect the removal of the bullet or other substance; and it is further ordered that the defendant may have counsel present and a physician of his own choosing if he so desires during the time that the surgery is performed and any examination preliminary thereto or subsequent thereto.”
As heretofore related, this court temporarily stopped the carrying out of this order by an order entered September 20, 1972. This court must now rule on the motion for stay. By ruling on this motion this court must necessarily decide the merits of the matter at issue between the accused and the State. If the State can legally require the surgical operation ordered, then the motion must be overruled. If the State can not require the surgical operation ordered, then the motion should be granted, and the trial court’s order of September 19, 1972, must be permanently stayed.
It is therefore necessary to proceed to the merits of the matter, namely the legality or illegality of the ordered surgical operation.
I.
Is the order entered below violative of the Fourth Amendment to the Federal Constitution which prohibits unreasonable searches and seizures? It is not. The record shows that the search and seizure to be effected by a surgical operation will not endanger the life or health of the accused. The operation would be a minor one, could be conducted with a local anesthetic, and medical experts have testified that the substance or object could be removed without danger to the accused.
The Fourth Amendment to the Federal Constitution does not prohibit the order entered below.
*522II.
Is the order below violative of the Fifth Amendment to the United States Constitution which provides that no person shall be compelled in any criminal case to be a witness against himself? It is not. The Supreme Court of the United States in the case of Schmerber v. California, 384 U. S. 757 (1966) has held that the proscription contained in the Fifth Amendment is a bar against compelled "communications” or "testimony,” but that compulsion which makes a suspect or accused the source of "real or physical evidence” does not violate it. The Schmerber case was a "taking of blood” case, and it was a five-four decision. And while Mr. Justice Black in his dissenting opinion in that case said, "to reach the conclusion that compelling a person to give his blood to help the State convict him is not equivalent to compelling him to be a witness against himself strikes me as quite an extraordinary feat,” the majority decision is nevertheless the latest interpretation of this constitutional privilege against self-incrimination by our highest court.
The Fifth Amendment to the United States Constitution does not make the order in the case at bar illegal.
III.
The Georgia Constitution provides: "No person shall be compelled to give testimony tending in any manner to criminate himself.” Code Ann. § 2-106.
A Georgia statute provides: "No person, who shall be charged in any criminal proceeding with the commission of any indictable offense or any offense punishable on summary conviction, shall be compellable to give evidence for or against himself.” Code Ann. § 38-416.
What is the meaning of this Georgia constitutional provision and this Georgia statute in the context of the issue to be decided here?
Under its charter as a Colony and under all of its Constitutions the State of Georgia has been ruled by the common law of England except where Georgia statutory enactments abolish or amend the common law.
The late R. Carter Pittman, a member of the bar of this *523court, in a very scholarly article in 21 Va. L. Rev. 773, 774 (May, 1935), discussed the origin of the "privilege against self-incrimination”: "The Puritan agitation for the privilege against self-incrimination progressed rapidly and with heated intensity from 1637 through the 1650’s. Anterior to the commonwealth torture was used as a matter of course in grave accusations at the mere discretion of the King and the Privy Council and with no restraint other than the prerogative of the sovereign.
"The trials of John Lilburn (1637-1645), the trials of the twelve Bishops (1641), King Charles Trial (1649), and Scroop’s trial (1660) all illustrate how the privilege against self-incriminations settled into the bed rock of the English Common Law. In the early 1650’s this privilege was so well established in the customary law of England that it was never even thought necessary by any English Parliament to pass an act or resolution touching the matter.
"The implications to be found in Wigmore on Evidence, § 2250, and in the case of Twining v. New Jersey, 211 U. S. 78, to the effect that the privilege against self-incrimination was never regarded in England as the constitutional landmark that our own Constitution makers of 1789 regarded it, seems unjustifiable. No constitutional documents came out of the Puritan revolution and the civil convulsion immediately following it. By the time of the English Bills of Rights of 1689, the privilege had become so well established and universally recognized that to have inserted it would have been very much like re-affirming the law of gravitation.”
