Per curiam.
The appellant, Charles Bennett, was indicted jointly with Herbert Smith, James Lingerfelt and Marcus Ratledge for the murder of Deputy Sheriff William Cantrell, and for the murder of Officer Larry Mulkey. These two law enforcement officers of Forsyth County were killed in the early morning hours of January 10, 1972, by multiple gunshot wounds inflicted upon them. Their bodies were discovered locked in the trunk of the police car used by them. At the time of their death, they were engaged in investigating a burglary which had occurred in Forsyth County on January 8,1972, and were struck down while performing their duty. Following the discovery of the murders of these two law enforcement officers on January 10, 1972, a police alert was instigated for an automobile with a license plate bearing a specific number found written in the police car used by the two officers. This automobile was located in Atlanta and officers in that city took the car and its driver, Marcus Ratledge, into custody. The weapon used to inflict the fatal wounds on the two officers was found in the possession of Marcus Ratledge, [459]*459along with merchandise and goods taken during the commission of the burglary being investigated by the two officers, and several items taken during another burglary which occurred three days earlier in Forsyth County. Further investigation by local and state law enforcement officers disclosed evidence which implicated James Lingerfelt, Herbert Smith and the appellant in this case, Charles Bennett, in addition to Marcus Ratledge, the driver of the car. All of the suspects were taken into custody on February 4, 1972.
The present appeal deals only with the case of Charles Bennett, who, after trial and conviction, was sentenced to death. He has appealed his conviction and sentence to this court on several grounds.
Bennett was tried separately and at his trial the state introduced into evidence the testimony of Herbert Smith, one of the alleged co-conspirators, which he gave at a prior commitment hearing. Smith was called to the witness stand and the prosecuting attorney read to the court and jury Smith’s earlier testimony from the commitment hearing, pausing periodically to inquire if Smith had so testified. At that time, Smith had been indicted for the murders but had not then been tried. So Smith responded to the prosecutor’s questions by asserting his right to remain silent under the Fifth Amendment to the Constitution of the United States. The record indicates that Bennett had been present at the commitment hearing and that his counsel was given, and made use of, the opportunity to cross examine Smith at that time. His testimony at the earlier commitment hearing tended to prove the acquaintance of all the alleged co-conspirators and to establish their presence in the area of the two burglaries in Forsyth County prior to the homicides of the two officers. At Bennett’s trial, his counsel objected to the prosecutor’s method of questioning Smith on two grounds: (1) the evidence was hearsay and this questioning denied Bennett his right to confront the witness because Smith remained silent; and (2) this questioning denied Bennett his right to a fair trial because the prosecuting attorney knew Smith would assert his right to remain silent but nevertheless placed him on the witness stand to prejudice the trial jury into believing "the defendant (Bennett) must be guilty because his co-defendants are claiming the Fifth Amendment right.”
The state also introduced into evidence in the trial of Bennett’s case a statement not under oath made by James Lingerfelt while [460]*460in custody after his arrest on February 4, 1972. Lingerfelt, who was also an alleged co-conspirator under indictment for murder was called and advised by the trial court of his right to remain silent. The prosecuting attorney called Lingerfelt to the witness stand and asked him if he had talked with Agent Bert Frye of the Georgia Bureau of Investigation on February 4, 1972. Lingerfelt asserted his right to remain silent and declined to answer. The state’s counsel then commenced to read aloud the alleged statement made by Lingerfelt, while in custody, to Agent Frye, pausing at intervals to inquire of Lingerfelt if he had so stated. At each pause, Lingerfelt refused to answer. Bennett’s defense counsel objected to this questioning of Lingerfelt on the same grounds which were used in objecting to the questioning of Herbert Smith. The alleged statement made by Lingerfelt implicated the appellant, Bennett, in the murders of the two officers but indicated that Bennett had told Lingerfelt that Marcus Ratledge had done the actual killing.
