concurring in part and dissenting in part.
I agree with the majority opinion in all respects except as to the last question (listed as No. 9 in the majority opinion), which was put to the witness. With respect to that one question, in my view, the witness has not shown an adequate basis for a privilege against testifying.
The Missouri cases have utilized two different tests in determining whether a witness is entitled to the privilege against self-incrimination. Some of the cases declare that if a question submitted to a witness is innocuous on its face, then the witness must assume the burden of proving why that question would tend to incriminate him before he will be permitted to assert the privilege. Presta v. Owsley, 345 S.W.2d 649 (Mo.App.1961); State ex rel. Caloia v. Weinstein, 525 S.W.2d 779 (Mo.App.1975); Worley v. Whaley, 586 S.W.2d 721 (Mo.App.1979). On the other hand, other cases have adopted and applied the rule that the witness will be permitted to claim the privilege if the court is able to perceive any rational basis upon which the witness might be subjected to prosecution if he answers. Cantor v. Saitz, 562 S.W.2d 774 (Mo.App.1978); State ex rel. Lee v. Cavanaugh, 419 S.W.2d 929 (Mo.App.1967); State v. Joyner, 571 *694S.W.2d 776 (Mo.App.1978); State v. Brooks, 551 S.W.2d 634 (Mo.App.1977).
Cantor v. Saitz, supra, (the case principally relied upon by relator and by the majority opinion), discusses these two different approaches and expresses the view that the “burden of proof” test is unduly onerous. Cantor nevertheless recognizes that the witness should not be left to judge the whole matter for himself. Thus the Eastern District, speaking through Judge McMillian, said, “[W]e are mindful that the privilege is, absent some check, subject to abuse by anyone wanting to evade responding to a question. Just what check should be imposed, however, is a difficult question. As discussed above, requiring the witness to explain his reasons defeats the protection of the privilege to the extent that the substance of the explanation can be used against him. On the other hand, no check on the privilege provides for arbitrary use.”
It is doubtful whether our brethren on the Eastern District are wedded to the “rational basis” test as opposed to the “burden of proof” test. Thus in the most recent Missouri decision on this subject, the Eastern District, writing through Judge Clemens announced and applied the burden of proof test and held that a policeman was not privileged against making a certain report on the ground of self-incrimination, since he “failed to make the requisite showing that the requested report would incriminate him.” Worley v. Whaley, supra.
For the purposes of the present case, it is unnecessary to decide which of the two above tests is the more appropriate. Even applying the more lenient “rational basis” test, the witness here should be required to answer Question No. 9, which was: “Q. Mr. Hudson, do you have any interest in any estates that are presently being probated, either as a devisee or legatee or heir?” I, for one, can perceive no rational basis upon which an answer to that question would tend to incriminate the witness.
Cantor recognizes that in a situation such as this, an obligation can be cast upon the witness to make some showing as to why he should be accorded the privilege. In that respect the court stated: “After considering carefully the interests involved, we believe that the privilege is not eroded by requiring the witness or his counsel to describe, in general terms, a rational basis upon which his answer could conceivably incriminate him.”
Pursuant to that declaration, the trial court here did call upon defendant to describe in a general way such a rational basis, and in response the witness’s lawyer stated:
“Your Honor, I would say to the Court that the income taxes Mr. Hudson may be liable for on any income conceivably could represent some trouble for him in the future. As far as I know, the business he was in before with the restaurant has a high cash flow and is susceptible to manipulation. In fact, Tom Dasse testified earlier about the manipulation in the restaurant business, and with any sort of income he has now I would say the same applies. Could be trouble with income tax in the future.”
And as to Question No. 9 now in issue, the witness’s counsel explained as the basis for the witness's refusal to answer, “It would be the same reason, Your Honor.”
The reason so given by counsel can have no application to Question No. 9. The funds in a probate estate accumulated by some decedent other than this witness would not likely expose this witness to any charge that he had “skimmed” money out of the cash flow of his restaurant.
The majority opinion indicates that the questions in the present case are all “virtually identical” to questions asked in Cantor. That similarity does exist concerning the first eight questions asked here. It does not exist as to Question No. 9.
There were only two questions asked in Cantor which are in any way close to the present Question No. 9. The first of the questions in Cantor was as follows: “Do you have any interest under a will or trust?” That question differs from Question No. 9 here in that the Cantor question included inquiry as to any trust. A trust *695could have been created by the witness himself for his own benefit and therefore would be of the same character as any of his other assets. Indeed, that is exactly the way in which the Cantor opinion treated that question. In contrast, Question No. 9 in our case does not refer to any trust and relates only to probate estates which can only mean a decedent’s estate created by someone else.
The only other question in Cantor having any similarity is the following: “Q: Have you received any money recently under any will or inheritance?” This question is different from our Question No. 9 for the reason that the Cantor question relates to money already distributed, whereas the question in our case relates to funds still under administration.
As just demonstrated, the witness should not be accorded the privilege against self-incrimination even under the lenient Cantor approach. However, I should not leave this subject without saying candidly that I personally prefer the burden of proof test which was adopted by this court on a well-considered opinion in Presta v. Owsley, supra. As stated by Judge Hunter in that opinion, however, the witness should have the right and opportunity to show how the answer would endanger him. I would join the majority in making the writ absolute as to all questions except Question No. 9; and as to that question, I would quash the writ with instruction to the trial court to hold a hearing in which the witness will be allowed to make any further showing he desires as to how an answer to this No. 9 would incriminate him.