Sam Hoover v. Dr. George J. Beto, Director, Texas Department of Corrections

467 F.2d 516

• Court: Court of Appeals for the Fifth Circuit
• Decided: December 18, 1972
• Docket: 29587
• Status: Published

Opinions

AINSWORTH, Circuit Judge.

Seldom has this Court considered a more spectacular or bizarre case than this habeas corpus petition of an experienced Texas criminal lawyer, former mayor of the City of Pasadena, Texas, who was found guilty in Texas State Court of being the mastermind and accomplice in an especially brutal and horrible assault and robbery, but who contends that he was invalidly convicted in violation of federal constitutional rights.

Sam Hoover is presently serving a sixty-year sentence imposed by the Criminal District Court of Harris County, Texas. A jury found him guilty in a separate trial as an accomplice to the crime of robbery by firearms,¹ conmut-ted by principals John Oscar Young, Calvin Sellars, and Samuel Spivey.² Hoover has appealed from the denial of his petition for habeas corpus by the United States District Court for the Southern District of Texas, Houston Division. The District Court’s opinion is reported as Hoover v. Beto, S.D.Tex. 1969, 306 F.Supp. 980.

On appeal Hoover has asserted two claims of error to the denial below of his'habeas corpus petition based on federal constitutional grounds. First, he contends that the Court erred in refusing to sustain alleged violations of his Fourth and Fourteenth Amendment rights to be free from unreasonable search and seizure. The State Trial Court admitted into evidence two diamonds seized from Hoover’s home during a nighttime search conducted by the Houston Police Department. Hoover argues that the search was made without his voluntary consent, by police officers acting under color of a search warrant which was invalid under Aguilar v. State of Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). Secondly, Hoover asserts that his right to confrontation under the Sixth and Fourteenth Amendments was infringed when the State Trial Court admitted into evidence the oral confession of alleged principal and coindictee Calvin Sellars. The confession, which also implicated Hoover as an accomplice, was admitted during the testimony of Officer C. V. Stone to whom Sellars confessed, pursuant to a well-established Texas- exception to the hearsay rule which allows the confession of a principal to be admitted at the trial of an accomplice to prove the principal’s guilt, proof of such guilt being a necessary prerequisite to conviction of an accomplice to the offense.

The panel of this Court which originally heard the case decided in Hoover’s favor on both claims of error, reversed the judgment of the District Court denying Hoover’s petition for habeas corpus, and remanded the case with directions to grant the writ and discharge Hoover, unless the State elected to retry him within a reasonable time. Hoover v. Beto, 5 Cir., 1971, 439 F.2d 913. Pursuant to Rule 35 of the Federal Rules of Appellate Procedure, the case was placed en banc by the Court. Upon rehearing en banc, after careful consideration of the issues presented and review of the entire record before us, a majority of this Court is of the opinion that the panel decision should be reversed, and the judgment of the District Court denying Hoover’s petition for a writ of habeas corpus is therefore affirmed.

I.

THE SEARCH AND SEIZURE ISSUE

The facts and circumstances surrounding the search of Sam Hoover’s home and seizure therefrom of two diamonds stolen from the Schepps’ residence are uncontroverted. They are stated in the original panel’s opinion, Hoover v. Beto, 439 F.2d at 916-918, and will be only briefly summarized here.

Officer Hodges testified that during the early morning hours of March 18, 1964, in the company of nine other law enforcement officers and the Justice of the Peace who had issued a search warrant for the search in question, he went to Hoover’s home, knocked, and Hoover answered the door. Hodges announced who he was and that he had a warrant to search his home. Hoover told him “that the search warrant was unnecessary, for [him] to come on in his house and look wherever [he] pleased.” None of the officers was in uniform, but several of them would have been well known to Hoover because of his criminal law practice in the Houston area. Hodges had the warrant in his hand when he knocked on the door. Hoover asked to see the warrant after Hodges was inside. The State Trial Court upheld the search on the ground that “Sam Hoover said it’s not necessary to have a search warrant, come on in and search the residence.”

There is no dispute as to what happened and what was said. The controversy concerns inferences and conclusions to be drawn from a known set of facts. Appellant acknowledges that the words he spoke constituted an invitation to the police to enter and search. Nevertheless, he argues in reply brief on rehearing that

“The invitation which appellant extended to the searching officers to come into his home upon his being presented with that misrepresentation [the allegedly invalid search warrant] was induced by, and solely a product of, that misrepresentation.

“Therefore any consent evidenced by that invitation could not have wholly been a product of the appellant’s free will.”

There is no affirmative evidence in the record to support the contention that the invitation was actually involuntary. Hoover did not testify at the voir dire hearing pertaining to the validity of the search when the matter was considered out of the presence of the jury during his trial in State Court, or in the proceedings below on his petition for habeas corpus.³ Rather, we are asked to draw the inference that the statement of Officer Hodges that he had a warrant weakens the meaning of Hoover’s subsequent words of invitation and the intent which those words convey in the ordinary course of human experience — namely, consent.

The State Trial Judge ruled that the words uttered by Hoover meant that Hoover was inviting the police officers to search his home, without reference to any search warrant which they possessed.⁴ The District Court below felt that while it was not bound by the findings of the State Trial Court, those findings were nevertheless entitled to great weight. 306 F.Supp. at 987. Independently, the District Court below held that the evidence was uncontradicted and established that Hoover not only consented to the search, but even invited it. The Court pointed out that the Texas Court of Criminal Appeals also found that there was invitation to search (390 S.W.2d at 762), which finding of fact affirmed the State Trial Court’s ruling.

Whether consent to search has been given is a question of fact. We only recently passed on this question in United States v. Resnick, 5 Cir., 1972, 455 F.2d 1127, where Judge Godbold noted that

“The District Judge found, on conflicting testimony, that Carlton did consent. We cannot say that this was plainly erroneous, which is our scope of review of facts found at a motion to suppress hearing.”

455 F.2d at 1133. See also United States v. Gunn, 5 Cir., 1970, 428 F.2d 1057; United States v. Montos, 5 Cir., 1970, 421 F.2d 215, cert. denied, 397 U.S. 1022, 90 S.Ct. 1262, 25 L.Ed.2d 532 (1970). Hoover places much reliance on Bumper v. State of North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968). In Bumper, the Supreme Court, through Mr. Justice White, stated:

“When a prosecutor seeks to rely upon consent to justify the lawfulness of a search, he has the burden of proving that the consent was, in fact, freely and voluntarily given. This burden cannot be discharged by showing no more than acquiescence to a claim of lawful authority. A search conducted in reliance upon a warrant cannot later be justified on the basis of consent if it turns out that the warrant was invalid. The result can be no different when it turns out that the State does not even attempt to rely upon the validity of the warrant, or fails to show that there was, in fact, any warrant at all.”

391 U.S. at 548-550, 88 S.Ct. at 1792. The holding of the case, however, was much narrower and was obviously based on its particular facts, since the Court said:

“We hold that Mrs. Leath did not consent to the search, and that it was constitutional error to admit the rifle in evidence against the petitioner.

391 U.S. at 550, 88 S.Ct. at 1792.

The majority holding in Bumper was undoubtedly based on strong circumstances.⁵ Our own view of the testimony is that when attorney Sam Hoover told Police Officer Hodges that his warrant was not necessary and to come on into his home and search wherever he wanted, this constituted clear and convincing evidence of voluntary consent to the search, irrespective of the validity of the warrant. Hoover voluntarily consented to and invited the search. That consent was neither coerced nor compelled by the search warrant. The argument that express declarations of invitation and consent, such as were present here, constitute nothing “more than acquiescence to a claim of lawful authority” neither comports with reason and logic nor with human experience and common sense.

The Texas State rule of law prior to Bumper was not substantially different from the principles upon which Bumper is based. In Stanford v. State, 1942, 145 Tex.Cr.R. 306, 167 S.W.2d 517, on which the Texas court relied to find consent, the Texas Court of C0riminal Appeals stated:

“This court has frequently held that when a party was advised that officers had a warrant to search the premises the mere statement of the party that it was all right to go ahead was not regarded as a waiver of the right to question the regularity of the warrant nor of consent to the search. * * * On the other hand, where the party tells the officer that a warrant to search is unnecessary, and no issue is made on the question, consent is shown. * * * The question turns on the point as to whether the party really gives consent for the search, or merely acquiesces in the officer pursuing his legal rights under a valid warrant.” Id. 167 S.W.2d at 519. [Citations omitted.]

In Stanford, after the officer told defendant that he had a warrant, defendant stated that it was not necessary to have a warrant and “to go any place in the hotel [he] wanted to go.” Id. at 519. The Court held that the defendant had consented to the search and that the consent operated as a waiver of the right to object to the validity of the warrant. That was the situation here, and it is apparent the circumstances differ from those in Bumper.

As the District Court below expressed it:

“In Bumper the party in question was a 66 year old Negro widow of patently limited education who was neither suspect at the time nor an eventual defendant in the criminal proceedings. Petitioner here was himself a lawyer with extensive experience in criminal law and its practical realities. While this is not necessarily a controlling distinction here, it is a circumstance.”

306 F.Supp. at 986.

Furthermore, we hold that the search of Hoover’s home was not constitutionally invalid because of Aguilar v. State of Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). The State of Texas concedes that if Aguilar applies to the search of Hoover’s home, the affidavit supporting the search warrant does not meet the probable cause standards prescribed by Aguilar. The State argues, however, that Aguilar does not apply to the search in question which occurred about three months before Aguilar was decided on June 15, 1964. The original panel held that “Hoover need not rely on Aguilar retroactively since he had not been tried and convicted when the decision in Aguilar was rendered.” 439 F.2d at 917. Subsequent to the panel decision, however, the Supreme Court decided Williams v. United States, 401 U.S. 646, 91 S.Ct. 1148, 28 L.Ed.2d 388 (1971), which held that a prior decision which narrows the scope of permissible searches is not to be retroactively applied to searches conducted prior to the date of decision. Thus, because the Hoover search was made prior to the Supreme Court’s decision in Aguilar, it is not affected thereby. The panel’s holding that the search of Hoover’s home was constitutionally invalid is expressly rejected by us.

II.