Finally, the state introduced into evidence an alleged statement of Marcus Ratledge made while he was in custody shortly after his apprehension on January 10, 1972. However, Ratledge was not called as a witness for the state, and the record does not disclose his unavailability as a witness. Instead, Dectective Russell, of the Atlanta Police Department, was called and allowed to read into evidence the alleged statement of Ratledge. Appellant’s counsel objected to this statement on the grounds: (1) no showing of conspiracy had been made that would allow the statement into evidence; and (2) the statement was hearsay and Bennett was deprived of his right to confront this witness against him. The alleged statement of Ratledge indicated that he had been with appellant Bennett at the time of the shooting of the two officers and Bennett was actually the one who had shot the officers. All of this testimony was received as affirmative evidence by the court over defense counsel’s objection at the trial of appellant Bennett.
The main issue for decision on this appeal is whether the admission into evidence of this testimony — Smith’s commitment hearing testimony and the alleged statements of Lingerfelt and Ratledge — constituted a denial of appellant Bennett’s right to confront witnesses against him. Other questions arising out of the trial must be decided, but the confrontation issue is the backbone of the appeal. Held:
l.An examination of the record in this case discloses that the [461]*461statement of James Lingerfelt was made prior to the expiration of a conspiracy involving the appellant and Lingerfelt and was admissible under Code § 38-306. The exception to the hearsay rule embodied in that Code section was the subject of review by the U. S. Supreme Court in the case of Dutton v. Evans, 400 U. S. 74 (91 SC 210, 27 LE2d 213). The Dutton case dealt with a murder conviction in Georgia, previously affirmed by this court in Evans v. State, 222 Ga. 392 (150 SE2d 240), in which the declaration of a co-conspirator was admitted into evidence at the trial. It was an out-of-court, unsworn statement, and the defense attorney had no opportunity there to cross examine the declarant on the truthfulness of the statement. Nevertheless, the Supreme Court of the United States rejected the contention that this testimony was hearsay and violative of the defendant’s constitutional right of confrontation. We hold that the statement of the co-conspirator Lingerfelt in this case was admissible under Georgia’s conspiracy exception to the hearsay rule. See also, Chatterton v. State, 221 Ga. 424 (5) (144 SE2d 726), and Hutchins v. State, 229 Ga. 804 (194 SE2d 442).
The commitment hearing testimony of Herbert Smith was admissible at appellant’s trial under the provisions of Code § 38-314. See California v. Green, 399 U. S.
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Per curiam.
The appellant, Charles Bennett, was indicted jointly with Herbert Smith, James Lingerfelt and Marcus Ratledge for the murder of Deputy Sheriff William Cantrell, and for the murder of Officer Larry Mulkey. These two law enforcement officers of Forsyth County were killed in the early morning hours of January 10, 1972, by multiple gunshot wounds inflicted upon them. Their bodies were discovered locked in the trunk of the police car used by them. At the time of their death, they were engaged in investigating a burglary which had occurred in Forsyth County on January 8,1972, and were struck down while performing their duty. Following the discovery of the murders of these two law enforcement officers on January 10, 1972, a police alert was instigated for an automobile with a license plate bearing a specific number found written in the police car used by the two officers. This automobile was located in Atlanta and officers in that city took the car and its driver, Marcus Ratledge, into custody. The weapon used to inflict the fatal wounds on the two officers was found in the possession of Marcus Ratledge, [459]*459along with merchandise and goods taken during the commission of the burglary being investigated by the two officers, and several items taken during another burglary which occurred three days earlier in Forsyth County. Further investigation by local and state law enforcement officers disclosed evidence which implicated James Lingerfelt, Herbert Smith and the appellant in this case, Charles Bennett, in addition to Marcus Ratledge, the driver of the car. All of the suspects were taken into custody on February 4, 1972.
The present appeal deals only with the case of Charles Bennett, who, after trial and conviction, was sentenced to death. He has appealed his conviction and sentence to this court on several grounds.
