dissenting, with whom WISDOM, THORNBERRY, GOLDBERG, GODBOLD and SIMPSON, Circuit Judges, join, and with whom GEWIN, Circuit Judge, joins in Part II and a portion of Part III of the opinion:
Hoover appeals from the denial of his habeas petition challenging the validity of his conviction in a Texas state court of the offense of being an accomplice to the commission of robbery. The state court sentenced him to imprisonment for a term of sixty years. Hoover’s habeas petition is based upon two separate federal constitutional grounds: (1) his right to be secure in his home from unreasonable search and seizure; and (2) his right to be confronted with the witnesses against him.
Upon original hearing of this appeal the members of the panel (Rives and Simpson, Circuit Judges, and Nichols, Judge of the Court of Claims sitting by designation) were unanimous in their decision of both issues in favor of Hoover. See Hoover v. Beto, 5 Cir. 1971, 439 F.2d 913 (hereinafter cited as “panel opinion”). Upon rehearing en banc a majority of the en banc court is now deciding both issues against *543Hoover. I adhere to our original decision and respectfully, but strongly, dissent.
To justify affirmance of the district court, the original panel must have been wrong and the majority of the en banc court must be right as to the decision of both issues.
While the facts as to Hoover’s guilt or innocence have always been and remain in dispute, at this point it is not necessary to discuss the evidence to decide this appeal.1 That much of the evidence was briefly summarized in the opinion of the Texas Court of Criminal Appeals, Hoover v. Texas, 1965, 390 S.W.2d 758, and has been retold at least thrice: (1) by the district court in denying habeas corpus, Hoover v. Beto, S.D.Tex.1969, 306 F.Supp. 980; (2) by the original panel on this appeal, 439 F.2d 913; and (3) by the majority in its opinion on en banc rehearing.2 Hence, without further ado, I proceed to a discussion of the two separate issues.
I. The Search and Seizure Issue
A. Validity of the Search Warrant
The panel held that the search of Hoover’s home was not authorized by a valid search warrant. 439 F.2d at 916-917. On en banc rehearing, the majority expresses a different view:
“[W]e 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 of Aguilar was rendered.’ 439 F.2d at 917 [quoting from Doby v. Beto, 5 Cir. 1967, 371 F.2d 111, 113]. 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 [sic] 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.”
Majority opinion at 522 (emphasis supplied).3
In the light of the Supreme Court’s holding in Williams, supra, relied on by the majority, it must now by hindsight be conceded that the panel’s reliance on Doby v. Beto, 5 Cir. 1967, 371 F.2d 111, *544113,4 was a mistake. The majority, however, ignores the fact that Doby was not the sole basis for the panel’s holding that Aguilar applies to the search of Hoover’s house. In addition to “mistakenly” relying on Doby, the panel said:
“Hoover’s counsel make a strong argument that Aguilar announced no new doctrine, but, as disclosed in the opinion, 378 U.S. at 110-113, 84 S.Ct. 1509, did no more than apply the principles decided in Nathanson v. United States, 1933, 290 U.S. 41, 54 S.Ct. 11, 78 L.Ed. 159; Giordenello v. United States, 1958, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503; and Ker v. California, 1963, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726. In Riggan v. Virginia, 1966, 384 U.S. 152, 86 S.Ct. 1378, 16 L.Ed.2d 431, the Court, upon granting certiorari, summarily reversed saying simply, ‘The judgment is reversed. Aguilar v. Texas, 378 U.S. 108 [84 S.Ct. 1509, 12 L.Ed.2d 723],’ thus applying Aguilar to a search conducted by Virginia officers on January 22, 1963 (see 206 Va. 499, 144 S.E.2d 298), long prior to the decision in Aguilar.”
439 F.2d at 917.
Of course, we are all bound now to agree that a choice of giving retrospective or prospective effect to a judicial decision arises only from a frank recognition “that judges exercise a law creating function, although, of course, subject to the limitation of unreasonable ‘judicial legislation.’ ” United States ex rel. Linkletter v. Walker, 5 Cir. 1963, 323 F.2d 11, 14. See also id. at 20 (Tuttle, J. dissenting). The Supreme Court’s opinion affirming this Circuit more clearly outlines the history and theory of the problem. Linkletter v. Walker, 1965, 381 U.S. 618, 622, et seq., 85 S.Ct. 1731, 14 L.Ed.2d 601 Mr. Justice White’s opinion in Williams v. United States, 1971, 401 U.S. 646, 659, 91 S.Ct. 1148, 1156, 28 L.Ed.2d 388, recognizes the “confusing problems of identifying those ‘new’ constitutional interpretations that so change the law that prospectivity is arguably the proper course.”
Aguilar announced no “new” doctrine. That fact is demonstrated beyond cavil both by the opinion in Aguilar itself and by the opinion of the Supreme Court in Riggan v. Virginia, 1966, 384 U.S. 152, 86 S.Ct. 1378, 16 L.Ed.2d 431.
