dissenting.
The majority concede that Article 521, supra, does not grant such immunity as would operate as a substitute for the privilege against self-incrimination guaranteed by Section 10 of Article I of our Constitution. The applicable portion of the act reads as follows:
“No testimony or statement given by such female during the trial for any such offense above named shall be used against her in any criminal prosecution.”
As will be seen from 12 T.L.R. 17, 41, most of the immunity statutes of this State have been construed except the one set forth above.
A similar statute was before the Supreme Court of this State in Dendy v. Wilson, 179 S.W. 2d- 269. It provided “* * * any evidence given in the (juvenile) court shall not be admissible as evidence against the child in any case or proceeding in any other court * * * .” Judge Sharp, in writing for the Court, said:
“The argument is made on behalf of the State that the Act provides express immunity to those who testify. We find no such immunity in the Act. It merely provides that evidence given in the juvenile court shall be inadmissible in another proceeding. Under the settled law, that is not sufficient. Counselman v. Hitchcock, 142 U. S. 547, 12 S. Ct. 195, 35 L. Ed. 1110; Ex Parte Muncy, 72 Texas Cr. Rep. 541, 163 S. W. 29; Ex Parte Copeland, 91 Texas Cr. Rep. 549, 240 S.W. 314.”
All that Article 521, supra, does is to prohibit the re-use of testimony in a subsequent proceeding. It does not compel the witness to testify, as do other immunity statutes. It does not prohibit the use of information gained by means of interrogating the witness, as does the statute which was approved by this Court in Ferrantello v. State, 256 S.W. 2d 587.
Without a statute, there can be no grant of immunity. Judge Cardozo, speaking for the New York Court of Appeals in Doyle v. Hofstader, 177 N.E. 489, said:
*361“There is no record in the books of even a single instance, or none in any event has been brought to our attention, in which a witness, claiming privilege, has been compelled to reveal a crime upon the basis of an inherent power in the inquirer to relieve him from its consequences.”
This statement by such a profound scholar would clearly outweigh the admitted dicta which may be found in Ex Parte Copeland, supra, and the dicta in Hughes v. State, 62 Texas Cr. Rep. 289, 136 S.W. 1068, by Judge Harper. In fact, in Ex Parte Muncy, supra, this Court stated that the courts had no inherent power to grant immunity. Consistent with this view are the holdings of various Supreme Courts of other states as follows: State v. Sullivan, 37 So. 2d 907; People v. Conzo, 23 N.E. 2d 210; People v. Rockola, 171 N.E. 559; Temple v. Commonwealth, 75 Va. 892; Ex Parte Werner, 124 A. 195; Apodaca v. Viramontes, 212 P. 2d 425; and Karel v. Conlon, 144 N.W. 266. See also Isaacs v. U. S., 256 F. 2d 654, 661; Hooley v. U.S., 209 F. 2d 234; Foot v. Buchanan, 113 F. 156; 3 Jones on Evidence 1652, sec. 888; 98 C.J.S. 263, sec. 439; 8 Wigmore on Evidence (3rd Ed.) 529, sec. 2284; 4 Nichols Applied Evidence 3708, secs. 61, 62.
The majority find in Article 653, V.A.C.C.P., the necessary statutory grant of immunity. It reads as follows:
“The State’s attorney may, at any time, under the rules provided in this code, dismiss a prosecution as to one or more defendants jointly indicted with others; and the persons so discharged may be used as a witness by either party.”
This statute was passed merely for the purpose of making one or more of the accused persons competent witnesses. When so rendered competent, the witness is like any other witness, and his right to refuse to incriminate himself is the same as that of any other witness and there is nothing in Article 653 which deprives him of such right.
Thus, even in cases where Article 653 is applicable, I fail to find anything in it authorizing the prosecutor and the court to thrust upon a witness, against his will, a grant of immunity. Saucier v. State, 156 Texas Cr. Rep. 301, 235 S.W. 2d 903, and Bills v. State, 166 Texas Cr. Rep. 28, 305 S.W. 2d 614.
Since I fail to find any statutory provision which would give the witness immunity against self-incrimination, I must neces*362sarily conclude that she was within her constitutional rights in refusing to testify.
I am not unmindful of relator’s profession, the nature of the offense on trial, and the stigma attached to both, but I feel that we should construe the law as we see it with the Constitution as a guide. The Legislature may easily correct this deficiency in the law at their convenience, but it is not for this Court to do so. As Chief Justice Cardozo said in Doyle v. Hofstader, supra:
“A community whose judges would be willing to give it whatever law might gratify the impulse of the moment would find in the end that it had paid too high a price for relieving itself of the bother of awaiting a session of the Legislature and the enactment of a statute in accordance with established forms.”
I respectfully enter my dissent and would order the relator discharged.