THE CONFRONTATION ISSUE

The Sixth Amendment to the United States Constitution provides that “In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him. ...” The Supreme Court in Pointer v. State of Texas, 380 U.S. 400, 403, 85 S.Ct. 1065, 1068, 13 L.Ed.2d 923 (1965), held that “the Sixth Amendment’s right of an accused to confront the witnesses against him is ... a fundamental right and is made obligatory on the States by the Fourteenth Amendment.” At Hoover’s trial, the State Trial Judge admitted into evidence the oral confession of Calvin Sellars through the testimony of Houston Police Officer Stone. The confession made reference in part to alleged accomplice Hoover’s participation in the crime committed by principals Young, Spivey, and Sellars. The confession was admitted pursuant to Texas law on the basis of a well-established exception to the hearsay rule. Hoover contends, however, that he was denied the right to confront and cross-examine Sellars, the confessor, all in violation of the Sixth and Fourteenth Amendments. After careful consideration of the record, we hold that under the facts and circumstances before us, Hoover’s Sixth and Fourteenth Amendment rights were not violated. See California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970); Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970). Moreover, if there was error of constitutional proportions, the record shows that it was harmless beyond a reasonable doubt. See Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969); Chapman v. State of California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).

A. BACKGROUND

Hoover was indicted as an accomplice to the robbery for which Sellars, Young, and Spivey were indicted as principals.⁶ Under Texas law, in order to convict an accomplice, the State must sustain a two-fold burden of proof. It must first prove beyond a reasonable doubt that the principals were guilty of the crime alleged in the indictment.⁷ Then it must prove beyond a reasonable doubt that the alleged accomplice, before the robbery, advised, commanded, or encouraged his co-indictees to commit the offense and that he was not present at the time of its commission.

The Texas rule of evidence before us is particularly tailored to the foregoing substantive rule of criminal law and is an exception to the hearsay rule, having been fashioned by judicial decisions of Texas courts dating from at least 1881.⁸ In Browney v. State, 1934, 128 Tex.Cr.R. 81, 79 S.W.2d 311, 314, the Court stated that Texas cases which had applied the rule “ . . . go no further than to give effect to the general rule that the admissions or confessions of the principal (if they would be admissible if the principal were on trial) are admissible on the trial of the accomplice, not for the purpose of proving the guilt of the accomplice, but for the purpose solely of proving the guilt of the principal.” The rule is followed by courts of other jurisdictions ⁹ and over the years has been recognized by the commentators.¹⁰ In Schepps v. State, Tex.Cr.App.1968, 432 S.W.2d 926, the Texas Court of Criminal Appeals noted that

“This exception is apparently bottomed on the fact that the State has the burden of proving the guilt of the principal in such case and, therefore, any testimony which would be admissible to show the guilt of the principal if he were on trial is admissible on the trial of the accomplice for the purpose of showing the guilt of the principal.”

Id. at 940. See also Browney v. State, 1934, 128 Tex.Cr.R. 81, 79 S.W.2d 311, 314.

In Texas, the confessor must also be specifically named in the indictment as a principal.¹¹ The confession cannot be used as evidence against the defendant who is on trial as an accomplice and is not admissible to connect the accomplice with the offense charged against him. Cf. Pine v. State, 1938, 134 Tex.Cr.R. 396, 115 S.W.2d 918.

Texas has fashioned a limitation on this rule of evidence applicable when the principal’s confession in some way refers to the guilt of the accomplice on trial. It was summarized in Browney v. State, supra:

“Statements in the confession of the principal which relate solely to the guilt of the accomplice, and which throw no light on the principal’s actions, should be excluded. * * * However, if the expressions connecting the accomplice with the offense, when eliminated, render the confession incomplete and fragmentary, they may be received in evidence. In that event, the trial court should carefully guard the rights of the accomplice on trial by limiting the purpose of the confession to establishing the principal’s guilt.” [Citations omitted.]

79 S.W.2d at 314. See also Smith v. State, 1922, 91 Tex.Cr.R. 15, 237 S.W. 265, 267. The State Trial Court construed the rule to permit introduction of references which are “interwoven” with the confession of guilt of the principal.¹²

Superimposed on the Texas rule is the principle established in Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), that “A defendant objecting to the admission of a confession is entitled to a fair hearing in which both the underlying factual issues and the voluntariness of his confession are actually and reliably determined.” 378 U.S. at 380, 84 S.Ct. at 1783. In Texas, an accomplice on trial separately is entitled to defend the State’s case against the principal to the same extent that he is entitled to defend the case against himself. Chapman v. State, Tex.Cr.App.1971, 470 S.W.2d 656. Pursuant to Jackson v. Denno, supra, when the State has indicated that it intends to use a confession, the Trial Court, upon timely request of the opponent of the evidence, must hold a hearing outside of the presence of the jury on the issue of voluntariness and rule on the admissibility of the confession. If the Court finds the confession involuntary, it must be excluded or the judgment against the accomplice will be reversed. Chapman v. State, Tex.Cr.App.1971, 470 S.W.2d 656, 661. If the Court finds the confession voluntary, it is admitted. The defendant, of course, retains the right to attack its voluntariness before the jury. But in this instance, the attack centers on the weight and not on the admissibility of the evidence. Once the confession is admitted, the Trial Court must instruct the jury that it can only be used as evidence to prove the confessor’s guilt, and cannot be considered as evidence against the defendant accomplice.

The rule was used on two occasions at Hoover’s trial: first, when the written confession of John Oscar Young was introduced; secondly, when the oral confession of Calvin Sellars was introduced through the testimony of Officer C. V. Stone. Only the propriety of the use of Sellars’ confession is before us for review. In each instance, the State Trial Court carefully followed the Texas rule of evidence.

Young’s confession was written and the Court decided to “bracket out” those portions thereof which referred to Hoover.¹³

Subsequently, the State sought to introduce Calvin Sellars’ oral confession through the testimony of Officer C. Y. Stone to show Sellars’ guilt as a principal. Stone was called to the stand in the presence of the jury to testify in the State’s ease in chief. He testified that during his investigation he had recovered a jar containing certain items of jewelry. The State had already proved that the jar and the jewelry had been stolen from the Sehepps’ residence. Stone testified that after his arrest, Sellars had told him the items were buried in a yard adjacent to his mother’s residence. When the prosecutor called for the contents of the oral confession, the defense demanded and secured a hearing outside of the presence of the jury on voluntariness and also sought to have excluded any references to Hoover. As to references to Hoover contained in Sellars’ confession, the State Trial Court ruled in accordance with Texas law and consistent with its former ruling, that

“The ruling of this Court was the same if it was a written statement or oral confession. If the testimony or the written confession is so interwoven, this Court holds it is admissible even if it is an accomplice. In the confession of John Oscar Young, the Court held that particular paragraph was not so interwoven it could not be separated as to make the written statement intelligible, and it is an oral confession in this instance.”

An extensive hearing was held on the voluntariness of Sellars’ confession, at the end of which the Court ruled that the confession was voluntary and Sellars’ rights were not violated.¹⁴ The jury returned to the courtroom and Officer Stone resumed the stand at which time he related the substance of the confession.

Stone first identified the jar and jewelry which Sellars recovered in the back yard of his mother’s residence. During this time Sellars related his part in the Schepps’ robbery. Sellars told him that Young and Spivey went to the Schepps’ home and robbed them. Sel-lars told him that he had received a phone call from Sam Hoover asking him to take part in the robbery. Thereafter, he met Spivey and Young at his house. Spivey and Young were to supply the weapons. On the day of the robbery, Young and Spivey picked up Sellars and proceeded to the Schepps’ residence in Sellars’ Mercury automobile. They parked the car a short distance from the scene and made their way through some bushes to the house. While they were trying to figure out a way to get inside the house, a lady (Mrs. Tuck) came out the back door. Sellars hit her with a pistol or shotgun and knocked her down. Young and Spivey went into the house. Sellars remained outside for five or ten minutes. When he got in the house things were torn up and people were scattered about. Sellars said that a shot had been fired and he thought someone had been shot. Young told him that he had fired the shot to frighten them. Sellars brought Mrs. Tuck into the house and made her sit on the floor. He tied her hands and’put the Schepps’ baby in her lap. Stone further testified that Sellars told him that they had alternately taken turns torturing the persons in the house since they were unable to locate the money. Sellars told Stone that they had jerked a cord from a table lamp and shocked some of the people. Young sent him downstairs to get a knife, to heat it, and bring it back. Sel-lars got the knife and they burned Mrs. Schepps with it, by laying the knife on her side. Sellars told Officer Stone they were looking for $300,000, which they did not find. However, Sellars told him that each robber received approximately $1,100 or $1,200 apiece from the robbery. The robbers also took several pieces of jewelry from the house. Except for one ring, Sellars kept the jewelry with him and buried this jewelry in the jar in his back yard. Sellars told Stone that when he went through the jewelry he found a necklace consisting of a small gold chain which had three diamonds on a brooch. Sellars also told Officer Stone that Young had stolen a diamond ring. When Sellars returned from the robbery with the jewelry, he called Hoover and told him that he had the articles and was going to throw them away. He was advised not to throw them away but to bring the whole lot over to Pasadena so that Hoover could examine it. After talking to Hoover, Sellars started for Pasadena. At one point he was approached by the police who “were about to arrest him.” He went into a small grocery store and hid the necklace under a soap box. As he was leaving the store, he was stopped by the officers and questioned. He was not taken into custody. Sellars then told Stone that he went home and called Sam Hoover and told him he had been stopped. He told Hoover he hid the necklace in the store. He was told by Hoover to stay away from the place because he might be followed. Nevertheless, Sellars went back to the store three or four hours later and recovered the necklace. He then went to Hoover’s house in Pasadena and was let in through the rear door. He showed Hoover the necklace. Hoover took the necklace and told him to sit down and wait. Hoover went outside and when he returned he handed him the mounting wrapped in a small piece of blue paper. The diamonds had been removed. Hoover told him to dispose of the mounting, which he did on the way-back to Houston, by tossing it into a horse pasture from which it was not recovered. But he kept the chain from the necklace and buried it with the other items he had stolen.

Sellars also told Stone that during the robbery and after they got into the house the trio was to receive its instructions from Hoover as to how to proceed and as to where to look for the money. Sel-lars told him that Young called Hoover and that they received instructions and looked where they were told to look.

In his charge to the jury, the Court made the following limiting instruction:

“A conviction cannot be had upon the testimony of an accomplice unless the jury first believes that the accomplice’s evidence is true and that it shows the defendant is guilty of the offense charged against him; and even then you cannot convict unless the accomplice’s testimony is corroborated by other evidence tending to connect the defendant with the commission of the offense charged; and the corroboration is not sufficient if it merely shows the commission of the offense, but it must tend to connect the defendant with its commission.

“You are charged that Samuel Spivey is an accomplice witness, if any offense was committed, and you are instructed that you cannot find the defendant guilty upon his testimony unless you first believe that the testimony of the said Samuel Spivey is true and that it shows the defendant is guilty as charged in the indictment; and even then you cannot convict the defendant unless you further find and believe that there is other evidence in the case, outside of the evidence of the said Samuel Spivey, tending to connect the defendant with the commission of the offense charged in the indictment; and, then, from all of the evidence you must believe beyond a reasonable doubt that the defendant is guilty.