The affidavit at issue in Aguilar is remarkably similar to the affidavit supporting the warrant to search Hoover’s home.5 Thus, the Supreme Court’s condemnation of the affidavit in Aguilar applies with equal force in this case. 378 U.S. at 110-113, 84 S.Ct. 1509. Notably the Court based its reasoning wholly upon prior case law. E. g., Giordenello v. United States, 1958, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503; Nathanson v. United States, 1933, 290 U.S. 41, 54 S.Ct. 11, 78 L.Ed. 159. There was no *545implication that a new rule was in the making or that the scope of permissible searches was being narrowed. To demonstrate the constitutional insufficiency of the affidavit in this case, Hoover need not rely on Aguilar, but could safely rely on the earlier decisions discussed in Aguilar at 378 U.S. 110-113, 84 S.Ct. 1509. Thus, it is literally true that “Hoover need not rely on Aguilar retroactively.” 439 F.2d at 917.
Next, in Riggan (cited in the panel opinion, 439 F.2d at 917) the Supreme Court applied Aguilar (decided June 15, 1964) to a search conducted on January 22, 1963. Its fully retrospective application of Aguilar could not have been based on any partial retroactivity concept, such as that discussed in Williams, but was a holding of absolute and unqualified retroactivity which could be justified only by the Supreme Court’s view that it had announced no “new” or novel doctrine. The four dissenting Justices in Riggan indicated complete agreement with the majority on that score:
“[The affidavit in Aguilar] was found inadequate under the rule applied in Giordenello v. United States, 357 U.S. 480 [, 78 S.Ct. 1245, 2 L.Ed.2d 1503] (1958), where a majority of the Court found that the complaint ‘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.’ At 486 [, 78 S.Ct. at 1250].”
384 U.S. at 153, 86 S.Ct. at 1379.
When the majority judges in the present case hold that, “Thus, because the Hoover search was made prior to the Supreme Court’s decision in Aguilar, it is not affected thereby” (majority opinion at 522), they undertake to overrule the Supreme Court’s pronouncement in Rig-gan. That cannot be. I respectfully, but earnestly, submit that there is no room for legitimate argument: The search of Hoover’s home is not justified by the existence of a valid search warrant.
B. Consent
Having concluded that the search warrant was invalid, I now turn to the majority’s view that Hoover consented to the search. I reject that theory on two grounds.6 First, one cannot consent to a search in the face of a seemingly legal search warrant.7 Second, even assuming arguendo that a consent can be given, the facts in this case do not support such a finding.
(1) Bumper v. North Carolina, 1968, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797, is squarely in point.8 And the ma*546jority’s attempt at narrowing the holding in Bumper is factitious. In that case four officers came to the house of a 66 year-old Negro woman, Mrs. Leath. After the police stated that they had a search warrant she replied, “Go ahead.” Mrs. Leath never asked for or saw the warrant. She testified at the suppression hearing that she told the police “to come on in and go ahead and search,” that she “had no objection to them making a search,” that she “was willing to let them look in any room or drawer,” and that she had allowed them to search of her “own free will.” 391 U.S. at 547 and n. 8, 88 S.Ct. at 1791.
The Court in Bumper framed the issue precisely:
“The issue thus presented is whether a search can be justified as lawful on the basis of consent when that ‘consent’ has been given only after the official conducting the search has asserted that he possesses a warrant.”
Id. at 548, 88 S.Ct. at 1791 (footnote omitted). Equally precise was the Court’s holding: “We hold that there can be no consent under such circumstances.” Id. (emphasis supplied). Similarly: “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.” Id. at 549, 88 S.Ct. at 1792 (emphasis supplied) (footnote omitted). And:
“When a law enforcement officer claims authority to search a home under a warrant, he announces in effect that the occupant has no right to resist the search. The situation is instinct with coercion — albeit colorably lawful coercion. Where there is coercion there cannot be consent.”
Id. at 550, 88 S.Ct. at 1792 (emphasis supplied). The Court did not say that under the peculiar circumstances of that case there was no consent. Rather its holding was expressed in absolute terms. Indeed, Justice Black, in dissent, complained that Mrs. Leath clearly had consented to the search. If a consent were legally possible, I might agree with Justice Black. But the majority of the Court held, in effect, that no matter what words Mrs. Leath used her consent was ineffectual.9 The wisdom of that holding is strikingly demonstrated by the facts of Hoover’s case. See footnote 13, p. 547, infra.