Bennett was tried separately and at his trial the state introduced into evidence the testimony of Herbert Smith, one of the alleged co-conspirators, which he gave at a prior commitment hearing. Smith was called to the witness stand and the prosecuting attorney read to the court and jury Smith’s earlier testimony from the commitment hearing, pausing periodically to inquire if Smith had so testified. At that time, Smith had been indicted for the murders but had not then been tried. So Smith responded to the prosecutor’s questions by asserting his right to remain silent under the Fifth Amendment to the Constitution of the United States. The record indicates that Bennett had been present at the commitment hearing and that his counsel was given, and made use of, the opportunity to cross examine Smith at that time. His testimony at the earlier commitment hearing tended to prove the acquaintance of all the alleged co-conspirators and to establish their presence in the area of the two burglaries in Forsyth County prior to the homicides of the two officers. At Bennett’s trial, his counsel objected to the prosecutor’s method of questioning Smith on two grounds: (1) the evidence was hearsay and this questioning denied Bennett his right to confront the witness because Smith remained silent; and (2) this questioning denied Bennett his right to a fair trial because the prosecuting attorney knew Smith would assert his right to remain silent but nevertheless placed him on the witness stand to prejudice the trial jury into believing "the defendant (Bennett) must be guilty because his co-defendants are claiming the Fifth Amendment right.”
The state also introduced into evidence in the trial of Bennett’s case a statement not under oath made by James Lingerfelt while [460]*460in custody after his arrest on February 4, 1972. Lingerfelt, who was also an alleged co-conspirator under indictment for murder was called and advised by the trial court of his right to remain silent. The prosecuting attorney called Lingerfelt to the witness stand and asked him if he had talked with Agent Bert Frye of the Georgia Bureau of Investigation on February 4, 1972. Lingerfelt asserted his right to remain silent and declined to answer. The state’s counsel then commenced to read aloud the alleged statement made by Lingerfelt, while in custody, to Agent Frye, pausing at intervals to inquire of Lingerfelt if he had so stated. At each pause, Lingerfelt refused to answer. Bennett’s defense counsel objected to this questioning of Lingerfelt on the same grounds which were used in objecting to the questioning of Herbert Smith. The alleged statement made by Lingerfelt implicated the appellant, Bennett, in the murders of the two officers but indicated that Bennett had told Lingerfelt that Marcus Ratledge had done the actual killing.
Finally, the state introduced into evidence an alleged statement of Marcus Ratledge made while he was in custody shortly after his apprehension on January 10, 1972. However, Ratledge was not called as a witness for the state, and the record does not disclose his unavailability as a witness. Instead, Dectective Russell, of the Atlanta Police Department, was called and allowed to read into evidence the alleged statement of Ratledge. Appellant’s counsel objected to this statement on the grounds: (1) no showing of conspiracy had been made that would allow the statement into evidence; and (2) the statement was hearsay and Bennett was deprived of his right to confront this witness against him. The alleged statement of Ratledge indicated that he had been with appellant Bennett at the time of the shooting of the two officers and Bennett was actually the one who had shot the officers. All of this testimony was received as affirmative evidence by the court over defense counsel’s objection at the trial of appellant Bennett.
The main issue for decision on this appeal is whether the admission into evidence of this testimony — Smith’s commitment hearing testimony and the alleged statements of Lingerfelt and Ratledge — constituted a denial of appellant Bennett’s right to confront witnesses against him. Other questions arising out of the trial must be decided, but the confrontation issue is the backbone of the appeal. Held:
l.An examination of the record in this case discloses that the [461]*461statement of James Lingerfelt was made prior to the expiration of a conspiracy involving the appellant and Lingerfelt and was admissible under Code § 38-306. The exception to the hearsay rule embodied in that Code section was the subject of review by the U. S. Supreme Court in the case of Dutton v. Evans, 400 U. S. 74 (91 SC 210, 27 LE2d 213). The Dutton case dealt with a murder conviction in Georgia, previously affirmed by this court in Evans v. State, 222 Ga. 392 (150 SE2d 240), in which the declaration of a co-conspirator was admitted into evidence at the trial. It was an out-of-court, unsworn statement, and the defense attorney had no opportunity there to cross examine the declarant on the truthfulness of the statement. Nevertheless, the Supreme Court of the United States rejected the contention that this testimony was hearsay and violative of the defendant’s constitutional right of confrontation. We hold that the statement of the co-conspirator Lingerfelt in this case was admissible under Georgia’s conspiracy exception to the hearsay rule. See also, Chatterton v. State, 221 Ga. 424 (5) (144 SE2d 726), and Hutchins v. State, 229 Ga. 804 (194 SE2d 442).
