I join in the dissent of Mr. Justice Stevens and concur in his opinion. Of course, fear of Federal prosecution, even though there is a clear probability that such prosecution would follow, based upon testimony wrung from a witness through the use of the State immunity statute, cannot justify a refusal to answer (Knapp v. Schweitzer, 357 U. S. 371). Nor does my dissent rest on the unlawful seizure of the paper which forms the basis for the questions which the witness refused to answer, even though there might be some just basis to his claim that he should not be confronted with the document so unlawfully obtained from him. It should be said in passing that such practice should be condemned. It should be even more strongly condemned in an instance such as this, where it is sought to have the victim of such practice give testimony concerning the very document that the State should not have had in its possession in the circumstances. The court should not look with tolerance upon willful unlawful practices by the State, placing a premium upon them and encouraging their continuance by permitting their use in legal proceedings. Though this case differs in degree from the case of Rochin v. California (342 U. S. 165) it is the same in principle.
As does Mr. Justice Stevens, I base my dissent on the fact that the immunity offered was a qualified one—not broad enough to cover the peril faced. The offer of immunity to the witness was made with the express reservation that it was not intended to grant immunity with respect to those matters that were incorporated in the questions theretofore asked and which the witness refused to answer. How can we tell but that the answers sought to be compelled may not relate to the other matters as to which immunity was expressly withheld? If so related the immunity would on the one hand be offered and on the other hand withheld. We are not confronted with the question whether having answered the questions through compulsion, the witness would then be immune from prosecution. We are confronted with the question that arises prior thereto, i.e., may the witness be compelled to answer those questions in the light of the District Attorney’s warning, implicit in his reservation, that the witness may be prosecuted if his answers related to *390matters as to which “ there was no intention to grant him immunity.” The witness should not he compelled to speculate on the effect of his compliance. In these circumstances I vote to reverse.
Botein, P. J., and McNally, J., concur with Bergan, J.; Stevens, J., dissents in opinion, in which Rabin, J., concurs in opinion.
Order affirmed.