(2) The majority of this en banc court reasons that Hoover validly consented to the search because, “There is no affirmative evidence in the record to support the contention that the invitation was actually involuntary.” Majority opinion at 520. Such reasoning misses the mark. *547First, as Bumper made abundantly clear, the burden is upon the State to prove that a valid consent was given.10 The majority would shift this burden to Hoover. Second, the Court in Bumper noted that the “burden cannot be discharged by showing no more than acquiescence to a claim of lawful authority.” 391 U.S. at 548-549, 88 S.Ct. at 1792 (footnote omitted). Nowhere does Bumper draw a distinction, as the majority in this ease seemingly does, between an invitation and acquiescence. To the contrary, the Court in Bumper cited United States v. Elliott, D.Mass. 1962, 210 F.Supp. 357, in support of its view. In Elliott the defendant said, after being confronted with a search warrant, “You don’t need any warrant,” and led the police into his bedroom. Id. at 359.11
Thus, even assuming that one can consent to a search conducted upon an invalid warrant, Hoover’s alleged statements to Officer Hodges certainly constituted no more of an invitation or acquiescence to search than did Mrs. Leath’s remarks in Bumper, or the defendant’s in Elliott. It is axiomatic that to waive a constitutional right, one must first be aware of the right. Johnson v. Zerbst, 1938, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461. The majority suggests that because Hoover was an experienced trial lawyer he knew of his rights. As a lawyer he did know that a policeman bearing a search warrant has a right, a duty, to enter the premises and perform his task. Indeed Officer Hodges testified that, no matter what Hoover said, the search would have been conducted. Hoover had no conceivable way of knowing the warrant was invalid. There is no evidence that the faulty affidavit was submitted to his perusal. Without knowledge of the warrant’s invalidity, or any reasonable basis to assume such, Hoover’s legal training commanded his acquiescence.12 Consequently, there was no consent. Even assuming arguendo that one may consent to a search conducted under an invalid warrant, the district court’s contrary finding in this case (that Hoover consented) is clearly erroneous.13
In sum, the search warrant at issue was invalid in light of Aguilar, supra, and its precedents. And since there was not a valid consent to the search, the evidence seized should have been suppressed. Mapp v. Ohio, 1961, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081.
II. Confrontation
The majority and I are in complete disharmony with respect to Hoover’s right of confrontation. The majority first reasons that there has been no abridgment of Hoover’s substantive right of confrontation guaranteed under the Sixth Amendment, made applicable to the States by the Fourteenth Amendment, *548and then concludes with the catch-all that, even if Hoover’s right of confrontation was violated, the error was harmless beyond a reasonable doubt. I do not agree with either rationale. Indeed restudy has left me all the more firmly convinced that the decision of the original panel is sound.
A. Posture
For clarity, I again state the three elements to the crime of accomplice under Texas law. The State must prove the existence of each beyond a reasonable doubt: (1) That the principals committed the adjunct crime; (2) that, before the commission of the crime, the accused accomplice advised or encouraged the principals in their endeavors; and (3) that the accused was not present during the actual perpetration of the crime.14
To facilitate proof of the first element Texas fashioned an exception to the hearsay rule, which permits the State to introduce out-of-court confessions or admissions of a principal at the trial of the accomplice. See IV Wigmore § 1079 (3d ed.). As I noted in penning the opinion for the original panel (439 F.2d at 922):
“[T]he cases which allowed the confession of the principal to be used at the trial of the accomplice
“ ‘ * * * g0 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. [Citing authorities.]
“ ‘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. [Citing authorities.] 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.’
[Browney v. State, 1934, 128 Tex.Cr.R. 81], 79 S.W.2d [311] at 314.” 15
At Hoover’s trial in state court, the trial judge, in reliance upon the stated rule, permitted the prosecution to introduce the oral confession of Calvin Sel-lars, one of the principals, through the mouth of Officer C. V. Stone. While Stone was on the stand, and at all other relevant times, Sellars was available to testify. The State could have called him *549to the stand and sought to elicit the confession.16 Rather than following that course, the prosecution asked Stone to relate Sellars’ confession. Importantly, Sellars’ statements contained direct references to Hoover which clearly indicated that Hoover had been an accomplice to the Schepps’ robbery. Defense counsel opposed introduction of the confession in its entirety. The state court overruled that motion. In the alternative, defense counsel sought to have the references directly implicating Hoover deleted prior to Stone’s testimony. The judge refused on the premise that to do so would render the remainder of the confession so fragmentary as to be unintelligible.
Stone testified at great length as to Sellars’ account of the robbery. However, Stone did not relate the confession in one, uninterrupted statement. Rather each and every fact was elicited by pointed, detailed questions from the prosecuting attorney, as is demonstrated in Appendix A to this opinion. Appendix A is Record proof that the panel was correct when it stated: “The sole purpose of most or all of the references to Hoover * * * could only have been to implicate Hoover.” 439 F.2d at 923.
To me it seems obvious that the omission of the references to Hoover so painstakingly extracted from Stone would not have rendered Sellars’ confession unintelligible. Perforce, then, assuming the Texas rule is constitutional, it was not complied with in this case. See panel opinion, 439 F.2d at 922, 923.
Even under Texas law Sellars’ confession was not admissible to implicate Hoover but only to prove that the principals had committed the robbery. The references to Hoover could have been de*550leted,17 particularly since Stone was relating an oral confession. Where a witness is stating what another person told him, there should be greater latitude to delete objectionable portions of the hearsay than where a written confession is being tendered into evidence. In consonance with Texas law and in an effort to alleviate the improper and pernicious effect of Stone’s account of the confession, the trial judge instructed the jury to disregard all references to Hoover. (For the text of that instruction, see majority opinion at 528.) The effect of that instruction is discussed later, infra pp. 558-560.
B. The Law
The Sixth Amendment guarantees to every accused “the right * * * to be confronted with the witnesses against him * * *.” Its comand was made applicable to the States, through the Fourteenth Amendment, in Pointer v. Texas, 1965, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923.18 Hoover complains that his sixth amendment right of confrontation was thwarted by the introduction of Sellars’ confession.