“There has been introduced by the State in this case a written statement allegedly made by John Oscar Young. Additionally, there has been introduced into evidence by the State oral statements allegedly made to Officer C. V. Stone by Calvin Sellars. Concerning these two items of evidence, you are instructed that such evidence was admitted before you solely for the purpose of showing, if it does, that the said John Oscar Young and Calvin Sel-lars committed the offense of robbery by firearms as charged in the indictment. You are instructed that you cannot consider this said evidence as any evidence against the defendant.

“You are further instructed that the written statement allegedly made by John Oscar Young cannot be used to corroborate the oral statements allegedly made to Officer C. Y. Stone by Calvin Sellars as to their, the said John Oscar Young and Calvin Sellars, committing, if they did, the robbery in question. You are further instructed that the oral statements allegedly made to Officer C. V. Stone by Calvin Sel-lars cannot be used to corroborate the written statement allegedly made by John Oscar Young as to their, the said John Oscar Young and Calvin Sellars, committing, if they did, the robbery in question.

“You are further instructed that neither the written statement allegedly made by John Oscar Young nor the oral statements allegedly made to Officer C. V. Stone by Calvin Sellars may be used to corroborate the testimony of Samuel Spivey.”

B. CONSTITUTIONAL VALIDITY OF THE TEXAS RULE

The Texas rule permitting introduction of a principal’s oral or writ-. ten confession at the trial of an accomplice to prove the guilt of the principal when the confession does not implicate the accomplice does not violate the Sixth Amendment.¹⁵ The question before us, however, is whether the Sixth Amendment made obligatory on the States by the Fourteenth Amendment, Pointer v. State of Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965), is violated by the introduction of a principal’s confession which also implicates the accomplice. As a general rule, the whole of a confession should be introduced, unless parts of it, reflecting the commission of other crimes, for example, can be excluded without damaging the whole. See 2 Wharton’s Criminal Evidence § 361, pp. 68-74 (12th ed. 1955). Wigmore calls the rule the “principle of completeness.” “It is commonly said that the whole of the confession or admission must be taken together . . . .” VII Wig-more, Evidence § 2100(c), p. 493. Cf. United States v. Wenzel, 4 Cir., 1962, 311 F.2d 164. However, Wigmore notes that because confessions are ordinarily not admissible against third persons, “the names of other co-indictees mentioned in a confession used and read against the party making it, were by most English judges ordered to be omitted. But by other judges the names were ordered read and the jury instructed not to use the confession against them. In Canada and the United States the latter practice is favored.” VII Wigmore, Evidence § 2100(d), p. 496.

Texas has adopted a combination of both practices, deleting or editing parts and relying upon specific instructions to remedy the remainder. If the principal’s confession contains parts which tend solely to implicate the accomplice, these parts should be excluded. If the principal’s confession contains portions which, while they tend to implicate the accomplice are nevertheless so interwoven with the confession of the guilt of the principal as not to permit a deletion without confusing or obscuring the substance of the confession, these portions are admissible. In either case, the jury must be instructed that the evidence is admissible only against the principal, and cannot be used as evidence against the accused.

This Court has specifically approved the use of otherwise admissible confessions where references to codefendants have been deleted, for the situation is the same as if no incriminating statements existed initially. Posey v. United States, 5 Cir., 1969, 416 F.2d 545, 551. See also United States v. Sims, 5 Cir., 1970, 434 F.2d 258, 259; Menendez v. United States, 5 Cir., 1968, 393 F.2d 312; Barton v. United States, 5 Cir., 1959, 263 F.2d 894; Calloway v. United States, 1968, 130 U.S.App.D.C. 273, 399 F.2d 1006, 1008, cert. denied, 393 U.S. , 89 S.Ct. 464, 21 L.Ed.2d 448 (1968); Comment, Hearsay, The Confrontation Guarantee and Related Problems, 30 La. L.Rev. 651, 665 (1970). Texas, however, permits inculpatory references against an accomplice to be heard by the jury, subject to limiting instructions by the court to regard the whole confession as evidence only against the declarant confessor. The issue is whether admission of Sellars’ oral confession violated Hoover’s Sixth and Fourteenth Amendment rights. We hold that it did not.

The panel concluded that “No instructions to the jury could have eliminated the damaging and prejudicial effect on the defense.” 439 F.2d at 923. The panel cited no authority for the holding. Indeed, the holding is valid only if Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), is applicable. Bruton was not cited by any of the parties hereto nor by the panel. Bruton held that “because of the substantial risk that the jury, despite instructions to the contrary, looked to the incriminating extrajudicial statements in determining petitioner’s guilt, admission of Evans’ confession in this joint trial violated petitioner’s right of cross-examination secured by the Confrontation Clause of the Sixth Amendment.” 391 U.S. at 126, 88 S.Ct. at 1622. Bruton, however, is distinguishable from the situation here. Hoover’s trial was not a joint trial. Two defendants were not being tried side by side as they were in Bruton. Only Hoover was on trial, having been granted a severance from the principals. Trial of principals and accomplices is inherently different from a trial of coconspirators or eodefendants. While coconspirators are coequals in crime as a matter of substantive criminal law, principals and accomplices are not. Further, in this case the State was required to prove Sellars’ guilt as a prerequisite to the conviction of Hoover as an accomplice; there was no such prerequisite in Bruton.

Finally, an examination of the testimony taken during the voir dire examination of certain prospective jurors on which the defendant took a bill of exception shows extensive questioning of virtually every juror as to his ability to consider confessions as evidence only in accordance with the Court’s instructions. Nothing in this record convinces us that they did not.

In short, we do not think that it was unreasonable for the State Trial Judge to conclude, in the exercise of reasonable discretion, that a limiting instruction to the jury could take care of any possible adverse effect, because of the admission of Sellars’ oral confession.

Pointer and its progeny have resulted in numerous confrontation clause challenges to established laws of evidence.¹⁶ The cases have created an unsettling effect on the law of evidence.¹⁷ However, in California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970), and Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970), the Supreme Court has now delineated a working theory of the role of the confrontation clause in the law of evidence, particularly with regard to the validity of constitutional claims which allegedly arise when hearsay evidence is admitted, either in accordance with recognized exceptions or in violation thereof. See also Gelhaar v. State, 41 Wis.2d 230, 163 N.W.2d 609 (1969), cert. denied, 399 U.S. 929, 90 S.Ct. 2250, 26 L.Ed.2d 797 (1970).

In California v. Green, supra, the Supreme Court was confronted with a Sixth (through Fourteenth) Amendment challenge to a California statute that permitted introduction of prior inconsistent statements of a witness, not just for purposes of impeachment, but for the truth of the matters declared. The California Supreme Court ruled the statement inadmissible under the Sixth Amendment beeause no opportunity for cross-examination had been afforded at the time the statement was made. The Supreme Court of the United States reversed the judgment. Mr. Justice White wrote for the majority:

“Our task in this ease is not to decide which of these positions, purely as a matter of the law of evidence, is the sounder. The issue before us is the considerably narrower one of whether a defendant’s constitutional right ‘to be confronted with the witnesses against him’ is necessarily inconsistent with a State’s decision to change its hearsay rules to reflect the minority view described above.”

399 U.S. at 155, 90 S.Ct. at 1933. The Supreme Court approved the California rule because the declarant’s appearance at trial subject to cross-examination “will still afford the trier of fact a satisfactory basis for evaluating the truth of the prior statement.” 399 U.S. at 161, 90 S.Ct. at 1936. The Court, however, noted that because the hearsay declarant was present and testifying in the case, that “We have no occasion in the present case to map out a theory of the Confrontation Clause that would determine the validity of all such hearsay ‘exceptions’ permitting the introduction of an absent declarant’s statements.” Id. at 162, 90 S.Ct. at 1937. The late Mr. Justice Harlan, in his concurring opinion in California v. Green, 399 U.S. at 172, 90 S.Ct. at 1942, pointed out the dangers of indiscriminately equating “confrontation” with “cross-examination.”

“If ‘confrontation’ is to be equated with the right to cross-examine, it would transplant the ganglia of hear say rules and their exceptions into the body of constitutional protections. The stultifying effect of such a course upon this aspect of the law of evidence in both state and federal systems need hardly be labored, and it is good that the Court today, as I read its opinion, firmly eschews that course.”

Another important case on this question arose later in Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970), which emanated from this Circuit. In Dutton, Mr. Justice Stewart’s plurality opinion marked a new stage in the development of the theory of the confrontation clause in relation to rules of evidence. Mr. Justice Stewart recognized “that the Sixth Amendment’s Confrontation Clause and the evidentiary hearsay rule stem from the same roots. But this Court has never equated the two, and we decline to do so now.” 400 U.S. at 86, 91 S.Ct. at 218. Rather, “the mission of the Confrontation Clause is to advance a practical concern for the accuracy of the truth-determining process in criminal trials by assuring that ‘the trier of fact [has] a satisfactory basis for evaluating the truth of the prior statement.’ California v. Green, 399 U.S., at 161, 90 S.Ct., at 1936.” 400 U.S. at 89, 91 S.Ct. at 220. In Dutton, certain indicia of reliability of the statement offered by testimony other than that of the declarant himself provided the satisfactory basis for its admissibility.

When Dutton was before us, Judge Gewin wrote for the Court that “when rational substitutes for the benefits of confrontation actually exist, there is no reason to exclude hearsay evidence. Although we express no view as to the constitutional validity of any exception to the confrontation requirement which has not been ruled upon, it is important to point out that generally recognized exceptions to the hearsay rule have developed from a painful process of rationalizing the denial of confrontation.” 5 Cir., 400 F.2d 826 at 830. But the process of rationalization of the denial of cross-examination has as its genesis the substitution of that satisfactory basis for evaluating the truth of the prior statement to which Mr. Justice Stewart referred, which is itself “confrontation.” Thus it is that confrontation is broader than cross-examination. Cross-examination, notes Wigmore in an oft-quoted statement, “is beyond any doubt the greatest legal engine ever invented for the discovery of truth.” V Wigmore, Evidence § 1367, p. 29 (3d ed. 1940). But to hold that it is the only method to discover the truth would create an absolute barrier to the admission of any hearsay evidence. It is obvious that if the framers of the Constitution had desired to protect a right of “cross-examination” rather than “confrontation” the Sixth Amendment would have been drafted to that effect. Under Dutton, the mission of the confrontation clause is to assure that the trier of fact is provided with a satisfactory basis for evaluating the truth of the evidence presented to it, whether the evidence is hearsay or non-hearsay and whether the satisfactory basis is provided by cross-examination or otherwise. The Sixth Amendment is violated where there is no satisfactory basis.¹⁸

Neither the Sixth nor the Fourteenth Amendment is violated when hearsay evidence is admitted in accordance with recognized exceptions to the hearsay rule because the fundamental values and notions which are the foundation for the exception and which permit its introduction as a matter of the law of evidence also satisfy the Sixth Amendment's demand for indicia of reliability. A satisfactory basis for evaluating the truth of the hearsay statement is afforded by presumed trustworthiness which results from common sense recognition of basic characteristics of human nature underlying most exceptions to the hearsay rule. For example, spontaneous exclamations are admissible on the assumption that "when a man is in the instant grip of violent emotion, excitement or pain, he ordinarily loses the capacity for reflection necessary to the fabrication of a falsehood, and `the truth will out.'" 1 C. McCormick and R. Ray, Texas Law of Evidence § 913, pp. 683-684 (2d ed. 1956). Similarly, confessions and other declarations against interest are admissible on the assumption that men do not state facts contrary to their own interest in the ordinary course of events. Other such assumptions underlie most of the recognized exceptions. The trier of fact in either case remains the ultimate judge of the reliability of and the weight to be accorded to the evidence ruled admissible.

