concurring specially.
I concur with the results reached by the majority, but not with all of the opinion.
A witness, whether in discovery proceedings or on the witness stand in court, has the right to determine for himself, unaided by the court, whether the answer to any particular question may tend to incriminate him and he may refuse to answer for that reason.
Yet the majority opinion in this case, without disapproving thereof, cites the case of Prince & Paul v. Don Mitchell’s WLAQ, Inc., 127 Ga. App. 502 (194 SE2d 269), in which case certain holdings therein are diametrically opposed to the holding in the case sub judice. I believe we should deal with that case forthwith and overrule it. At page 503 the Prince Se Paul decision *742holds: "We agree with plaintiffs basic premises: that the protection of the Fifth Amendment and Code § 38-1205 can only be invoked when there is a substantial and real danger of incrimination; that the mere say-so of the witness does not establish this; that he must show he has reasonable cause to apprehend danger of incrimination from the answer; and the court must first determine whether there is a proper basis for invoking the privilege. ” (Emphasis supplied.) This is absolutely contrary to my understanding and interpretation of the law. It is my contention that the witness, not the judge, determines whether the question poses danger of incrimination; and that the mere say-so of the witness is all that is required to prevent his examination on that point.
In Empire Life Ins. Co. v. Einstein, 12 Ga. App. 380, 383 (2) (77 SE 209), this court holds: "... for when a witness claims his privilege upon the ground that he may incriminate himself by answering the questions propounded to him, he at last, and not the court, must determine whether the information given by his response to the question will have the effect of jeopardizing his liberty by tending to show his guilt of crime.” (Emphasis supplied.)
In Interstate Life &c. Co. v. Wilmont, 123 Ga. App. 337, 338 (4) (180 SE2d 913), this court holds: "Where a witness testifies under oath that his answer to any question asked of him would incriminate him and comes within the constitutional immunities guaranteed to him, the court can demand no further testimony of the fact. Fifth Amendment, U.S. Constitution (Code § 1-805); Constitution of 1945 (Code Ann. § 2-106); Code §§ 38-1102, 38-1205; Empire Life Ins. Co. v. Einstein, 12 Ga. App. 380, 384 (77 SE 209); Bishop v. Bishop, 157 Ga. 408 (121 SE 305); Ga. R. & Bkg. Co. v. Lybrend, 99 Ga. 421 (5) (27 SE 794); Bass v. Bass, 222 Ga. 378, 384 (149 SE2d 818).”
In Georgia R. &c. Co. v. Lybrend, 99 Ga. 421-422 (5), supra, and at page 440, where a witness had testified to certain matters at the first trial, and at the second trial elected to remain silent as to those same matters upon the ground that the evidence might incriminate him, it was held that the witness alone should determine whether to answer, in the following language: "These *743were matters for himself alone to determine. The privilege is in highest degree personal, and is a sacred one which the courts should jealously guard.” (Emphasis supplied.)
In Bishop v. Bishop, 157 Ga. 408, 410, supra, in a specially concurring opinion, Justice Russell quotes language of the Chief Justice of the United States in the Aaron Burr case, cited by him in Empire Life Ins. Co. v. Einstein, 12 Ga. App. 380, 384, supra, as follows: "It follows necessarily, then, from this state of things, that if the question be of such a description that the answer to it may or may not incriminate the witness, according to the purport of that answer, it must rest with himself, who alone can tell what it would be, to answer the question or not. If, in such a case, he says, upon oath, that his answer would incriminate himself, the court can demand no other testimony of the fact.” (Emphasis supplied.)
I repeat that the Prince & Paul case should be overruled.
On the subject of limitation of evidence on various questions, it may be observed that Georgia’s statutes are more restrictive and afford more protection than does the Fifth Amendment to the Constitution of the United States. For study on this question, including confidential and privileged matters see the following Code sections, to wit: Code §§ 2-106; 38-417; 38-419; 38-1102; 38-1711; 38-1205; 38-1605; 38-1711.