First, the majority contends that even though Sellars was available to testify19 his confession was admissible to prove that the principals had committed the robbery. In an attempt to buttress that position the majority opines, “If a principal’s confession makes no reference to an accomplice, no constitutional question arises.” (Majority opinion, at p. 529, n. 15). Quoting from Bruton v. United States, 1968, 391 U.S. 123, 127, 88 S.Ct. 1620, 20 L.Ed.2d 476, the majority states : “ ‘Evans’ oral confessions were in fact testified to, and were therefore in evidence. That testimony was legitimate evidence against Evans and to that extent was properly before the jury during its deliberations.’ ” (Emphasis mine.) But Bruton involved a joint trial. All the Supreme Court said was that the jury could consider Evans’ confessions in determining his guilt. Proof of Evans’ guilt was not an element to the crime with which Bruton was charged. In contradistinction, proof of the guilt of the principals in this case (a fact which Sellars’ confession tended to show) was an element of the crime with which Hoover was charged. So long as any juror *551entertained a reasonable doubt that the principals had robbed the Schepps, the jury could not convict Hoover. Yet had the jurors in Bruton found Evans innocent they nonetheless could have convicted Bruton. Hence, the majority’s reliance on Bruton in support of its rationale is specious.
Second, the majority argues that Hoover’s sixth amendment rights were not violated when the jury was allowed to hear the references in Sellars’ confession tending to implicate him as an accomplice. In my view, applying the Texas rule so as to admit the confession of an available witness violates the Constitution, although it is admitted solely to prove that he (the witness present but not testifying) committed the adjunct crime.20 Even where the declarant-principal is legitimately unavailable, his confession is not admissible unless there are adequate indicia that his out-of-court statements are true. Assuming arguendo that Sellars’ confession could be introduced to prove his commission of the robbery, it could not be employed to implicate Hoover even if excision of the inculpatory references would render the confession fragmentary.21 Moreover, where as in this ease the Texas rule (allowing the references to Hoover to come in on the coattails of a confession to the adjunct crime) is not properly followed, there can be no doubt that the right to confrontation has been violated. Finally, it is no answer that Hoover could have called Sellars as a defense witness. Nor will it suffice to say that the references to Hoover contained in Sellars’ confession were harmless beyond a reasonable doubt within the meaning of Harrington v. California, 1969, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 and other cases.
There are, as has been indicated, three levels of inquiry in this case. With Sel-lars available to testify, could the State constitutionally introduce his confession to show that the robbery had been committed? Does the Texas rule violate the Sixth Amendment in that it allows statements incriminating the accomplice to be admitted where their deletion would fragment the confession? And, is the right of confrontation abridged where references to the accomplice could have been deleted in consonance with Texas law and without rendering the remainder of the confession unintelligible, but were not so deleted?
(1) The Validity of the Application of the Texas Rule to an Available Declarant.
Under Texas law, in this case one element of the crime of accomplice was proof beyond a reasonable doubt that the principals committed the underlying robbery. Hoover had every right to defend himself by showing a reasonable doubt as to the principals’ commission of the Schepps’ robbery. Hence Sellars’ confession, even in the limited sense that it tended to establish the robbery, served to bear witness against Hoover. Accordingly, Hoover attacks not only that portion of the Texas rule which allows the jury to hear references implicating him as an accomplice, but also the application of the rule to permit the confession of Sellars, where he was an available witness, to be used to prove the principals’ commission of the robbery.
A reading of relevant Supreme Court decisions reveals that, when the declarant does not testify, hearsay evidence as to what he has said is inadmissible unless both (a) the declarant is legitimately unavailable, and (b) there are strong indicia evincing the truth of the matters asserted by hearsay.22
*552In Mattox v. United States, 1895, 156 U.S. 237, 15 S.Ct. 337, 39 L.Ed. 409, the declarant had testified at Mattox’s first trial and had been subjected to cross-examination by Mattox. At a subsequent trial, owing to the intervening death of the declarant, a transcript of his earlier testimony was introduced into evidence. Obviously the declarant was unavailable, in any sense of the word, to testify at the second trial. Since he had been subjected to cross-examination at the earlier trial, the Court held that Mattox’s right of confrontation was satisfied. Thus Mattox involved a situation where the declarant was unavailable but where there were indicia that his previous statements were reliable.
In Barber v. Page, 1968, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255, the State attempted to introduce declarant Woods’ prior testimony given at a preliminary hearing. At the time of trial, Woods was incarcerated in a federal penitentiary. The Supreme Court held that Woods had not been shown to be unavailable because “the state authorities made no effort * * * to secure Woods’ presence at petitioner’s trial.” 390 U.S. at 724, 88 S.Ct. at 1322. Even though there were indicia that Woods’ prior testimony was truthful, it could not be admitted into evidence because he was not an unavailable witness. Said the Court:
“While there may be some justification for holding that the opportunity for cross-examination of a witness at a preliminary hearing satisfies the demand of the confrontation clause where the witness is shown to be actually unavailable, this is not * * * such a case.”
390 U.S. at 725-726, 88 S.Ct. at 1322 (footnote omitted).
In Barber, the declarant’s prior testimony, even though it bore indicia of reliability, was deemed inadmissible because the declarant was available to testify. Certainly, Sellars’ confession should not have been admitted since he too was available.