Where hearsay evidence is admitted, the record must affirmatively show those indicia of the statement's reliability and trustworthiness which in turn serve as adequate substitutes for the right of cross-examination. The Solicitor General of the United States suggests that Dutton v. Evans "is basically a decision in the realm of constitutional method, and specifically in the area of federal-state relationships. It may fairly be said that there is more chance of achieving justice through Dutton v. Evans than through a decision which would have solidified the law of evidence in all the states into a federal mold." B. N. Griswold, The Due Process Revolution and Confrontation, 119 U.Pa.L.Rev. 711, 727-728 (1971). Indeed, in California v. Green, supra, Chief Justice Burger (concurring) emphasized "the importance of allowing the States to experiment and innovate, especially in the area of criminal justice. If new standards and procedures are tried in one State their success or failure will be a guide to others and to the Congress." ¹⁹ 399 U.S. at 171, 90 S.Ct. at 1941.

Voluntariness is the first and foremost safeguard and "indicia of reliability" of a confession. Here, Sellars' confession was found to be voluntary after a full hearing on that issue.²⁰ But voluntariness alone is not enough to establish the competency and trustworthiness of the evidence. The confession must also be corroborated. Wharton states that “According to the overwhelming weight of authority, the evidence corroborating the confession must relate to - and tend to establish the corpus delecti.” 2 Wharton’s Criminal Evidence § 394, p. 134 (12th ed. 1955).

At Hoover’s trial, Sellars’ confession of his own guilt which also implicated Hoover was amply corroborated by the testimony of other witnesses and by physical evidence introduced. There can be no doubt that there was “substantial independent evidence which would tend to establish the truthworthiness of the statement.” Opper v. United States, 348 U.S. 84, 93, 75 S.Ct. 158, 164, 99 L.Ed. 101 (1954).

C. HARMLESS ERROR BEYOND A REASONABLE DOUBT

Spivey’s amply corroborated testimony was the heart of the case against Hoover. His testimony together with other evidence, when considered apart from the incriminating portions of Sellars’ confession, made the State’s case against Hoover overwhelming. Spivey testified that he had known Hoover since 1961. He testified that he went to the Sehepps’ residence on the night of March 11, 1964, in the company of Young and Sellars, for the purpose of robbing them. Spivey went to Hoover’s home. He was let in the front door and directed to Hoover’s garage apartment known as the “dog house.” There he met Young and Hoover to plan the robbery. Hoover told them to “get you a car and equipment [his guns] and get ready to go in.” He told Spivey that Mrs. Sehepps was a “hard case” and would not want to give up the money — to “use your own judgment on what to do.” Spivey and Young left to look for a ear which they could steal to use in the Sehepps’ robbery. They did not find one. Nevertheless, they drove to the Sehepps’ home and tried to enter. When they failed, they returned to Hoover’s home. They told Hoover they needed another man to do the job. Hoover made a call and got Calvin Sellars’ address. Hoover told Spivey and Young that Sel-lars was the only one on the streets who was robbing.

Spivey related that on the night of the robbery, prior to going to the Sehepps’ home, he called Hoover to tell him that they were going in and that he would call him when the robbers got ready to leave. The trio, Young, Sellars and Spivey, traveled to the Sehepps’ residence in Sel-lars’ 1956 Mercury and parked on a side street near the house. After parking, the robbers sneaked up to the house and considered how to enter. Then Mrs. Tuck came out. Sellars grabbed her and when she started screaming, Spivey hit her in the head with his shotgun and knocked her over. Sellars remained behind with Mrs. Tuck while Spivey entered through the back door and went upstairs. Young followed. Mr. Sehepps was coming through the door as Spivey entered the bedroom. Spivey hit him and knocked him back against the wall. Thereafter, the victims were taped up and the torture commenced. The robbers periodically searched for money and alternatively tortured the victims. Hoover had told them there was $300,000 in the house. Hoover had not told them where it was. He gave a few suggestions on where to look: in the deep freeze, on the shelves in the kitchen, in drawers, and for a safe.

During the commission of the crime Spivey and Young telephoned Hoover for additional instructions on where to search for the money, which was never found. Spivey testified that he listened to the conversations with Hoover on a “little gold phone in the bathroom.” Spiv-ey testified that Young called Hoover first and identified himself. Hoover asked what the phone number was. Young gave him the number and Hoover called back. Spivey recognized the voice as that of Hoover. He had talked to Hoover on the phone on other occasions. When Hoover returned the call, Young asked him where he wanted them to look. Hoover said to check the attic and a number of other places. Young asked Hoover what he wanted to do about the “old lady,” Mrs. Schepps, because she would not tell where the money was. Hoover replied, “Use your own judgment, she is a hard case, she’s been in the business a long time.” Young asked Hoover if he wanted them “to kill them now, you know, to scare the people.” Spivey hung up before he heard the response.

Each of the three victims heard parts of the conversations. Mrs. Tuck testified that one of the masked robbers placed a call and told “whoever he was talking to on the phone they had not found the big money and he said do you want me to kill them now . . . .” Subsequently, the man gave instructions to be sure to search the deep freeze. Mr. Schepps heard one call, after which “he went to giving them instructions, the others, his friends ... to look for the money upstairs, not downstairs.” Mrs. Schepps, lying near the phone, testified that she actually overheard the instructions being given, although she could not identify the voice.

Spivey testified that after the robbery, the three fled to a little drive-in. They argued all the way over there about the shooting. They split up the money and continued to argue. Spivey went inside to get some cigarettes. When he returned, Young told him that he had just spoken to Hoover who told Young to bring the five-carat diamond to him. The last time Spivey saw the diamond ring was when he gave it to Young, immediately after the robbery. A couple of days after the robbery, Spivey saw Hoover at a drive-in restaurant, where he talked with him about the robbery. Hoover showed him a police report stating that somebody else was under investigation for the crime, implying that Spivey was safe. Spivey told Hoover he was going to Mexico. Hoover said to play it cool down there and to be back by Monday to be in court. Hoover was representing Spivey in another case set for that Monday.

Diamonds stolen from the Schepps’ residence were later found in Hoover’s home in a dresser drawer during the search previously discussed.

William J. Lyon, Jr. testified that he met Hoover in February of 1964 at Hoover’s office in the Scanlan Building, Houston, Texas. Lyon’s mother was thereafter employed by Hoover to manage certain apartments in San Antonio, Texas, where he and his mother were living. Lyon testified that he knew John Oscar Young, whom he identified in court at Hoover’s trial. Lyon testified that on the day following the robbery, he saw Young sitting in the outer office of Hoover’s suite of offices and that he saw Young go into Hoover’s office. Spivey, of course, had testified that Hoover told Young to bring the stolen diamond to him. Hoover sent Lyon downstairs to buy a light bulb for a lamp in his office. When Lyon returned he saw Young leave the office. Hoover again sent Lyon downstairs to buy a newspaper. When he returned Hoover called him into his own office and asked him to lock the door behind him as he entered. Hoover said he wanted to show Lyon something and produced a very large man’s diamond ring. Hoover said it was probably a hot ring and probably came from the Schepps’ robbery. Hoover asked Lyon if he knew who Young was. When Lyon told him that he did not, Hoover told him that Young was a thief. He then showed Lyon a woman’s brooch on a chain. Lyon described it as yellow gold with a flowery design, with diamonds or pearls on it.

According to Lyon, a few days later, Hoover came to the San Antonio apartments to talk with Lyon. Hoover knew that Lyon had by that time given a statement to the Houston Police Department. Hoover wanted to know what Lyon had told the police and when Lyon told him that he had related the events he had seen at Hoover’s office, Hoover acted rather annoyed. He said that he did not want Lyon to testify. Lyon’s mother, who was present at this conversation, told Hoover that she had heard he was a pretty rough character and that he would just as soon rub somebody out as not. Hoover replied that “if you are out of the state you wouldn’t have to be rubbed out, would you ? ” Lyon and his mother agreed to leave. Several days later, Lyon and his mother stopped at Hoover’s office to pick up some money which Hoover offered them if they would leave. Hoover sat down at a typewriter in his office and typed out an affidavit for Lyon to sign contradicting what he had told the police. Lyon signed the statement. After Hoover gave his mother $150, they both left town. Mrs. Lyon took the witness stand and confirmed what her son had stated.

The District Court below ruled on the question of harmless error in a well-reasoned discussion as follows (306 F.Supp. at 993):

“In the recent case of Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (June 2, 1969), the United States Supreme Court applied the ‘harmless error’ doctrine of Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705, 24 A.L.R.3d 1065 in a state criminal trial involving incidental and cumulative confession hearsay that was otherwise the subject of limiting instructions by the trial court. The circumstances in Harrington were patently less compelling of this result than those that exist here. It was a joint criminal trial and therefore directly involved the doctrine announced in Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476, concerning the Confrontation Clause. There, as here, the evidence of record against the accused was manifest and even overwhelming — a circumstance which may be deemed persuasive although certainly not dispositive where a constitutional right is involved. 395 U.S. at 254, 89 S.Ct. 1726. In Harrington, as here, there were other confessions introduced with limiting instructions. In Harrington one of the codefendants actually testified and was subjected to cross-examination by the codefendant Harrington’s trial counsel. Here, of course, the co-indictee, Samuel Spivey, testified as a state’s witness at the separate trial and was subject to the most searching cross-examination desired by Petitioner’s trial counsel. Harrington was followed in Neal v. United States, 9 Cir., 415 F.2d 599 (August 13, 1969) even though the other co-defendant-confessor in the joint trial declined to testify and was not cross-examined.