The commitment hearing testimony of Herbert Smith was admissible at appellant’s trial under the provisions of Code § 38-314. See California v. Green, 399 U. S. 149 (90 SC 1930, 26 LE2d 489). Thus no error is shown here by the admission of this testimony.
The record is not entirely clear as to the unavailability of Marcus Ratledge as a witness. It was necessary that his unavailability be established before his statement could be admitted into evidence. Park v. State, 225 Ga. 618 (170 SE2d 687). However, even if it were error to admit the statement of Ratledge, it was harmless error beyond a reasonable doubt in view of the other clearly admissible evidence which established-the defendant Bennett’s guilt. See Chapman v. California, 386 U. S. 18 (87 SC 824, 17 LE2d 705, 24 ALR3d 1065); Harrington v. California, 395 U. S. 250 (89 SC 1726, 23 LE2d 284); and Morgan v. State, 231 Ga. 280.
2. The appellant contends he is entitled to a new trial because of an erroneous instruction to the jury by the trial court. The charge complained of is as follows: "It is further contended by the State in this case that certain statements were made in the presence and hearing of the defendant, Charles Bennett, as to the offense and how it was done, and that the defendant failed to make any answer, failed to make any denial or protest under [462]*462conditions which require such actions. In this connection, the court charges you that acquiescence or silence when the circumstances require an answer, or the denial or other conduct; may amount to an admission. Whether such statements were made in the presence and hearing of the defendant, Bennett, whether or not the circumstances were such as to require an answer, or to require a denial by him, wherein Charles Bennett failed to answer or deny, and whether such failure, if any, amounted to an admission on his part, are matters for you, gentlemen, to determine.”
Submitted June 22, 1973
Decided November 29, 1973.
Brannon, Brannon & Thompson, Robert B. Thompson, for appellant.
C. B. Holcomb, District Attorney, Arthur K. Bolton, Attorney General, Courtney Wilder Stanton, B. Dean Grindle, Jr., Assistant Attorneys General, for appellee.
The appellant argues (1) this charge was not adjusted to the evidence and (2) this charge is unconstitutional in that it would tend to deny appellant’s Fifth Amendment right to remain silent and have no inference of guilt drawn therefrom.
The evidence authorized the charge and it was not error in the circumstances of this case. See Bloodworth v. State, 216 Ga. 572 (3) (118 SE2d 374); Code § 38-409. Such a charge has been previously approved by this court.
3. The other enumerations of error have been reviewed by the court and found to be without merit. Since the evidence authorized the conviction and no error of law appears, the judgment of the trial court relating thereto must be affirmed. The defendant was sentenced to death on April 12, 1972. This sentence was not a sentence that could lawfully be imposed on that date. Stewart v. Massachusetts, 408 U. S. 845 (92 SC 2845, 33 LE2d 744); Sullivan v. State, 229 Ga. 731 (194 SE2d 410). The judgment on the sentence in this case is, therefore, reversed with direction to the trial court to enter a judgment sentencing the defendant to be imprisoned for the balance of his life as provided in Sullivan, supra, and campanion cases.
Judgment affirmed in part; reversed with direction in part.
All the Justices concur, except Undercofler, Gunter and Ingram, JJ., who dissent. Grice, P. J., and Nichols, J., concur specially.