Both Mattox and Barber involved introduction of prior testimony. Douglas v. Alabama, 1965, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934, concerned the State’s use of a witness’ prior out-of-court confession. In that case the State actually put the declarant, Loyd, on the stand. When questioned about his confession Loyd invoked the Fifth Amendment. The trial judge held the privilege inapplicable because Loyd had already been convicted. Nonetheless Loyd continued in his refusal to answer. Upon the prosecution’s request the trial judge declared Loyd hostile to the State; and “[u]nder the guise of cross-examination to refresh Loyd’s recollection, the [prosecutor] purported to read from the [written confession].” 380 U.S. at 416, 85 S.Ct. at 1075. The written document was never introduced into evidence, although three police officers testified that the confession was Loyd’s.
The Supreme Court held that Douglas’ right of confrontation had been violated:
“In the circumstances of this case, petitioner’s inability to cross-examine Loyd as to the alleged confession plainly denied him the right of cross-examination secured by the Confrontation Clause. * * * Although the [prosecutor’s] reading of Loyd’s alleged statement, and Loyd’s refusals to answer, were not technically testimony, the [prosecutor’s] reading may well have been the equivalent in the jury’s mind of testimony that Loyd in fact made the statement * * *. Since the [prosecutor] was not a witness, the inference from his reading that Loyd made the statement could not be tested by cross-examination. Similarly, Loyd could not be cross-examined on a statement imputed to but not admitted by him. Nor was the opportunity to cross-examine the law enforcement officers adequate to redress this denial of the essential right secured by the Confrontation Clause. * * *
*553“Hence, effective confrontation of Loyd was possible only if Loyd affirmed the statement as his.”
380 U.S. at 419-420, 85 S.Ct. at 1077 (citations omitted).
Douglas is clear authority for the proposition that an available witness must actually testify to afford the accused his right of confrontation. (See note 16, supra.) In Hoover’s case, Sel-lars was available but did not testify. Hence the prosecution could not rightfully have introduced Sellars’ confession by way of Officer Stone. In Douglas, the confession was never put into evidence, but the Court held that the prosecutor’s restatement of it was enough to violate the Sixth Amendment. Here Sellars’ confession was put into evidence. It carried greater weight than did the prosecutor’s remark in Douglas. Hoover’s case is, therefore, stronger than Douglas’ for finding an abridgment of the confrontation right.
The majority makes reference to California v. Green, 1970, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489. In my mind that case supports the view that Hoover’s sixth amendment right was denied. In Green, Porter was arrested for possession of marihuana and named Green as his supplier. At a preliminary hearing Green cross-examined Porter extensively. 399 U.S. at 151, 90 S.Ct. 1930. Nonetheless, Porter remained steadfast in pointing the finger of guilt at Green. At trial Porter took the stand but refused to reiterate his earlier statement. The prosecution read to Porter portions of his testimony given at the preliminary hearing. At that juncture Porter admitted that he had in fact named Green as his supplier but complained that he could no longer remember whether it was true. The trial court admitted the preliminary hearing testimony as substantive evidence. Moreover, the arresting officer testified as to Porter’s prior confession. The policeman’s testimony was also admitted as substantive evidence.
The Supreme Court held that Green’s right of confrontation was satisfied. Granted the policeman’s testimony was hearsay, and so too were Porter’s preliminary hearing statements. But, said the Court:
“Confrontation: (1) insures that the witness will give his statements under oath — thus impressing him with the seriousness of the matter and guarding against the lie by the possibility of a penalty for perjury; (2) forces the witness to submit to cross-examination, the ‘greatest legal engine ever invented for the discovery of truth’; (3) permits the jury that is to decide the defendant’s fate to observe the demeanor of the witness in making his statement, thus aiding the jury in assessing his credibility.
“It is, of course, true that the out-of-court statement may have been made under circumstances subject to none of these protections. But if the declarant is present and testifying at trial, the out-of-court statement for all practical purposes regains most of the lost protections. If the witness admits the prior statement is his [as he did in Green], or if there is other evidence to show the statement is his, the danger of faulty reproduction is negligible and the jury can be confident that it has before it two conflicting statements by the same witness. Thus, as far as the oath is concerned, the witness must now affirm, deny, or qualify the truth of the prior statement under the penalty of perjury; indeed, the very fact that the prior statement was not given under a similar circumstance may become the witness’ explanation for its inaccuracy— an explanation a jury may be expected to understand and take into account in deciding which, if either, of the statements represents the truth.”
399 U.S. at 158-159, 90 S.Ct. at 1935 (footnote omitted) (emphasis supplied).
Thus the dispositive fact was that Porter had been called as a prosecution witness at Green’s trial. Porter’s appearance on the stand convinced the Court that the right of confrontation was intact. As the Court noted, “none of our decisions interpreting the Confrontation *554Clause requires excluding the out-of-court statements of a witness who is available and testifying at trial.” 23 399 U.S. at 161, 90 S.Ct. at 1936. In Hoover’s case, Sellars was available but did not testify. Moreover, in Green the defendant had an opportunity to cross-examine Porter at the preliminary hearing. In this ease Hoover had no such access to Sellars. Clearly, Green is inapposite to this case.
