Concurring Opinion by
Mr. Justice O’Brien :I concur in the result reached by the majority. I do so for the reason that Cassel had reasonable cause to apprehend danger of prosecution from his testimony. I would not at this time reaffirm the holding of McFadden v. Reynolds, 20 W.N.C. 312 (1887), a case that has not withstood the test of time. As stated in 98 C.J.S., Witnesses, §438, p. 259: “As a general rule, a witness may be compelled to testify with respect to a crime the prosecution of which is barred by the statute of limitations.” If the witness cannot be convicted of the crime, the fact that he can be prosecuted for it is of only academic interest. What is of general interest is that the witness’ testimony can be vital to obtaining convictions, particularly in these days when the use of confessions has been so curtailed.
However, it is not altogether clear, or at least it was not altogether clear to the witness, that conviction for any crimes revealed by his testimony would be barred by the statute of limitations. The statute of limitations may have been tolled, e.g., by the witness’ nonresidency. The record does not reveal the witness’ residency during the entire period. Courts have split on the question of whether, upon a claim of privilege, *153the witness has the burden of showing that the statute of limitations was tolled because he was out of the state, or whether the opponent of the privilege must show that the witness was continually a resident in' order to compel him to testify.1 Certainly, appellant could reasonably have believed that the statute had been tolled, and that it was the burden of the Commonwealth to prove otherwise. It ivas thus proper for him to exercise his privilege against self-incrimination.
Mr. Justice Roberts joins in this concurring opinion.Compare In re Pillo, 11 N.J. 8, 93 A. 2d 176 (1952), with People v. Rockola, 339 Ill. 474, 171 N.E. 559 (1930).