(dissenting) Mr. Justice Spiegel and I reaffirm the view expressed in our dissent in the first Giles ease (350 Mass. 102, 113) that the indictment brought under the second clause of the first sentence of G. L. c. 268, § 1, is without foundation in law. As aptly stated by Shaw, C.J., in Commonwealth v. Willard, 22 Pick. 476, 477-478, “No precedent and no authority has been shown for such a prosecution, and no such prosecution has been attempted within the knowledge of the Court, although a similar law has been in force almost from the foundation of the government .... That such a prosecution is unprecedented, shows very strongly what has been understood to be the law upon this subject.”
On the present appeal, our positions are, in summary: (a) We agree with the majority that judgment should be entered for Giles on count 1, but we are not in accord with the majority’s reasoning in reaching the result, (b) We agree with the majority that a person accused of perjury is entitled before trial to a complete copy of his testimony on which the accusation is based, but we believe that the statement by the majority does not go far enough, (e) We agree with the majority that the judgment on count 2 should be reversed, but we believe that justice requires that judgment be entered for Giles on count 2. (d) We believe that there are errors which permeate the indictment as a whole and require that judgment be entered for Giles on both counts.
1. Because it is quite unlikely that the circumstances attending this case will again come to pass, we think it would *22be fruitless to discuss our reasons for entering judgment on count 1 for Giles.
2. The majority have declared that in perjury cases, “hereafter, the defendant ordinarily should be furnished in advance of trial a copy of what he himself has said in the testimony alleged to have been false, without the necessity of his showing any ‘particularized need. ’ See Pittsburgh Plate Glass Co. v. United States, 360 U. S. 395, 400” (emphasis supplied). Our position is that a person charged with perjury, whether it be before a grand jury or crime commission or other body, is entitled as of right to a complete transcript of his own testimony before the tribunal where the perjury allegedly occurred, sufficiently in advance of trial to enable him to prepare his defence. This is the Federal rule. Dennis v. United States, 384 U. S. 855. United States v. Remington, 191 F. 2d 246 (2d. Cir.). United States v. Rose, 215 F. 2d 617 (3d Cir.). United States v. White, 104 F. Supp. 120 (D. N.J.). It represents the current weight of judicial authority among those States . where the subject is not explicitly covered by statute. Minton v. State, 113 So. 2d 361 (Fla.). See Gordon v. State, 104 So. 2d 524 (Fla.); State v. Moffa, 36 N. J. 219; State v. Clement, 40 N. J. 139; People v. Kresel, 142 Misc. (N. Y.) 88; People v. Golly, 43 Misc. 2d (N. Y.) 122. For State statutory provisions, see Am. Law Inst. Code of Criminal Procedure, § 150, and commentary, pp. 436-437 (Tent, draft No. 1, 1928). The issue has not been presented or passed upon in our prior decisions. Now that it is squarely presented, we think elementary considerations of justice require that the prevailing rule be adopted without reservation or qualification.
3. Although the majority have reversed the judgment on count 2 of the indictment, they have not ordered judgment for the defendant on the count. Giles is subject to retrial. ■We are of opinion that there was error (assignment 76) in the denial of Giles’ request that the offence charged had not been proved, and that he is entitled to judgment on count 2. In addition, because Giles is-now subject to re*23trial, we are compelled to examine in detail the reasoning of = the majority which we believe is unsound and would be detrimental to Giles on a retrial.
a. The offence charged was that Giles, in response to the question “whether . . . [he] had ever received any amounts of money from Nessex . . .,” wilfully and corruptly testified “that he had never received a salary or commission or money from Nessex for any other purpose other than a loan” (emphasis supplied). The trial judge quite rightly granted Giles’ requested ruling (12) that the question “must be narrowly construed to mean that Nessex Engineering must have turned over its moneys to Mr. Giles” (emphasis added). The majority do not dispute the appropriateness of the ruling. The ruling means that Giles could not be found guilty on count 2 unless there was proof beyond a reasonable doubt that he had, in fact, received money from Nessex.
