(concurring). I reach the same result expressed in the majority opinion but do so only because upon this application for prohibition the record does not adequately establish that the answers made by the appellant under judicial compulsion furnished a link in the chain of evidence for the present prosecution.
I respectfully disagree, however, with the court’s holding that it is the accused’s burden to establish the connection. When the state compels a witness to forsake his constitutional privilege to remain silent, the question as to whether a subsequent prosecution is barred should depend on whether the evidence needed for the prosecution was triggered by the testimony given by him under compulsion. In my opinion, it is wrong to impose upon the witness the burden of proving such nexus. When the issue is raised by the accused, it is enough if there is a reasonable probability that the compelled answers furnish the link to the evidence needed for prosecution; it is the state which should then have the obligation of contradicting this. But cf. State v. Lloyd (1913), 152 Wis. 24. 32, 139 N. W. 514.
*652In Counselman v. Hitchcock (1892), 142 U. S. 547, 585, 12 Sup. Ct. 195, 35 L. Ed. 1110, it is stated:
“It is quite clear that legislation cannot abridge a constitutional privilege, and that it cannot replace or supply one, at least unless it is so broad as to have the same extent in scope and effect. . . .
“We are clearly of opinion that no statute which leaves the party or witness subject to prosecution after he answers the criminating question put to him, can have the effect of supplanting the privilege conferred by the Constitution of the United States.”
The majority opinion states that none of Mr. Rizzo’s “testimony during the entire John Doe” could qualify as a basis for his subsequent prosecution. This is a conclusion to which I cannot subscribe because I do not think it is sufficiently established by the record. It does not shock me to think that the compelled admissions as to gambling in Milwaukee and of his having been a “stick man” at a gambling place in Milwaukee could have produced the link needed for a later prosecution as to gambling in a neighboring community. Mr. Rizzo should have the right to raise this issue by way of a motion to quash, and if the trial court believes it reasonably probable that the compelled testimony produced the needed link in the chain of events, then the state should be required to show that the prosecution’s case is not connected to the evidence which had been given by him under compulsion.
The majority opinion points out that the prosecutor specifically warned Mr. Rizzo that he would have no immunity as to subsequent questions and that the magistrate also informed him that his subsequent testimony would not be immune. In my opinion, it is inappropriate for this court to rely on those warnings; I believe them to be irrelevant. The test is whether the answers given under compulsion supplied the necessary link for the sub*652asequent prosecution; if they did, the attempted warnings of the prosecutor and the magistrate were ineffectual in depriving the witness of his immunity.
The court also concludes that Mr. Rizzo “never claimed his privilege as to questions about the Kenosha county activities and by answering he waived his right to claim immunity.” In my opinion, this observation on the part of the court presupposes that there is no possible nexus between gambling in Milwaukee and subsequent gambling in Kenosha. It begs the question whether there is in fact a link between the testimony given under compulsion and the subsequent prosecution. One might fairly ask why in the Kenosha John Doe proceedings it was necessary to interrogate Mr. Rizzo concerning gambling in Milwaukee; the answer might well be that there was a tie-up between the gambling in the two localities. If the questions were in fact relevant to the Kenosha investigation and of sufficient importance to have warranted the giving of immunity, we should not foreclose the possibility of an evidentiary link.
I share the doubt expressed in the court’s opinion that upon this record it was proper to proceed by way of an application for a writ of prohibition. However, Mr. Rizzo should not be barred from raising the question whether his Kenosha prosecution stemmed out of evidence garnered as a result of his insulated testimony. It is my belief that he should be free to raise such issue by a motion to quash without the impediment of the conclusions contained in the majority opinion to the effect that he has waived his privilege and that his testimony did not relate to gambling in Kenosha county.
I am authorized to state that Mr. Justice Beilfuss and Mr. Justice Heffernan join in this concurring opinion.
*652bThe following memorandum was filed January 31, 1967.