“The United States Court of Appeals for the Fifth Circuit in United States v. Cohen et al., 5 Cir., 418 F.2d 68 (October 30, 1969), treated the question of testimony that was technically hearsay but which was otherwise ‘ * * * secondary and incidental to * * * admissible rebuttal evidence.’ Viewing the technical hearsay as substantive evidence rather than as limited to impeachment purposes, and thus assuming error only arguendo, the Court of Appeals found the hearsay in question ‘harmless’ although there were no limiting instructions below and none requested and the case was on direct review. Indeed, without reaching a Confrontation Clause issue, the Court of Appeals for the Fifth Circuit has adopted the definition of technical hearsay as being ‘ * * * a statement made by an unavailable declarant and offered for the truth of the matter in the statement.’ Davis v. United States, 5 Cir., 411 F.2d 1126, 1127 (May, 1969), citing and quoting Brown v. United States, 5 Cir., 403 F.2d 489, 491. Under this traditional definition of technical hearsay, legally as well as rhetorically, the door would seem clearly open to- curative instructions in an appropriate case. See also: Campbell v. United States, 6 Cir., 415 F.2d 356, for the proposition intimated in Bruton, 391 U.S. at 128, n. 3, 88 S.Ct. 1620, and now established in Harrington, that technical hearsay will not necessarily present a Confrontation Clause issue.”

The panel decision made short shrift of that holding. Inexplicably it said only (439 F.2d at 924) :

“We cannot hold that either of the constitutional errors was harmless within the criteria of Chapman v. California, 1967, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705, and Harrington v. California, 1969, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284. In fact the appellee makes no such contention in this Court.”

It is the District Court’s opinion which is being reviewed by this Court. Thus we find it difficult to understand why the panel thought no greater attention was merited by the harmless error issue, than the few lines quoted above.²¹

The evidence of Hoover’s guilt in a sordid and brutal crime is so manifest and overpowering, apart from the possible cumulative effect of the Sellars’ confession implicating him, as to defy a contrary conclusion.²² If the evidence was “tainted” by admission of the confession, though no right to cross-examine Sellars, the confessor, was permitted, then even more so was the conviction in Harrington “tainted” where two confessions implicating Harrington were admitted though no opportunity was afforded to cross-examine either declar-ant. But the Supreme Court upheld the conviction, Mr. Justice Douglas writing for the majority that “apart from them [the confessions] the case against Harrington was so overwhelming that we conclude that this violation o,f Bruton was harmless beyond a reasonable doubt . . . . ” 395 U.S. at 254, 89 S.Ct. at 1728.²³

This Circuit has applied the “harmless error” principle where evidence of the defendant’s guilt was exceptionally strong and it appeared that the error was harmless beyond a reasonable doubt on occasions too numerous to mention. A few recent examples particularly related to matters of evidence include Martin v. United States, 5 Cir., 1972, 453 F.2d 1370 (errors asserted under Bruton, supra, “if errors at all, are harmless beyond a reasonable doubt.” Id. at 1370); United States v. Herrera, 5 Cir., 1972, 455 F.2d 157 (“In any event, assuming that this testimony is hearsay, the introduction of it was harmless. We are convinced that the judgment of the jury was not influenced by it because the Government’s case was convincing independent of the hearsay.” Id. at 158); United States v. Williamson, 5 Cir., 1971, 450 F.2d 585 (“The question is not merely whether a mistake was made in applying the technical and sometimes arcane rules of evidence but whether that mistake resulted in prejudicial error clearly affecting the substantial rights of the accused.” Id. at 591); United States v. Roland, 5 Cir., 1971, 449 F.2d 1281 (“Considering the evidence as a whole, we are ‘sure that the error did not influence the jury.’ Kotteakos v. United States, 1946, 328 U.S. 750, 764, 66 S.Ct. 1239, 1248, 90 L.Ed. 1557.” Id. at 1282); United States v. Frost, 5 Cir., 1970, 434 F.2d 607 (“The hearsay evidence admitted at appellants trial did not create substantial prejudice because the government’s case was equally strong without the hearsay . . . .” Id. at 608); Posey v. United States, 5 Cir., 1969, 416 F.2d 545 (evidence contained in a confession admitted in violation of Bruton “was merely cumulative and, apart from it, the case against the co-defendants was so overwhelming that we conclude that any possible violation of Bruton was harmless beyond a reasonable doubt.” Id. at 551.) The rule is the same in other Circuits. See, e. g., United States ex rel. Long v. Pate, 7 Cir., 1969, 418 F.2d 1028, 1030-1031, cert. denied, 398 U.S. 952, 90 S.Ct. 1877, 26 L.Ed.2d 294 (1970); United States v. Young, 8 Cir., 1970, 422 F.2d 302, 308. See also J. Cameron and J. Osborn, When Harmless Error Isn’t Harmless, 1971 Law and the Social Order 23, 32 (1971). The panel’s cryptic rejection of the “harmless error” rule to the circumstances here was patently erroneous and cannot be allowed to stand.

III.

The dissent filed herein is merely a lengthy restatement of the views of the panel in the original decision in this case. We are impelled, however, to make further elaboration of the majority opinion because of what we consider to be erroneous statements of law and fact in the dissent.

The dissent questions our holding that the principles of Aguilar v. State of Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), do not apply retroactively to the search and seizure in question which occurred at Hoover’s home. It is contended that Aguilar announced no “new” doctrine and accordingly that Hoover need not rely on Aguilar retroactively; also that the Supreme Court in Riggan v. Virginia, 384 U.S. 152, 86 S.Ct. 1378, 16 L.Ed.2d 431 (1966), has determined the Aguilar retroactivity issue adversely to our position. In our view, the dissent’s reasoning is erroneous. Though the holding in Aguilar is supported by prior decisions in Nathanson²⁴ and Giordenello²⁵ which were federal cases, the Aguilar pronouncement was made for the first time in a state case.²⁶ The crux o.f the dissent’s contention is that for a decision to be “new” it cannot have a foundation in precedent, a proposition which falls of its own weight. As we have pointed out, the recent case of Williams v. United States, 401 U.S. 646, 91 S.Ct. 1148, 28 L.Ed.2d 388 (1971), is directly applicable and in that case the Supreme Court held that where a decision narrowed the scope of permissible searches it was not to be retroactively applied to searches which occurred prior to the date of the decision. In Riggan, the issue of Aguilar’s retroactivity was not presented to the Court (see 34 L.W. 3273) and was not decided by the Court. See 384 U.S. at 152, 153, 86 S.Ct. at 1378, 1379. Williams was decided much later than Riggan.

As to the alternative question of Hoover having voluntarily consented to the search and, in fact, having invited it, the dissent insists that Bumper v. State of North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968), to which we have already referred, is expressed in absolute terms and consent to search is legally impossible where an invalid search warrant is presented. Curiously, in making this assertion the dissent appears to abandon that part of the original panel decision which asserted that “while it is possible to give valid consent to search even after the existence of the warrant is made known, the State must show by clear and convincing evidence that the consent is not based upon the warrant and was not coerced by any other factors” and further stated, “It is conceivable that a person could give a voluntary and uncoerced consent to search even though he had been informed that the officers had a search warrant. But the State would bear the burden of showing that the consent was given sufficiently independent of the warrant to remove the taint of its coercive nature.” 439 F.2d at 920. In our opinion the panel’s holding in this regard, rather than the present dissent, correctly states the law. Resolution of the question of consent and invitation to search under such circumstances is dependent upon the facts of each case. Bumper was decided on its facts which are substantially dissimilar to those facts of this case, as we have already pointed out. Yet the dissent argues that “Nowhere does Bumper draw a distinction, as the majority in this case seemingly does, between an invitation and acquiescence.” The answer to this argument is plain — Bumper did not involve an invitation, such as occurred here.

The dissent insists that under no circumstances should Sellars’ confession have been admitted in evidence since “Sellars was available to testify” and the State is charged with failure to call Sellars to the stand and there elicit his confession.²⁷ It is completely unrealistic to say that Sellars was available to testify in the present case and that the State District Attorney should have called him to the stand to prove his confession. The State was soon to try him for a capital offense in which the death penalty was sought and later obtained. It would have been grossly improper for the District Attorney to have called Sel-lars to the witness stand under these circumstances and would have been vain and fruitless, possibly demanding disciplinary action against the prosecutor. Whatever opportunity the State might have to obtain a conviction against Sel-lars would have been seriously imperiled by the prejudice to Sellars and the attempted violation of his Fifth Amendment privilege. It cannot be fairly said under the circumstances that Sellars was available and should have been called by the State as a witness.

As we have already pointed out in this opinion the State District Judge held a full hearing during the trial, out of the presence of the jury, as to the voluntariness of Sellars’ oral confession and found that the facts were undisputed that it was freely given. (See footnote 14, supra.) No issue on this finding has been made so far as we can find. Voluntariness, as we have previously noted, is the foremost indicia of reliability. References to the accomplice in the confession were permitted where so intertwined with the confession itself as to render it incomplete or unintelligible. The late decisions of the Supreme Court, California v. Green, supra, and Dutton v. Evans, supra, are sufficient answer to the contentions of the dissenting opinion in this regard.

The dissent’s assertion that the majority opinion does not consider the issue of harmless error with respect to the question whether the principals (Young, Sellars and Spivey) named in the indictment committed the Sehepps’ robbery is incredible under the circumstances. Young’s written confession is in evidence, Sellars’ oral confession (through Officer Stone) is in evidence, and Spivey’s testimony at the trial admitting that he committed the robbery, are all in evidence. Spivey also implicated Young and Sellars as his co-participants in the robbery and Hoover as his accomplice. There was abundant additional evidence from police officers, the victims, and physical evidence such as tape, guns, knife, clothing (with bloodstains) directly connecting the principals with the robbery. The evidence in this respect is so voluminous that a full recital thereof would unduly lengthen this opinion. For example, Sel-lars took police officers to the yard at his residence where items of jewelry stolen from the Schepps’ residence were buried. The items were dug up and recovered by the police and introduced into evidence through the supporting testimony of the officers. Hair identified as Sellars’ was found at the scene of the robbery in the Schepps’ residence. Clothing of Sellars, identified as such, and tape were found in a garbage can near Sel-lars’ residence.²⁸ Obviously there is no merit to this portion of the dissent.