An examination of the judge’s ruling giving request no. 33 shows unequivocally that he found that Giles had not received any money from Nessex. The judge ruled that “ [o]ra the evidence of this case . . . Giles while testifying under oath would have perjured himself had he stated that he had received moneys from Nessex Engineering” (emphasis added). The judge’s ruling (request no. 33) is irreconcilable with his finding of guilt. The two are mutually exclusive and cannot stand together. When the judge’s finding of guilt is tested by his ruling (request. no..'33), the finding of guilt is plainly wrong. The ruling shows that the Commonwealth has failed to prove beyond a reasonable doubt a necessary element of the crime charged. Giles is therefore entitled to judgment. He should not again be subject to trial for the same alleged crime.
b. Having shown-that.the judge’s rulings require a finding of not guilty, and, consequently, the entry of judgment for Giles on count 2, we turn to examine the reasoning by which the majority conclude that judgment should not be entered for Giles.
(i) The first conclusion which the majority reach is that *24Giles ’ answer to the question in count 2 is not so ambiguous as to preclude a conviction. The meaning which the majorr ity give to the word “money” in Giles’ answer, however, requires that judgment be entered for Giles on count 2 for the same reasons that led the majority to enter judgment for Giles on count 1. In place of the word “money” in the indictment, the majority have substituted such phrases as “indirect payments or benefits” and “payments of moneys which . . . very directly went to Giles or for his benefit” (emphasis supplied). The majority’s use of the disjunctive “or” means that in their view proof that Giles received only “benefits” from Nessex is sufficient to establish his guilt under the count. Apart from the fact that the word “benefits” is, by itself, vague, imprecise and ambiguous, it becomes more ambiguous when inserted in Giles ’ answer in count 2 and read in the context of his testimony, and will not support a conviction.
More important than the fact that the word “benefits” in context is too ambiguous to support a conviction is the fact that the indictment does not charge Giles with wilfully and corruptly testifying that he did not receive “benefits” from Nessex. In criminal law where certainty in pleading is a requirement (Commonwealth v. Dowe, 315 Mass. 217, 220) the word “benefits” cannot be deemed the equivalent of “money.” That the majority intend the word “benefits” to mean something other than money is evident from the fact that they do not rely upon the word “money” to prove the offence charged in the indictment. Indeed, the majority seem to concede that the evidence would not support a finding that Giles had, in fact, received money from Nessex. Neither this court nor the Superior Court can trifle with an indictment as returned by the grand jury and substitute for or add to the word “money” the word “benefits” unless there has been compliance with G. L. c. 277, § 35A. Commonwealth v. Snow, 269 Mass. 598. Commonwealth v. Bracy, 313 Mass. 121, 126.
By predicating Giles’ guilt upon the term “benefits” the majority have created a situation where the offence has *25neither been proved as charged nor charged as proved. “It is elementary in the criminal law of this Commonwealth that1 [t]he offence must not only be proved as charged, but it must be charged as proved. ’ Commonwealth v. Blood, 4 Gray, 31, 33. Commonwealth v. Phelps, 11 Gray, 72. Commonwealth v. Dean, 109 Mass. 349, 352. Commonwealth v. Wentworth, 146 Mass. 36, 38. Commonwealth v. King, 202 Mass. 379, 389. Commonwealth v. Coyne, 207 Mass. 21, 23-24. Commonwealth v. LaPointe, 228 Mass. 266, 268. Commonwealth v. Albert, 307 Mass. 239, 244.” Commonwealth v. Ancillo, 350 Mass. 427, 430.
(ii) In determining that judgment should not be entered for Giles on count 2, the majority purport to test the judge’s finding of guilt by his actions on requested rulings, and they conclude that they are 1 ‘ sufficiently uncertain how the judge instructed himself on the second count to cause . . . [them] to reverse the judgment on that count” but not to enter judgment for Giles. What leads the majority to deny judgment for Giles is that they do not in fact test the judge’s finding of guilt by his rulings but, rather, conclude that they are unable to do so. Examining those requests (13, 15, 16) which the judge denied (see majority opinion, footnote 13), the majority state that the judge’s refusal to give them “ suggest[s] that the judge interpreted Giles’ answer ... as denying that he had been the beneficiary of direct or indirect payments from Nessex.” Based upon this statement the majority make the assertion that they “cannot reconcile” the denial of these requests with the judge’s granting of request no. 33. The inference left to be drawn by the reader is that it is therefore impossible to decide against which of the requested rulings — those granted or those denied — the judge’s finding of guilt should be tested.
