(concurring) :
I concur with the opinion of Judge BARNES and write only to clarify the facts which have inclined me to respectful disagreement with Judge Ely.
The indictment alleged six bank robberies and Parker went to trial on four of the counts. The method common to all the robberies was that the robber, posing as a hitch-hiker, kidnapped the “Good Samaritan” who offered him a ride and, at gunpoint, required the hostage to drive him to and to accompany him into a bank, and, having supplied him with a pillow case, directed him to fill it with money from the tellers’ cages. The incident which prompted Parker’s arrest occurred on October 17,1966, when the hostage refused to participate in the final act of robbery of the bank but elected to attack and overpower the defendant. There is no doubt of Parker’s identity as the person committing this felonious assault, all material circumstances of which were the same as the unique and unusual methods employed in the earlier bank robberies.
While, as Judge Ely so expressively shows, the line-up procedures used for the benefit of five of the fifteen identification witnesses who testified at the trial were not perfect, the police officials did not then have the benefit of all views expressed by the Supreme Court in Wade, Gilbert and Stovall. More importantly, it must be emphasized that four of the hostages who identified defendant in Court, witnesses who had enjoyed prolonged contact with defendant, were not exposed to any suspect police line-up and six of the other fifteen witnesses who made in-court identification had not participated in a police line-up.
The Supreme Court, in its trilogy of police line-up decisions, has made it repetitiously clear that not only is the constitutional right to counsel, in identification line-ups, not to be applied retroactively but also that the harmless error rule of Chapman v. State of California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705, is to be utilized in this type of case.1
The line-up procedures employed in this case were not perfect, but they were *254fairly good and were not so devoid of merit as to make them wholly suspect. The wealth of other identification .evidence, not so tarnished, directs me unhesitatingly to the conclusion that whatever imperfections existed in the line-ups here constituted harmless error beyond a reasonable doubt.
Inasmuch as Judge Ely concedes that “there is now no factual basis for the conclusion,” the argument that Appellant was prejudiced by facing a possible death penalty has been, I believe, effectively refuted by the Supreme Court. Bumper v. State of North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797, decided June 3, 1968; Witherspoon v. State of Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776, decided June 3, 1968.
. “We therefore think the appropriate procedure to be followed is to vacate the conviction pending a hearing to determine whether the in-court identifications had an independent source, or whether, in any event, the introduction of the evidence was harmless error, Chapman v. State of California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705, and for the District Court to reinstate the conviction or order a new trial, as may be proper. See United States v. Shotwell Mfg. Co., 355 U.S. 233, 245-246, 78 S.Ct. 245, 253, 2 L.Ed. 2d 234.” United States v. Wade, 388 U.S. 218, at 242, 87 S.Ct. 1926, at 1940.
“Gilbert is therefore entitled only to a vacation of his conviction pending the holding of such proceedings as the California Supreme Court may deem appropriate to afford the State the opportunity to establish that the in-court identifications had an independent source, or that their introduction in evidence was in any event harmless error.
“Therefore, unless the California Supreme Court is ‘able to declare a belief that it was harmless beyond a reasonable doubt,’ Chapman v. State of California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705, Gilbert will be entitled on remand to a new trial or, if no prejudicial error is found on the guilt stage but only in the penalty stage, to whatever relief California law affords where the penalty stage must be set aside.” Gilbert v. State of California, 388 U.S. 263, at 272 and 274, 87 S.Ct. 1951, at 1956 and 1957.
“At the very least, the processing of current criminal calendars would be disrupted while hearings were conducted to determine taint, if any, in identification evidence, and whether in any event the admission of the evidence was harmless error. Doubtless, too, inquiry would be handicapped by the unavailability of witnesses and dim memories. We conclude, therefore, that the Wade and Gilbert rules should not be made retroactive.” Stovall v. Denno, 388 U.S. 293, at 300, 87 S.Ct. 1967, at 1971.