As we read the dissenting opinion on the issue of harmless error, much of it is taken up with an attack on the credibility of the principal State witness Spivey whose “veracity is inherently suspect” and the corroborating witness Lyon who “was nineteen years of age and had been convicted of breaking and entering” and whose testimony is said to be “incredible” in that he was willing to leave the State with his mother and three brothers to avoid testifying “for the paltry sum of $150.” The State Trial Judge made it quite clear that the jury would have to pass on the credibility of witnesses. As to Spivey, the Trial Judge said to the jury “you are instructed that you cannot find the defendant (Hoover) guilty upon his (Spivey’s) testimony unless you first believe that the testimony of the said Samuel Spivey is true and that it shows the defendant is guilty as charged in the indictment;....” It was for the jury to resolve the credibility of witnesses. See LaBlanc v. Patterson, D.C.Colo., 1968, 294 F.Supp. 607, 609 (“nor may the credibility of the victim as a witness be attacked in Federal Habeas Corpus proceedings”). See also Pleas v. Wainwright, 5 Cir., 1971, 441 F.2d 56, 57; Fulford v. Dutton, 5 Cir. 1967, 380 F.2d 16, 17. There can be no question in this case that the jury believed the State’s witnesses, including Spivey, or it would not have found Hoover guilty. We are mindful of what the Supreme Court said in the recent case of Schneble v. Florida, 405 U.S. 427, 432, 92 S.Ct. 1056, 1059, 31 L.Ed.2d 340 (1972), “Judicious application of the harmless error rule does not require that we indulge assumptions of irrational jury behavior when a perfectly rational explanation for the jury’s verdict, completely consistent with the judge’s instructions, stares us in the face.”

Spivey's testimony was amply corroborated by direct evidence as we have indicated and as we have shown by reference to the opinion of the Texas Court of Criminal Appeals when it decided Hoover’s appeal. There were other corroborating witnesses besides Lyon. Lyon’s mother testified that she was present at the time Hoover made his arrangements and caused the Lyon family to leave the State rather than remain and give evidence against the defendant. There was additional corroboration from the victims, Schepps, Mrs. Schepps and Mrs. Tuck, directly corroborating parts of Spivey’s testimony.

In addition to all of this, we have not heretofore commented on testimony of State’s witness Elmer Jack Boney. When Boney testified in this case he was under a 20-year sentence in the Texas State Prison for robbery. At the trial he said that he met Hoover at his office where Hoover told him that “he had this score lined up that I would be interested in.” Boney said that Hoover gave him the name and address of Mair Schepps at 9704 Memorial and told him to look the place over, that it was a “sizeable score”, that there were several hundred thousand dollars and some furs and jewelry in the house. Hoover told him to look in the deep freeze and the bedrooms and that he would probably have to use force on Mr. Schepps. Boney testified that while he did pass the house and observe it, he did not participate in the robbery because he was arrested by the police in connection with another robbery for which he is now incarcerated. Hoover also told Boney that if force did not work on Mr. Schepps, to start on Mrs. Schepps with a possibility that Mr. Schepps would give in on the information.

This additional corroboration conclusively establishes beyond reasonable doubt the tremendous volume of incriminating evidence which the record discloses against petitioner Hoover.

In deciding this case we are aware of the principle announced by Chief Justice Burger in the current decision of the Supreme Court in Milton v. Wainwright, decided June 22, 1972, and appealed from this Circuit, 407 U.S. 371, 377, 92 S.Ct. 2174, 2178, 33 L.Ed.2d 1, that “The writ of habeas corpus has limited scope; the federal courts do not sit to re-try state cases de novo but rather to review for violation of federal constitutional standards. In that process we do not close our eyes to the reality of overwhelming evidence of guilt fairly established in the state court . . . .” Mr. Justice Cardozo’s remarks in Snyder v. Massachusetts, 291 U.S. 97, 54 S.Ct. 330, 78 L.Ed. 674, cited with approval in Dutton v. Evans, supra (400 U.S. at 89-90, 91 S.Ct. at 220), are appropriate here:

“ ‘There is danger that the criminal law will be brought into contempt— that discredit will even touch the great immunities assured by the Fourteenth Amendment — if gossamer possibilities of prejudice to a defendant are to nullify a sentence pronounced by a court of competent jurisdiction in obedience to local law, and set the guilty free.’ 291 U.S., at 122, 54 S.Ct., at 338.”

The panel decision is reversed; the judgment of the District Court is affirmed.

1 . Hoover’s conviction was affirmed on appeal to the Texas Court of Criminal Appeals. See Hoover v. State, Tex.Cr.App. 1965, 390 S.W.2d 758, rehearing denied. He thereafter filed a petition for writ of habeas corpus in United States District Court which was dismissed for failure to exhaust State remedies. Cf. State of Texas v. Payton, 5 Cir., 1968, 390 F.2d 261; Sellars v. Beto, 5 Cir., 1970, 430 F.2d 1150, 1151. Hoover proceeded to exhaust State remedies by filing a State habeas petition pursuant to Article 11.07, Vernon’s Ann.Tex.Code of Crim.Pro., which petition was denied by the State-convicting court and the Texas Court of Criminal Appeals on appeal. Hoover then filed this petition for a writ of habeas corpus in United States District Court.

2 . la separate trials Young and Sellars were found guilty by a jury as principals and sentenced to death. Their convictions were affirmed on appeal. See Young v. State, Tex.Cr.App.1965, 398 S.W.2d 572; Sellars v. State, Tex.Cr.App.1965, 400 S.W.2d 559. Sellars was denied habeas corpus relief in Texas State Courts, in Federal District Court, and by us. See Sellars v. Beto, 5 Cir., 1970, 430 F.2d 1150. Samuel Spivey, indicted as a principal, was granted immunity from prosecution for his testimony against Hoover.

3 . The Federal District Court noted that “The factual basis for [Hoover’s] contentions is to be determined from the record as both parties elected not to present further evidence at the hearing granted by the Court.” 306 F.Supp. at 982-983.

4 . The pertinent part of the State Trial Court’s ruling is as follows:

“Counsel, this witness has testified that this was the home of Sam Hoover. That upon knocking on the door, the testimony is Sam Hoover came to the door. The officers informed him they had a search warrant and Sam Hoover said it’s not necessary to have a search warrant, come on in and search the residence. I overrule your objection.

“The Court’s reasoning on this matter is I think there is a complete distinction between a submission or an acquiescence or an invitation. On the other hand, an invitation. You have recited to this Court about so many officers being there and what they had in mind. What this Court thinks the proper thing is what did Sam Hoover have in mind. The evidence reflects he is an attorney who tries many criminal cases. Here is a defendant who comes and says a search warrant is unnecessary, come in.”

5 . In Bumper v. State of North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968), a .22 caliber rifle was introduced at the defendant’s trial which was allegedly used in the commission of the crime (rape). The evidence was seized from the residence of defendant’s grandmother,

“ . . .a 66-year-old Negro widow, in a house located in a rural area at the end of an isolated mile-long dirt road. Two days after the alleged offense but prior to the petitioner’s arrest, four white law enforcement officers — the county sheriff, two of his deputies, and a state investigator — went to this house and found Mrs. Leath there with some young children. She met the officers at the front door. One of them announced, T have a search warrant to search your house.’ Mrs. Leath responded, ‘Go ahead,’ and opened the door.” 391 U.S. at 546, 88 S.Ct. at 1790.

Mrs. Leath testified at a hearing on defendant’s motion to suppress:

“Pour of them came. I was busy about my work, and they walked into the house and one of them walked up and said, ‘I have a search warrant to search your house,’ and I walked out and told them to come on in. * * * He just come on in and said he had a warrant to search the house, and he didn’t read it to me or nothing. So, I just told him to come on in and go ahead and search, and I went on about my work. I wasn’t concerned what he was about. I was just satisfied.” 391 U.S. at 546-547, 88 S.Ct. at 1790.

6 . The first count of the indictment charged Hoover as a principal. This count was not submitted to the jury. The second count charged Hoover as an accomplice. The definitions of the crime of robbery and of accomplice under Texas law are set out in the panel’s opinion. 439 F.2d at 915 n. 1. Only the second count was submitted to the jury. In relevant part it reads:

“. . . that [Young, Spivey and Sel-lars], on or about the lltli day of March, A.D. 1964, in said County and State, did in and upon Mair Schepps make an assault, and did then and there by said assault and by violence and by putting [him] in fear of life and bodily injury, and by then and there using and exhibiting a firearm, to-wit, a pistol, fraudulently and against the will of the said Mair Schepps take from the person and possession of the said Mair. Schepps [certain property — description herein omitted] the same being then and there the corporeal personal property of [Schepps] with the intent then and there to deprive [him] of the value of the same and to appropriate it to the use of them [Young, Spivey and Sel-lars], and that SAM HOOVER, on or about the 11th day of March, A.D. 1964, . . . prior to the commission of the aforesaid offense did unlawfully and wilfully advise, command, and encourage the said [Young, Spivey and Sellars] to commit said offense, the said SAM HOOVER not being j)resent at the time of the commission of the aforesaid offense by [Young, Spivey and Sellars].”

7 . “An accomplice under our Code is the same as an accessory before the fact by the common law with very much the same criminal procedure. In order to convict the accomplice, the State must prove the guilt of the principals and that the accomplice advised, commanded, or encouraged the principals to commit the offense. There are two separate and distinct propositions demanding full proof of the State. The principals not having been tried and convicted, so that the record of their conviction could be introduced to establish their guilt, the State was required to establish their guilt in the same manner and to the same certainty as if they themselves had been upon trial; for their guilt must be shown before the accomplice can be legally convicted.”

Arnold v. State, 9 Tex.App. 435, 438 1880). See also Tucker v. State, Tex.,Cr.App.1971, 461 S.W.2d 630.

8 . See Simms v. State, 1881, 10 Tex.App.131; Blumann v. State, 1893, 33 Tex.Cr.R. 43, 21 S.W. 1027, Bluman v. State, 1893, 33 Tex.Cr.R. 43, 26 S.W.2d 75 (on rehearing); 26 S.W. 75; Millner v. State, 1914, 75 Tex.Cr.R. 22, 169 S.W. 899; Sapp v. State, 1919, 87 Tex. Cr. R. 606, 223 S.W. 459; Smith v. State, 91 Tex.Cr.R. 15, 237 S.W. 265 (1922); Longoria v. State, 1954, 159 Tex.Cr.R. 529, 265 S.W.2d 826; Crook v. State, 1889, 27 Tex.App. 198, 11 S.W. 444; Hamlin v. State, 1898, 39 Tex.Cr.R. 579, 47 S.W. 656; Espalin v. State, 1921, 90 Tex.Cr.R. 625, 237 S.W. 274; Browney v. State, 1934, 128 Tex.Cr.R. , 79 S.W.2d 311; Wilkins v. State, 1937, 134 Tex.Cr.R. 452, 115 S.W.2d 907; Ex parte Suger, 1946, 149 Tex.Cr.R. 133, 192 S.W.2d 159 (bail case); Louvier v. State, 1957, 165 Tex.Cr.R. 167, 305 S.W.2d 574. Cf. Pine v. State, 1938, 134 Tex.Cr.R. 396, 115 S.W.2d 918.