The purported irreconcilability of the rulings follows from a fault in the majority’s reasoning, and the fault is of their own creation. The fault consists in their failure to recognize that the meaning to be given to Giles ’ answer is a question separate and distinct from the question *26whether the answer was false. For, even if the meaning of Giles’ answer which the majority impute to the judge from his refusal to give requested rulings 13, 15 and 16 he adopted, it does not lead to the conclusion, which the majority reach, that his finding of guilt cannot be tested by his rulings. The requests which the judge denied were directed toward the meaning to be"given to Giles’ answer. The request (33) which he granted was directed to whether the answer was false. Because the requests were addressed to different issues there is no basis for concluding that the disposition of them was irreconcilable. Although the judge’s denial of requests 13,15 and 16 may “suggest” that the judge found that Giles, in his answer, denied both direct and indirect payments of money from Nessex, the granting of request no. 33 imports that, upon all the evidence before him, the judge found that Giles did not receive any money, directly or otherwise, from Nessex and that hence the answer was truthful. Because the majority are unable satisfactorily to resolve the inconsistency between the ruling (request 33) given and the finding of guilt, judgment should be entered consistent with the ruling given.
The majority seek to justify the withholding of judgment from Giles by attacking the judge’s ruling (request 33) on three grounds. First, the majority state that “ [i]t is possible that the judge interpreted request no. 33 as referring merely to direct payments from Nessex to Giles” (emphasis supplied). The implication is that such an interpretation of request no. 33 would remove the inconsistency they find between the requests denied and the requests granted. We have already shown that no such inconsistency exists. The narrow interpretation of request no. 33 by the majority would remove the inconsistency which exists between the ruling given (request no. 33) and the judge’s finding of guilt. But it is clear from the judge’s denial of requests nos. 13,15 and 16 that he did not intend his ruling (request no. 33) to refer merely to direct payments. It is the majority who say that the denial of requests 13, 15 and 16 “suggests” that the judge interpreted Giles’ answer in the in-*27dietment as a denial of both direct and indirect payments of money or benefits. It is the majority who have gone to such great length to give breadth and scope to Giles’ answer in count 2. We consider it ironic that they should now suggest that the same legal proposition, conversely stated, should be so strictly construed as to encompass only direct payments from Nessex to Giles.
The majority also imply that the granting of request 33 was the result of Giles’ “unduly large number” of requests which “had a tendency to become ‘a device to ensnare . . . [the judge] into error.’ Stella v. Curtis, 348 Mass. 458, 460-461.” Majority opinion, footnote 12. Nowhere does it appear that the judge considered the number of requests excessive. If he did, relief was open to him. See majority opinion, footnote 12. In addition, the reference to the Stella case scarcely seems apposite. The Stella case was a personal injury case where a plethora of requests was made on the sole issue of damages. Here, in contrast, we have a criminal case without precedent in law. It was imperative that the processes of legal thinking employed by the judge be ascertained in order to guard the defendant’s rights.
Finally, the majority attack request 33 on the ground that “Giles had not so testified and there was no occasion for giving the ruling.”1 The statement is misleading. The purpose of request 33 was to test the judge’s thinking on all of the evidence introduced at trial, not merely his thinking on what took place at the commission hearing. One of the issues in the case was whether Giles had received money from Nessex. The request asked the judge to rule on the sufficiency of the evidence on that issue. The ruling was decisive of the issue. It is an accepted rule of practice that such a request is a proper one and must be passed upon by the judge. Stella v. Curtis, 348 Mass. 458, 461. Bresnick v. Heath, 292 Mass. 293, 298-299. Judgment should be entered consistent with the ruling given.
