(concurring).
I join Judge Biggs in the affirmance of the district court’s denial of habeas corpus.
It would indeed have been preferable for the trial judge to have called the jury’s attention specifically to the separate confessions of Smith and Dyson when he instructed them to determine whether Cheeks’ confession, which adopted their statements, was voluntary. But it would be too great a strain on the concept of fundamental fairness to declare the failure to do so a violation of due process.
The trial judge did instruct the jury that if they found Cheeks’ confession to be involuntary, they should ignore it. Since the jury had already been told that the confession of Cheeks adopted the statements of Smith and Dyson, the jury knew that if they rejected Cheeks’ confession they should also disregard the statements by Smith and Dyson. Additional emphasis on this point may have been desirable, but its absence does not establish error of constitutional dimension.
*657In these circumstances, it is unnecessary, in my view, to decide whether Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), precludes a finding of constitutional error in the instructions to the jury on voluntariness of a confession once a judge has ruled that the confession is voluntary and may be considered by the jury.