In sum, Sellars’ availability prevented the State from introducing his confession through Officer Stone’s mouth. Yet, even if Sellars’ mere availability does not command this result it nonetheless obtains. For there were not sufficient indicia of the reliability of Sellars’ confession.
In Pointer v. Texas, 1965, 380 U.S. 400, 85 S.Ct. 1065,13 L.Ed.2d 923, a transcript of declarant Phillips’ prior testimony at a preliminary hearing was introduced into evidence at Pointer’s trial. Phillips had left the jurisdiction in the interval between the hearing and trial. Hence he was unavailable to testify. Nonetheless, the Supreme Court held it error to admit the transcript, “ [b] ecause the transcript of Phillips’ statement offered against petitioner at his trial had not been taken at a time and under circumstances affording petitioner through counsel an adequate opportunity to cross-examine Phillips * * 380 U.S. at 407, 85 S.Ct. at 1070. In other words, had petitioner been able to cross-examine Phillips on a prior occasion, there would have been sufficient indicia of reliability to warrant introduction of the hearsay testimony. In the present case Hoover had no such opportunity to cross-examine Sellars. Pointer squarely held that, even though the declarant is legitimately unavailable, there must be strong indicia of reliability (such as are afforded by cross-examination) before the Court will accept hearsay testimony of the declarant’s prior statements.
Dutton v. Evans, 1970, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213, is another case to which the majority turns for support. Dutton involved interpretation of a well-established, but peculiar, rule of law in Georgia. Under that State’s law of conspiracy, statements of one conspirator are admissible against his cohorts even when made during the concealment stage of the conspiracy.
Evans, Truett and Williams were accused of conspiracy to commit murder and of murder. Evans was tried separately. During the trial Shaw testified that, while he was in jail with Williams, Williams had told him, “If it hadn’t been for that dirty son-of-a-bitch Alex Evans, we wouldn’t be in this now.” 400 U.S. at 77, 91 S.Ct. at 214. Evans complained that he had been denied confrontation of Williams. The Court upheld the Georgia rule permitting introduction of Shaw’s testimony.
It is of prime significance that only four members of the Court found the Georgia rule to satisfy the right of confrontation. (Opinion of Justice Stewart, concurred in by Chief Justice Burger, Justices White and Blackmun.) Four Justices vigorously disagreed with that view. (Opinion of Justice Marshall, concurred in by Justices Black, Douglas and Brennan.) The swing vote was cast by Justice Harlan who refused to test the Georgia rule by the Sixth Amendment but rather chose to scrutinize it through the spyglass of due process. Hence, there is no clear holding of the Court.
Justice Stewart noted that “Evans was not deprived of any right of confrontation on the issue of whether Williams actually made the statement related by Shaw,” because Shaw was competent to testify as to that fact. 400 U.S. at 88, 91 S.Ct. at 219. Rather:
“The confrontation issue arises because the jury was being invited to infer that Williams had implicitly identified Evans as the perpetrator of the murder when he blamed Evans for *555his predicament. But we conclude that there was no denial of the right of confrontation as to this question of identity. First, the statement contained no express assertion about past fact, and consequently it carried on its face a warning to the jury against giving the statement undue weight. Second, Williams’ personal knowledge of the identity and role of the other participants in the triple murder is abundantly established by Truett’s testimony and by Williams’ prior conviction. It is inconceivable that cross-examination could have shown that Williams was not in a position to know whether or not Evans was involved in the murder. Third, the possibility that Williams’ statement was founded on faulty recollection is remote in the extreme. Fourth, the circumstances under which Williams made the statement were such as to give reason to suppose that Williams did not misrepresent Evans’ involvement in the crime. These circumstances go beyond a showing that Williams had no apparent reason to lie to Shaw. His statement was spontaneous, and it was against his penal interest to make it. These are indicia of reliability which have been widely viewed as determinative of whether a statement may be placed before the jury though there is no confrontation of the declarant.”
400 U.S. 88-89, 91 S.Ct. 219-220. Additionally, the singular fact which prompted Justice Stewart’s view was that “the possibility that cross-examination of Williams could conceivably have shown the jury that the statement, though made, might have been unreliable was wholly unreal.” Id. at 89, 91 S.Ct. at 220. After all, why would Williams have incriminated himself to Shaw, a mere fellow prisoner if he were not in fact guilty?
Hoover's case is totally distinct from Dutton, and as such the majority’s reliance thereon is wholly misplaced. There were not sufficient indicia of reliability with respect to Sellars’ confession. Comparing the facts of this case to those in Dutton, I note the following: (1) Unlike Williams’ statement in Dutton Sel-lars’ confession contained express assertions of past fact (including assertions with respect to Hoover’s involvement in the crime); (2) where the declarations in Dutton were spontaneous and were made by Williams to one from whom no favor could be expected in return, Sellars’ statements were elicited during a custodial investigation where it would have been natural for the declarant to seek any favor possible and where it might have been in his interest to admit his own role in the crime as long as he implicated Hoover in the same breath;24 and (3) while all of Williams’ statement in Dutton was against his penal interests, that portion of Sellars’ statement implicating Hoover was not similarly against. Sellars’ interest.25
*556The majority would view Justice Stewart’s opinion in Dutton as authorizing hearsay testimony although the declar-ant is available. Yet, as noted above, even if the majority’s interpretation of Justice Stewart’s opinion were correct, there were not sufficient indicia of reliability to warrant Stone’s testimony.26
More importantly, Justice Stewart’s opinion should not be read so broadly. First, as noted in the opinion of the original panel in this case:
“Dutton held that state evidentiary rules may vary from the federal rules in that a statement by one conspirator may be used against another if the statement is made during the time the overt offense is past but during the time in which the conspirators are attempting to avoid being identified. In effect, the state and federal rules may differ on what constitutes the ‘pend-ency of the conspiracy.’ But even the most strained construction of the hearsay exception cannot bring a conspirator's confession under the penumbra of ‘in furtherance of’ or ‘during the pendency of’ the conspiracy.”