In the early case of Marshall v. Riley, 7 Ga. 367, 370 (1849), Mr. Justice Lumpkin, speaking for this court said: "The maxim of the Common Law, nemo tenetur seipsum prodere, that no man is bound to accuse himself of any crime, or to furnish any evidence to convict himself of any crime, is founded in great principles of constitutional right, and was not only settled in early times in England, but was brought by our ancestors to America, as a part of their birthright.”
In the case of Calhoun v. State, 144 Ga. 679, 680 (87 SE *524893) (1915), this court said: "The privilege against self-incrimination has been uniformly construed by the courts as giving the citizen protection as broad as that afforded by the common-law principle from which it is derived. [Cits.] The constitutional guaranty protects an individual from being compelled to furnish evidence against himself, either in the form of oral confessions or incriminating admissions of an involuntary character, or of doing an act against his will which is incriminating in its nature.”
And as late as 1964 this court, in a unanimous decision rendered in the case of Aldrich v. State, 220 Ga. 132, said at p. 134: "This leaves for decision only whether or not 'testimony’ as found in the Constitution embraces all kinds of evidence? Fortunately, this court has many times decided that question by holding that the word 'testimony’ means all types of evidence as the following decisions will illustrate. [Citing cases and quotations from cases].”
It is therefore clear that this court has consistently held through the years that a person’s privilege against self-incrimination embedded in the law of this State under the common law, under the Georgia Constitution, under the Georgia statute, and under the decisions of this court means that the State cannot compel a person to give "any evidence” in any manner against himself that tends to incriminate him. The word "testimony” in our constitutional provision has been interpreted to mean "any evidence.” Our Statute, Code Ann. § 38-416, says that no person shall be compellable to "give evidence” against himself.
Under the law of Georgia the State cannot compel a person to submit to a surgical operation for the removal of a substance or object from his body if such person is accused of a crime, as in this case, and if such person invokes the Georgia constitutional and statutory guaranties against self-incrimination as the accused has done in this case.
The State cannot compel the operation ordered. The order entered below is illegal and in contravention of Georgia law. The motion to stay that order should be granted by this court rather than denied.
*525The present Solicitor General of the United States in a speech delivered Feb. 5, 1954, said: "A good many efforts have been made to rationalize the privilege, to explain why it is a desirable or essential part of our basic law. None of the explanations is wholly satisfactory. I am going to offer my own attempt to express the reason for the Fifth Amendment, and why I think it is a sound provision of our basic laws, both federal and state.
"I would like to venture the suggestion that the privilege against self-incrimination is one of the great landmarks in man’s struggle to make himself civilized. As I have already pointed out, the establishment of the privilege is closely linked historically with the abolition of torture. Now we look upon torture with abhorrence. But torture was once used by honest and conscientious public servants as a means of obtaining information about crimes which could not otherwise be disclosed. We want none of that today, I am sure. For a very similar reason, we do not make even the most hardened criminal sign his own death warrant, or dig his own grave, or pull the lever that springs the trap on which he stands. We have through the course of history developed a considerable feeling of the dignity and intrinsic importance of the individual man. Even the evil man is a human being.
"If a man has done wrong, he should be punished. But the evidence against him should be produced, and evaluated by a proper court in a fair trial. Neither torture nor an oath nor the threat of punishment such as imprisonment for contempt should be used to compel him to provide the evidence to accuse or to convict himself. If his crime is a serious one, careful and often laborious police work may be required to prove it by other evidence. Sometimes no other evidence can be found. But for about three centuries in the Anglo-American legal system we have accepted the standard that even then we do not compel the accused to provide that evidence. I believe that is a good standard, and that it is an expression of one of the fundamental decencies in the relation we have developed between government and man.
*526"As that old tartar Mr. Justice Stephen J. Field said, 'The essential and inherent cruelty of compelling a man to expose his own guilt is obvious to everyone, and needs no illustration.’” Griswold, The Fifth Amendment Today, pp. 7, 8.
I respectfully dissent.