9 . See, e. g., Wells v. State, 194 Ga. 70, 20 S.E.2d 580 (1942), Wigmore noted tlmt tlie following American jurisdictions liave at one time or another followed tlie rule: Georgia, Colorado, Connecticut, Kansas, Nebraska, Tennessee and Washington. See Wigmore, Evidence § 1079 n. 5. England also apparently follows the rule. Rex v. Cox, 1 F. & F. 90 (1858). Cf. Rex v. Turner, 1 Moody, Crown Cas. 347.

10 . Wigmore states :

“(c) That tlie confession of a principal is admissible, on tlie trial of tlie accessory, to evidence the commission of tlie crime by the principal, seems clear on the present principle, supposing some evidence of tlie defendant’s cooperation to be first furnished. But whether the judgment of conviction of the principal is receivable for the same, purpose depends on tlie doctrine of the effect of judgments.” [Citations omitted.]

IV Wigmore, Evidence § 1079(c), p. 133 (3d ed. 1940). McCormick and Ray state tlie rule ns follows :

“Where defendant is indicted as an accomplice, on liis ti'ial tlie confession of the principal offender is admissible since, it is necessary to prove tlie guilt of the principal as part of the case against tlie accomplice. But the use of the confession is limited to tlie guilt of tlie principal and tlie jury must be instructed that it is not evidence against tlie defendant for any other purpose.” [Citations omitted.]

2 C. McCormick and R. Ray, Texas Law of Evidence § 1219 (Confession of Person Other Than Defendant), p. 97 (2d ed. 1956). See also 24 Tex.Jur.2d, Evidence § 069, p. 273 (“Where tlie jirineipal is named as suoli in the indictment, his prior confession is admissible at tlie trial of an accomplice to prove his own guilt, though it is not admissible, to prove the guilt of tlie accomplice.”) ; and 2 Brandi’s An-not. Texas Penal Code § 754, p. 52, (2d ed.)

A similar Texas rule allows tlie confession of an alleged thief to be introduced at tlie trial of a person charged with receiving the stolen property for tlie purpose of proving tlie theft of tlie property and for that reason alone. See Donegan v. State, 1921, 89 Tex.Cr.R. 105, 229 S.W. 857; Hoyt v. State, 1921, 88 Tex.Cr.R. 612, 228 S.W. 936; Ashley v. State, 1961, 171 Tex.Cr.R. 165, 346 S.W.2d 613; Lanier v. State, 1962, 172 Tex.Cr.R. 238, 356 S.W.2d 671.

In Schepps v. State, Tex.Cr.App.1988, 432 S.W.2d 920, the Texas Court of Criminal Appeals again had occasion to consider this rule. In its opinion on State’s motion for rehearing (432 S.W.2d at 938 et seq.), the five-man court divided three ways, the conviction of Schepps was reversed and tlie ease remanded for a new trial. Two judges concurred in the main opinion to tlie effect that introduction of extrajudicial confessions of three of tlie alleged principals violated Schepps’ constitutional right of confrontation; tlie third judge concurred because of failure to delete hearsay statements in the principals’ written confessions implicating Schepps; and two judges dissented and adhered to the well-established Texas rule. Thus “tlie judges were not able to reach n consensus as to why, or under what circumstances, such confessions are not admissible.” See Steele, Criminal Law and Procedure, 24 Southwestern Law Journal 229, 239. The viability of the Texas rule of law that where an accomplice is being tried separately from his principal, any evidence which would be admissible to show the guilt of tlie principal if he were on trial, is admissible on tlie trial of tlie accomplice for tlie purpose of showing tlie guilt of tlie principal, was reaffirmed in tlie subsequent case of Chapman v. State, Tex.Cr.App.1971, 470 S.W.2d 656, the latest Texas case we liave been able to find, by Judge Onion, author of the main opinion in Schepps. Incidentally, tlie Schepps decision was rendered prior to the decisions of the Supreme Court in California v. Green, 399 , 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970); Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970); and Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969).

11 . See Sapp v. State, 1919, 87 Tex.Cr.R. 606, 223 S.W. 459; 2 C. McCormick and R. Ray, Texas Law of Evidence § 1219, p. 97 n. 27 (2d ed. 1956) ; 24 Tex.Jur. 2d, Evidence § 669, p. 273. The rule has no application where the confessor is an accomplice and not a principal. Ex Parte Herring, 1932, 122 Tex.Cr.R. 57, 53 S.W.2d 607; Louvier v. State, 1957, 165 Tex.Cr.R. 167, 305 S.W.2d 574, 577.

12 . The “interwoven” test is the counterpart to the “fragmentary and incomplete” test developed in Browney v. State, 1934, 128 Tex.Cr.R. 81, 79 S.W.2d 311. See Smith v. State, 1922, 91 Tex.Cr.R. 15, 237 S.W. 265, “The fact that interwoven in the confession were expressions connecting appellant with the acts of the principal would not render the statement nonavailable to the state.” Id. 237 S.W. at 267. See also Walker v. State, 1920, 88 Tex.Cr.R. 389, 227 S.W. 308, 311-312.

13 . According to Young’s written confession, he said that on March 5, 1964, lie was informed that a bookie named Sehepps had $300,000 stashed in his home. On March 11, 1964, he, Spivey and Sellars drove out ■to the house, broke in, and commenced searching for the money. They found some money, but not the large sum. Young confessed that he “twisted the woman’s arm a little” and that Sellars shocked her with an electric cord. Just before they left, Young shot Mrs. Sehepps in the leg. Young stated that during the robbery when they could not find the money, he made a call to find out what to do. He was told to look in the deep freeze. He was also told that if he did not find the money there, he should leave. After the robbery, Young went home and went to •sleep. He got about $1,100 for his part in the robbery.

14 . The State Court also made written findings on the issue of voluntariness, which were made part of the record, as follows:

. . during the trial of the above numbered and entitled cause, the State of Texas, after having laid a proper foundation, tendered into evidence an oral statement of the co-defendant Calvin Sellars, made on or about the 20th day of March, 1964.

“Thereupon the defendant Sam Hoover, who was represented by Mr. Warren Burnett and Mr. Luther Jones, both competent and experienced attorneys, had an unrestricted opportunity in a separate hearing outside the presence of the jury to raise any issues there may have been regarding whether or not the statement was voluntary and to develop factual issues surrounding the making of the statement.

“At the conclusion of all of the evidence tendered to the Court, in the absence of the jury, touching the voluntariness of the oral statement made by Calvin Sell-ars, the Court considered all of the evidence in the record surrounding and concerning the making of the oral statement, including the demeanor and manner of the witnesses who testified, and found there were no disputed facts concerning the voluntariness of the oral statement; that the oral statement was freely and voluntarily made without coercion, promises, threats or mistreatment. The Court further found that the constitutional rights of Calvin Sellars were in no way violated.”

15 . Mr. Justice Brennan, writing for tlie majority in Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1020, 20 L.Ed.2d 476 (1968), noted that “If it were true that tlie jury disregarded the reference to the co-defendant, no question would arise under the Confrontation Clause, because by hypothesis the case is treated as if the confessor made no statement inculpating the nonconfessor.” 391 U.S. at 126, 88 S.Ct. at 1622. If a principal’s confession makes no reference to an accomplice, no constitutional question arises. Later in the opinion, Mr. Justice Brennan wrote that “Evans’ oral confessions were in fact testified to, and were therefore actually in evidence. That testimony was legitimate evidence against Evans and to that extent was properly before the jury during its deliberations.” Id. at 127, 88 S.Ct. at 1623. Similarly, in White v. United States, 5 Cir., 1969, 415 F.2d 292, cert. denied, 397 U.S. 993, 90 S.Ct. 1128, 25 L.Ed.2d 400 (1970), an oral confession of codefendant Metz was introduced at the joint trial of Metz and White. We found that “Since Metz’s confession did not implicate or inculpate White, it follows that White was not denied his right of confrontation.” 415 F.2d at 294. See also Brooks v. United States, 5 Cir., 1969, 416 F.2d 1044, 1051; Wapnick v. United States, 2 Cir., 1969, 406 F.2d 741, 742; United States v. Lipowitz, 3 Cir., 1969, 407 F.2d 597, 601-603; United States v. Levinson, 6 Cir., 1968, 405 F.2d 971, 987-988; Slawek v. United States, 8 Cir., 1969, 413 F.2d 957, 960-964 (per the Judge, now Justice Blackmun); United States v. Santos, 9 Cir., 1970, 430 F.2d 1295.

16 . See Pointer v. State of Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965); Douglas v. Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965); Brookhart v. Janis, 384 U.S. 1, 86 S.Ct. 1245, 16 L.Ed.2d 314 (1966); Parker v. Gladden, 385 U.S. 363, 87 S.Ct. 468, 17 L.Ed.2d 420 (1966); Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968); Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968); Berger v. California, 393 U.S. 314, 89 S.Ct. 540, 21 L.Ed.2d 508 (1969); Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969); California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970); Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970).

The attack is not restricted to hearsay evidence alone. For example, we recently rejected a claim under the “Best Evidence Rule” “that the admission of the testimony [that a shirt had the initials D-U-F inscribed on the collar] without the production of the shirt denied the appellant his right to cross-examination.” United States v. Duffy, 5 Cir., 1972, 454 F.2d 809, 813. See also United States v. Williams, 5 Cir., 1972, 456 F.2d 217.

17 . See generally Comment, The Confrontation Test for Hearsay Exceptions: An Uncertain Standard, 59 Calif.L.Rev. 580 (1970) ; F. Read, The New Confrontation-Hearsay Dilemma, 45 S.Calif.L.Rev. 1 (1972) ; E. Griswold, The Due Process Revolution and Confrontation, 119 U.Pa. L.Rev. 711 (1971) ; Comment, Confrontation and the Hearsay Rule, 75 Yale L.J. 1434 (1966) ; The Supreme Court Review (1970) at 39; D. Seidelson, Hearsay Exceptions and the Sixth Amendment, 40 Geo.Wash.L.Rev. 76 (1971) ; Supreme Court Review: Confrontation, 62 J. of Crim.L., Criminology & Police Science 516 (1971) ; E. Colvin, Jr„ Criminal Law & Procedure, 23 S.W. L. J. 223, 232 (1969) ; Comment, Hearsay, The Confrontation Guarantee and Related Problems, 30 La.L.Rev. 651 (1970) ; Comment, Hearsay Rule and the Right to Confrontation: State’s Leeway in Formulating Evidentiary Rules, 40 Fordham L.Rev. 595 (1972) ; D. Davenport, The Confrontation Clause and the Co-Conspirator Exception in Criminal Prosecutions: A Functional Analysis, 85 Harv.L.Rev. 1378 (1972) ; The Supreme Court 1970 Term, S5 Harv.L.Rev. 3, 189 (1971) ; Comment, Co-Parties: Use of Admissions and Declarations Against Interest, 3 John Marshall J. 364 (1970) ; M. Larkin, Right of Confrontation: What Next?, 1 Tex.Tech.L.Rev. 67 (1969) ; G. Marer, Right of Confrontation and Prior Consistent Statements in Criminal Cases: The California View, 45 Calif.S.B.J. 312 (1970) ; Comment, Hearsay and the Right of Confrontation in Administrative Hearings, 48 X.C.L.Rev. 608 (1970) ; E. Semerjian, Right of Confrontation, 55 A.B.A.J. 152 (1969) ; Comment, Confrontation: Prior Testimony, Confessions, and the Sixth Amendment, 36 Tenn.L.Rev. 382 (1969) ; D. Snow, Co-Conspirators Exception to the Hearsay Rule: Procedural Implementation and Confrontation Clause Requirements, 63 J.Crim.L. 1 (1972).