Panel opinion, 439 F.2d at 924 n. 6. The Court in Dutton was reviewing a Georgia rule of evidence. That rule was predicated in turn on a substantive rule in Georgia that the conspiracy continues through the concealment stage. Consequently any statement made during the pendency of or in furtherance of the conspiracy was admissible against the co-conspirator. Yet in this case Sellars’ statement was made even after the concealment stage. And, as we said before, no rule of law could include within the period of a conspiracy statements made to the police in confession of the crime. Since Dutton involved a peculiar Georgia law, Justice Stewart’s rationale, even if incorrectly read as broadly as the majority would have it, does not apply to the facts of this case.
Second, I reiterate that there was no majority opinion in Dutton. Justice Stewart’s opinion is not the opinion of the Court. Justice Marshall, with whom three Justices also joined, would have stricken Shaw’s testimony because Williams was available to be called by the State. He did not draw the distinction which Justice Stewart did on the peculiarity of Georgia’s substantive law of conspiracy, a distinction which certainly cannot be drawn in this case.
Third, the goal of the confrontation clause, as noted in Green and acknowledged in Dutton, is to get at the truth. Conceivably the Georgia rule of law at issue in Dutton was aimed at that end. In this case, at least insofar as Sellars implicated Hoover, even Texas realizes that its rule is not geared solely to finding the truth. For the law of Texas commands that the jury be instructed to disregard any statements implicating the accomplice.
Fourth, to give Justice Stewart’s opinion in Dutton the broad reading suggested by the majority would be to overrule the unquestionably sound holdings in cases such as Barber v. Page, supra, which were cited by Justice Stewart with approval.
In sum, I would adhere to the general principal that if the declarant is available, it is he who must testify; and that if the declarant is unavailable, there must be strong indicia of reliability before hearsay statements may be introduced against the defendant.27 In this *557case, Sellars was neither unavailable nor were there sufficient indicia of reliability supportive of the truth of his confession, particularly with respect to that portion of his confession which implicated Hoover. Hence, under any view of the Confrontation Clause, Stone’s recital of Sellars’ confession was inadmissible.
Kirby v. United States, 1899, 174 U.S. 47, 19 S.Ct. 574, 43 L.Ed. 890, appears to be direct authority for my view of this case. Kirby has been cited with approval in Pointer v. Texas, supra, 380 U.S. at 404, 410, 420, 85 S.Ct. 1065. Kirby was charged with receiving stolen goods. As an element of the crime, the Government was required to prove the guilt of the three alleged thieves. The trial court admitted evidence that the three principals had all been convicted, two of them upon pleas of guilty. I note that two of the convictions include confessions by the principals. The principals themselves were not called as witnesses against Kirby. In holding the Government’s practice violative of Kirby’s sixth amendment right of confrontation, the Court opined:
“Notwithstanding the conviction of [the principals], it was incumbent upon the government, in order to sustain its charge against Kirby, to establish beyond a reasonable doubt (1) that the property described in the indictment was in fact stolen from the United States * * *.
« * * * * * *
“ * * * The record of the conviction of the principals could not, however, be used to establish, against the alleged receiver, charged with the commission of another and substantive crime, the essential fact that the property alleged to have been feloniously received by him was actually stolen from the United States. Kirby was not present when [two of the principals] confessed their crime by pleas of guilty, nor when [the third] was proved to be guiity by witnesses who personally testified before the jury.”
174 U.S. at 53-54, 19 S.Ct. at 576-577 (emphasis supplied).28 Hoover’s case is indistinguishable. Sellars could have been called; he was not. The State must bear the consequences.29
*558(2) The Limiting Instruction.
The majority emphatically asserts that Hoover’s right of confrontation was not abridged even insofar as Sellars’ confession directly implicated Hoover as an accomplice. I cannot agree. Assuming ar-guendo that Sellars’ confession was admissible to prove the principals committed the robbery (which it was not),30 the Sixth Amendment does not permit introduction of Sellars’ confession to show that Hoover was an accomplice. Even prior to the decision in Schepps, supra, Texas itself recognized the impropriety of utilizing confessions to such end. Hence State law forbade remarks incul-patory of the accomplice, at least where their inclusion was not inextricably tied to the remainder of the confession. In this case it is clear beyond cavil that the state court failed to exclude references to Hoover which could have been deleted without rendering Sellars’ confession even slightly unintelligible.31 That error rises to constitutional proportions in this case.