*28(iii) The majority conclude from their examination of all the evidence that the judge could have found Giles guilty of perjury. The test in a prosecution for perjury is whether the defendant’s answer as alleged in the indictment, at the moment it was given, .was wilfully and intentionally false. In our view, the majority’s discussion of count 2 falls far short of establishing the coincidence of these several facts. In addition, our examination convinces us that, on any view of the record, the essential coincidence of these several facts cannot be established. The judge’s finding of guilt is neither supported by the evidence, nor consistent with his rulings. The proper action in such a case is not to subject the defendant to a retrial in order to give the prosecution another chance to convict, but to enter the judgment for the defendant to which he is now entitled.
4. In addition to what we have said, there are errors which permeate the indictment as a whole and require that judgment be entered for Giles on both counts. In particular, the majority disregard the basic concept that a conviction of perjury cannot stand unless proof is forthcoming that the answer of the witness, if proved false, is material, i.e., has a reasonable and natural tendency to influence or affect the result of or decision on the matter under investigation. In the first Giles case, 350 Mass. 102, 110, the majority acknowledged the validity of this concept. It is the settled law of the Commonwealth that it is an essential element of the offence. Commonwealth v. Louis Constr. Co. Inc. 343 Mass. 600, 607. It is equally well settled that the proof must be beyond a reasonable doubt. Commonwealth v. Pollard, 12 Met. 225, 228-229. Commonwealth v. Grant, 116 Mass. 17, 20-21. Commonwealth v. Aronson, 250 Mass. 521.
With respect to the issue of materiality, the majority say that “the inquiries made were relevant to the commission’s general legislative investigation” (emphasis supplied). This, however, is not the test. It is the materiality of the defendant’s answer which, if proved false, is crucial in a prosecution for perjury. See the first Giles case, *29350 Mass. 102,110. The majority state that there is “nothing in this record to suggest that the commission would, in January, 1964, have ashed Giles to testify at all if it had not been for his own request to the Attorney General for an opportunity to appear, or that the commission had any purpose in January, 1964, except to comply with his request”2 (emphasis supplied). Majority opinion, footnote 14. The italicized language is a clear acknowledgment by the majority that Giles’ answers could have no reasonable or natural tendency to influence the result of or decision on the matter under investigation, and therefore cannot be deemed material. This conclusion follows no matter who requested the hearing. The prosecution’s failure to prove an essential element of the offence entitled Giles to judgment on both counts.
We observe that the majority’s treatment of materiality here is reminiscent of their treatment of materiality in the first Giles case, 350 Mass, at 112. The indictment did not allege that Giles’ allegedly false answers were material to the matter under investigation. The majority said, however, contrary to our earlier decisions, that materiality need not be alleged, because it was implied in the indictment. And now the majority, despite their admissions that the commission would not have asked Giles to testify at all and that the commission had no purpose for getting his testimony, nevertheless refused to enter judgment for Giles on count 2. They thereby imply, but do not say, that the materiality of his testimony need not be proved. This is a departure from the law of perjury as it has always been understood here and elsewhere.
We are prepared to show from all that is before us that not only has the prosecution failed to prove the materiality of Giles’ answers, but also that they are unable to do so upon any retrial. By “all that is before us,” we include not only all that was in the recora when the case was argued before this court, but also two documents which, four *30months after argument, were made available to the court. See majority opinion, footnote 14. We refer particularly to a photostat of the undisputed testimony of Mr. Alfred Gardner, chairman of the Crime Commission, before a judge of the Superior Court sitting at Newburyport, on June 25, 1964. The judge was the same judge who presided at the trial under review. Counsel for the commission and for Giles were the same counsel as in the case under review. The testimony concerned “related indictments” against Giles and others then pending in Essex County. The “related indictments” are incorporated by reference in the record of the case before us and are referred to in the last page of the majority opinion.