Casenotes on Dutton v. Evans, supra, are found at 85 Harv.L.Rev. 188 (1971); 22 Case W.Res.L.Rev. 575 (1971); 40 U.Cin.L.Rev. 402 (1971); 22 Mercer L.Rev. 791 (1971); 49 N.C.L.Rev. 788 (1971); 9 A.B.A.J. 169 (1971); 19 Kan.L.Rev. 533 (1971); 20 Buffalo L.Rev. 207 (1970). Casenotes on California v. Green, supra, are found at 50 A.B.A.J. 1096 (1970); 35 Albany L.Rev. 397 (1971); 37 Brooklyn L.Rev. 207 (1970); 39 Geo.Wash.L.Rev. 415 (1970); 84 Harv.L.Rev. 108 (1970); 2 Loyola U.L.J. 238 (1971); 32 Ohio S.L.J. 188 (1971); 5 Suffolk U.L.Rev. 337 (1970); 2 Tex.Tech.L.Rev. 299 (1971); 1970 Utah L.Rev. 688 (1970); and 23 Vand.L.Rev. 1365 (1970). Bruton v. United States, supra, has been noted at 35 Brooklyn L.Rev. 139 (1968); 35 Mo.L.Rev. 125 (1970); 8 Washburn L.J. 381 (1969); 1970 Duke L.J. 329 (1970); 44 St. John’s L.Rev. 54 (1969); and 14 Vill.L.Rev. 132 (1968).

18 . Solicitor General Ernest Griswold, reflecting on Dutton, writes:

“Our experience with the sixth amendment has taught us that it does not mean what it says. Despite the constitutional Provision, it is not the applicable law that the accused is entitled in all circumstances to confront the witnesses against him. Like all good constitutional provisions, the crisp language of the confrontation clause turns out to be somewhat cryptic. It requires thoughtful consideration and application in the light of its historical origins and the general approach of time common law to evidence problems."

E. Griswold, The Due Process Revolution anti Confrontation, 119 IJ.Pa.L.Rev. 711, 728 (1971).

19 . The Chief .Justice also said:

"The California statute meets the tests of the Sixth and Fourteenth Amendments, and accordingly, the wisdom of the statute is properly left to the State of California; other jurisdictions will undoubtedly watch the experiment with interest. The circumstances of this case demonstrate again that neither the Constitution as originally drafted, nor any amendment, nor mdccci any deed, dictates that we must have absolute uniformity in the criminal law in all the States. Federal authority was never intended to be a `ramrod' to compel conformity to nonconstitutional standards."

399 U.S. at 171-172, 90 S.Ct. at 1942.

20 . Sellars' confession was found to be voluntary at time Jackson v. Denno-type hearing at Hoover's trial. The confession was also found to be voluntary at Sellnrs' trial, which determination was affirmed on appeal. Sellars v. State, Tex.Cr.App.1965, 400 S.W.2d 599, 562-563. The confession was found to be voluntary for the third time in Sellars’ federal habeas corpus proceedings in United States District Court, which determination was affirmed on appeal to us. Sellars v. Beto, 5 Cir., 1970, 430 F.2d at 1150, 1153.

21 . The State’s reliance on the argument that there was no constitutional error in the trial rather than reliance on the “harmless error” doctrine cannot preclude this Court from making a “harmless error” holding, especially when the District Court below expressly relied also on that principle.

22 . The violent and horrible details bear repetition. We quote from the opinion of the Texas Court of Criminal Appeals on Hoover’s appeal to that court as follows (390 S.W.2d at 759-760):

“The evidence reveals that after Spiv-ey, Young, and Sellars had been advised by the appellant that Schepps had $300,000 in money in his home, the appellant encouraged them among other things, to ‘get you a car and equipment (guns) and get ready to go in,’ and he also told them where to look for the money in the house. These three men, wearing masks, two of whom were armed with pistols and one with a sawed-off shotgun, w-ent to the Schepps’s home about 7 P.M., March 11, 1964. While they were preparing to enter the house, Mrs. Tuck, a nurse employed by Schepps, left the house to go to a nearby garage apartment and she was knocked unconscious by one of the masked men. Two of the robbers entered the main house and violently assaulted Mr. and Mrs. Schepps and the third robber brought Mrs. Tuck into the house shortly thereafter.

“After numerous unsuccessful inquiries about the $300,000 the robbers’ acts of violence and torture increased, to compel the Schepps to reveal the location of the money. Mrs. Schepps’s jaw was broken, and some of her teeth were knocked out and others loosened; she was burned across the abdomen with a heated butcher knife; she was repeatedly burned on her face and body with cigarettes, and also repeatedly shocked with an electric wire placed to her teeth, breasts and private parts; a fireplace poker and a pistol were inserted into her vagina; and she was shot in the thigh with a .44 magnum pistol as she lay prostrate on the floor. Mr. Schepps was severely and brutally beaten and lay unconscious for short periods of time during the three-hour attack. The injuries of Mrs. Tuck were not so serious, but she required several days of hospitalization. The Schepps’s ten-month old baby was threatened, and a shot was fired into the baby bed where the child lay. Most of the furniture and furnishings in the house, especially those on the second floor, were torn, broken, demolished, and scattered in an intense and violent search for the $300,000 reportedly hidden therein.”

23 . Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969), is similar to this case in certain material regards:

“. . . Pour men were tried together — Harrington, a Caucasian, and Bos-by, Rhone, and Cooper, Negroes — over an objection by Harrington that his trial should be severed. Each of his three codefendants confessed and their confessions were introduced at the trial with limiting instructions that the jury was to consider each confession only against the confessor. Rhone took the stand and Harrington’s counsel cross-examined him. The other two did not take the stand.” Id. at 252, 89 S.Ct. at 1727.

. . Rhone’s confession, however, placed Harrington inside the store with a gun at the time of the attempted robbery and murder.

“Cooper’s confession did not refer to Harrington by name. He referred to the fourth man as ‘the white boy’ or ‘this white guy.’ And he described him by age, height, and weight.

“Bosby’s confession likewise did not mention Harrington by name but referred to him as a blond-headed fellow or ‘the white guy’ or ‘the Patty.’ ” Id. at 253, 89 S.Ct. at 1728.

The Court assumed that the references to “the white guy” clearly referred to petitioner. Nevertheless, the Court found the error to bo harmless :

“Rhone, whom Harrington’s counsel cross-examined, placed him in the store with a gun at the time of the murder. Harrington himself agreed he was there. Others testified he had a gun and was an active participant. Cooper and Bosby did not put á gun in his hands when he denied it. They did place him at the scene of the crime. But others, including Harrington himself, did the same. Their evidence, supplied through their confessions, was of course cumulative. But apart from them the case against Harrington was so overwhelming that we conclude that this violation of Bruton was harmless beyond a reasonable doubt . . . .” Id. at 253-254, 89 S.Ct. at 1728.

24 . Nathanson v. United States, 290 U.S. 41, 54 S.Ct. 11, 78 L.Ed. 159 (1933), held that mere affirmance of belief or suspicion by the affiant is not enough to secure a warrant to search. However, Aguilar’s requirement that the affiant further explicate the nature of “reliable information from a credible person,” while supported by the holding in Nathanson, is clearly an extension of that holding.

25 . In Giordenello v. United States, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503 (1958), the Court voided a search incident to an arrest conducted pursuant to an invalid warrant. The arrest warrant was found invalid because the affiant had recited no facts on which his conclusions that Giordenello had committed a crime and concealed evidence were based:

“The complaint contains no affirmative allegation that the affiant spoke with personal knowledge of the matters contained therein; it does not indicate any sources for the complainant’s belief; and it does not set forth any other sufficient basis upon which a finding of probable cause could be made.”

357 U.S. at 486, 78 S.Ct. at 1250.

26 . The dissenting opinion in Aguilar, supra, 378 U.S. at 116-122, 84 S.Ct. at 1515-1518, references numerous decisions upholding affidavits similar to that held invalid in Aguilar. Indeed, not until the decision in Aguilar did the Supreme Court explicitly hold that “The principles announced in Giordenello derived, therefore, from the Fourth Amendment, and not from our supervisory power.” 378 U.S. at 112, n. 3, 84 S.Ct. at 1513, n. 3. Cf. 378 U.S. at 118, 84 S.Ct. at 1516 (dissenting opinion). See also Spinelli v. United States, 393 U.S. 410, 412, 89 S.Ct. 584, 587, 21 L.Ed.2d 637 (1969).

27 . The dissent erroneously concludes that the case of Schepps v. State, Tex.Cr.App.1968, 432 S.W.2d 926, supports the view that admission of Sellars’ confession has violated the confrontation clause, even if admitted solely to prove that Sellars committed the adjunct crime because Sellars was presumably available to testify. Moreover, the dissent erroneously states that the Texas court has concluded that “in no event can a confession be admitted in which direct references are made to the alleged accomplice.” A close examination of the four opinions filed by the five judges in the Schepps case, in light of the latest case of Chapman v. State, Tex.Cr.App.1971, 470 S.W.2d 656, indicates a contrary result. See also footnote 10, supra.

28 . Some of the corroborating physical evidence is recited in the text of the opinion in Hoover v. State, Tex.Cr.App.1965, 390 S.W.2d 758, 760, as follows:

“A pair of slacks, a black shirt, a hat, a pair of gloves, and rolls of adhesive tape were found in a garbage can near the home of Calvin Sellars. Fibers taken from the articles were shown to be identical with those removed from the carpet in the Schepps home, and an examination of traces of human blood on some of the articles revealed the blood to be the same type as Mr. Soliepps’s. Also a human hair taken from the shirt was shown to be identical to one removed from Sellars. Furthermore, the officers recognized the trousers found in the can as the same ones Sellars was wearing at the time of a previous arrest.

“Upon a search of appellant’s house following the arrest of the three robbers, the officers found therein two diamonds, one weighing 4.83 carats and the other 2.70 carats.”