The sequence of events disclosed by a reading of all that is before us shows Nessex and Stuart had been under investigation since early in 1963. According to Mr. Gardner, in 1963 on October 2, and October 16, and on November 9, respectively, the Crime Commission voted to submit to the Attorney General its evidence relating to Nessex, Stuart, Giles, and others. A statement was prepared by the commission’s counsel, and the evidence, with the statement, was turned over to the Attorney General. Thus, as early as October 2,1963, and certainly no later than November 9. 1963, the Crime Commission and its counsel were convinced that they were in possession of sufficient evidence to prosecute Giles on the Nessex and Stuart matters. Although no action was taken by the Attorney General in response to the Crime Commission’s communications, the commission’s de-; cisión on the matter under investigation had been made.' Giles’ answers, subsequently given at the commission hearing, could have no reasonable or natural tendency to influence a decision which already had been made and therefore cannot be deemed material.
The majority state that the only reason the commission-' held the hearing of February 4, 1964, was “to comply with . . . [Giles’] request” for a hearing, and that Giles would not have been asked to testify at all “if it had not been for his own requést to the Attorney General for an opportunity *31to appear.” Majority opinion, footnote 14. We find, however, that a comparison of the dates when the commission submitted its evidence to the Attorney General for action with the dates and content of the commission’s correspondence is strikingly revealing, particularly when read in light of the fact that the commission had reached its decision and therefore had no need for Giles’ testimony regarding the matter under investigation, a fact which the majority concede (majority opinion, footnote 14). It reveals that the true purpose of the commission’s inquiry of Giles was not, as the majority state, to accommodate Giles but, rather, was to elicit from him testimony which the commission could measure against other detailed information already gathered by its investigators and then, if a discrepancy could be found, to prosecute Giles for perjury. On October 11,1963, nine days after the Attorney General had first been requested to take action, and none had been forthcoming, the commission’s counsel wrote to Giles, giving him an “opportunity to appear voluntarily at a hearing.”3 On .October 15, 1963, the day before the Attorney General was requested for the second time to take action, the commission’s counsel wrote to Giles’ counsel stressing that the earlier letter to Giles was an “invitation” and not a request, but giving no indication that Giles was under investigation.4 On January 31, 1964, several weeks after the *32Crime Commission’s evidence had been submitted to the Attorney General and no action had been taken, the commission chairman sent a letter to the Attorney General, a copy of which was forwarded to Giles, renewing the “invitation” for Giles to appear before the commission upon the commission’s own terms. The commission chairman’s letter stated that the purpose of the hearing was to give Giles “an opportunity to explain to the Crime Commission his activities with respect to the survey companies that the Commission has investigated.” As a result of this letter, and contrary to the advice of counsel, Giles appeared before the commission on February 5, 1964, with counsel.5
At no time prior to his appearance before the commission was Giles given any indication of the extent of the commission’s prior investigation or that the commission on three occasions had requested the Attorney General to take action against him. When Giles did appear before the commission, the opening statements of the chairman and the commission’s counsel gave him no inkling that he was under investigation. Mr. Gardner advised Giles of his constitutional rights and administered the oath. Before the interrogation began, the commission’s counsel said: “As you know, since sometime last fall, we have been conducting an investigation of the Nessex Engineering Company, Stuart Engineering Associates . . . [and two named individuals, not including Giles] . . ., and I wondered with reference to either the investigation in general or the subject matter of the investigation as pertains to those two corporations and the two individuals if you desired to make for the benefit of the Commission some statements'?” The fair import of both the commission correspondence and counsel’s statement at the opening of the hearing is that the commission was interested only in the conduct of the two named corporations and the two named individuals (not including Giles), and that Giles’ own conduct was not under investigation.
*33On February 29, 1964, three weeks after Giles appeared before the commission, the Attorney General asked for a special grand jury in Essex County. On March 16, 1964, the Essex County grand jury convened, and on March 25, 1964, returned four indictments, encompassing fourteen counts, against Giles relating to matters concerning Nessex and Stuart. The last phrase in the last sentence of the last count of the last numbered indictment alleges that Giles “while testifying under oath before the Massachusetts Crime Commission . . . [affirmed] falsely in a matter material to the issue . . . stating in substance that he had no personal or financial connection . . . with Nessex . . ..” The close identity of this language with that used in count 1 of the indictment now before us is obvious. Five weeks after the indictments were presented in Essex County, the indictment now before us was returned by a special grand jury then sitting in Suffolk County to hear matters prepared by the Crime Commission. The Essex indictments have never been brought to trial.
The course of events, controlled by the Crime Commission before, at and after the hearing, makes it painfully clear that the commission’s purpose was neither to give Giles “an opportunity to explain” nor to gain additional information from him. Instead, the commission’s real purpose was to disarm Giles by letter and by the opening statements of the chairman and the commission counsel, and then to adopt a method of inquiry which would lead Giles to make a general statement which could be found to be inconsistent with the mass of detailed evidence already submitted to the Attorney General by the commission and thus, by the additional allegation that Giles had committed perjury, spur the Attorney General to action. In short, what we have here is an indictment contrived by the Crime Commission for alleged perjury before the Crime Commission on a matter concerning which its investigation had been closed and its decision to prosecute had been made several months prior to Giles’ testimony.
*34An explanation of, although by no means a justification for, the Crime Commission’s extraordinary procedure may be found in the Third Report by the commission dated December 2, 1963 (prior to the “invitation” to Giles of January 31, 1964), which stated in substance that its legislative recommendations would not carry weight until there were convictions. The commission’s statement also explains its decision to indict and prosecute Giles for perjury in Suffolk County rather than prosecute the conflict of interest indictments obtained earlier in Essex County. Although the “matter under investigation” by the commission was conflict of interest, there were and are serious impediments, including the statute of limitations, to the successful prosecution of those indictments. See Massachusetts Crime Commission, Fifth Report (1965) p. 8. Under the guise of a perjury indictment, however, the prosecution would be able to reach back, as it did reach back, to 1954 and introduce in evidence such matters as are referred to in footnotes 5, 6 and 7 of the majority opinion, in an effort to show that Giles’ answers to the two alleged questions by the commission in 1964 constituted perjury.
Law enforcement in this Commonwealth, as we long have known it, has sprung from a purpose to detect crime, to apprehend the criminal, and to bring him to justice for his misdeeds rather than from a desire to ensnare and victimize a citizen and bring him to his ruin by the misuse of his words. Our position is that an indictment procured as this one was procured is such a reproach to public justice as to cause this court to reject any conviction based upon it. We do not rely upon United States v. Icardi, 140 F. Supp. 383 (D. D.C.) nor do we ask that the Federal rule against entrapment be invoked. The facts speak for themselves. The indictment is anomalous. The counts are sophistical. The proof is synthetic. Both convictions are wrong.
Compare footnote 9 of the majority opinion wherein the majority make use of another ruling given by the judge concerning a matter about which * ‘ Giles had not so testified . . .. ”
The portions of the majority's statement which relate to the proposition that the hearing was held solely to accommodate Giles are discussed helow.
The commission counsel's letter read in part: “An investigation being conducted by us at the Department of Public Works caused us to make inquiry concerning Hessex Engineering Corporation, Stuart Engineering Services, Inc. and . . . [one named individual, not Giles], We desire to give you the opportunity to appear voluntarily at a hearing, if you desire, to discuss Hessex, Stuart and . . . [the one named individual, not Giles].”
_4 The text of the letter, sent to Giles ’ attorney by counsel for the commission, is as follows: “In order to eliminate any misunderstanding of the position of the Commission with respect to the appearance of Mr. Giles before it, I want to make clear to you as his counsel that the letter I wrote him on October 11, 1963 was an invitation to appear and give testimony, if he elected to do so, and was not a request. The Commission wanted Mm to know that the Hessex Engineering Corporation, Stuart Engineering Services, Inc. and . . . [one named individual, not Giles] are being investigated and wanted him to have an opportunity to give it any evidence that he might wish to have made a matter of record. Since you have said that he is unwilling to appear and give evidence under oath without a summons and since the Commission is not requesting his testimony and therefore will not issue a summons to him, the Commission considers that the question of Ms appearance before it is closed.''
It should be noted that under the Crime Commission’s practice the role of a witness’ counsel is limited to consultation with the witness. He has no right to examine the witness or to object to questions or, unless invited, to make a statement.