More importantly Texas cannot permit the jury to hear Sellars’ alleged references to Hoover even if their omission would unduly fragment the confession. In Bruton v. United States, 1968, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476, two defendants, Bruton and Evans, were jointly tried for violating postal laws. The oral confession of Evans was introduced by way of testimony from a postal inspector. The confession incriminated Bruton as well. The jury was instructed to consider the confession only with respect to Evans and to disregard all references to Bruton. In a carefully reasoned opinion the Supreme Court held the limiting instruction to be *559of no avail. Bruton’s right to confront Evans was abridged.32
Prior to Bruton the Court had adhered to the philosophy expounded upon in Delli Paoli v. United States, 1957, 352 U.S. 232, 77 S.Ct. 294, 1 L.Ed.2d 278. Said the Court in Bruton:
“The basic premise of Delli Paoli was that it is ‘reasonably possible for the jury to follow’ sufficiently clear instructions to disregard the confessor’s extrajudicial statement that his codefendant participated with him in committing the crime. 352 U.S., at 239 [, 77 S.Ct., at 299], * * *
“ * * *
“Delli Paoli assumed that [the] encroachment on the right to confrontation could be avoided by the instruction to the jury to disregard the inadmissible hearsay evidence. But, as we have said, that assumption has since been effectively repudiated. True, the repudiation was not in the context of the admission of a confession inculpating a codefendant but in the context of a New York rule which submitted to the jury the question of the voluntariness of the confession itself. Jackson v. Denno, 378 U.S. 368 [, 84 S.Ct. 1774, 12 L.Ed.2d 908]. Nonetheless the message of Jackson for Delli Paoli was clear. We there held that a defendant is constitutionally entitled at least to have the trial judge first determine whether a confession was made voluntarily before submitting it to the jury for an assessment of its credibility. More specifically, we expressly rejected the proposition that a jury, when determining the confessor’s guilt, could be relied on to ignore his confession of guilt should it find the confession involuntary. Id., at 388-389, 84 S.Ct., at 1786-1788.”
391 U.S. at 126-129, 88 S.Ct. at 1622-1624 (footnote omitted) (omissions by the Court). The command of Bruton is resolute: “ ‘The naive assumption that prejudicial effects can be overcome by instructions to the jury * * * all practicing lawyers know to be unmitigated fiction,’ ” 391 U.S. at 129, 88 S.Ct. at 1624, quoting from Krulewitch v. United States, 1946, 336 U.S. 440, 453, 69 S.Ct. 716, 93 L.Ed. 790 (Jackson, J., concurring). Clearly in light of Bruton it would be wrong to conclude that the jury which convicted Hoover disregarded Sellars’ references to Hoover.
The majority sedulously suggests that Bruton is distinguishable, first since Bruton involved a joint trial whereas Hoover was tried separately. The decisiveness of that factor escapes me. Sellars’ statements were no less damaging because he was not on trial. We must look to the harm inflicted on Hoover. It is identical to the injury suffered by Bruton. Next, says the majority, “While coconspirators are coequals in crime as a matter of substantive criminal law, principals and accomplices are not.” Majority opinion at 530. Be that as is may, the jury’s collective mind is no less infected owing to a subtle distinction between the substantive law of conspiracy and the crime of accom*560plice. Finally, the majority notes that “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.” Id. at 530. Yet in Bruton the prosecution had an equally, if not more, compelling reason to introduce Evans’ confession. The Government was duty bound to seek his conviction, just as the State was obliged to prove the principals’ guilt in this case.
The majority seemingly avers that the rule in Bruton is not absolute — that the trial judge in his discretion may conclude that the particular jury before him will actually disregard inadmissible statements like the one here at issue:
“[A]n 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.”
Majority opinion at p. 530. Yet nowhere in the Bruton opinion does the Supreme Court suggest, intimate or imply that the trial judge is to be afforded any such discretion.33 The majority’s view is, I respectfully submit, entirely erroneous.
Hence, insofar as Bruton impugned the effectiveness of a limiting instruction in the context of confession implicating another’s participation in a crime, this Court must pay the case its proper heed. Texas has sought to say that on balance any harm inflicted on Hoover by Sellars’ references to him is offset by a limiting instruction. Even assuming arguendo that Sellars’ confession was admissible to prove his role in the robbery, it is clear that Texas’ effort at balancing fails to withstand even the meekest breeze redounding from Bruton.34
(3) Hoover’s Right to Call Sellars to the Stand
Sellars could have been called to the stand by Hoover. Although the majority does not rely on any such theory, I am constrained to re-emphasize what was said in the opinion of the original panel in this ease:
“That Sellars was available to be called as a witness does not mitigate the prosecution’s misconduct here. The State sought to shift to the defendant the risk of calling Sellars to the stand. To accept the State’s argument that the availability of Sel-lars is the equivalent of putting him on the stand and subjecting him to cross-examination would severely alter the presumptions of innocence and the burdens of proof which protect the accused. Hoover’s undoubted right to call Sellars as a witness in his behalf cannot be substituted for his Sixth Amendment right to confront Sellars as a witness against him.”
439 F.2d at 924.35
*561Moreover, it is not at all clear whether Sellars would have testified had Hoover called him. At the time of Hoover’s trial, Sellars had not yet been tried. Hence he might well have asserted his fifth amendment privilege against self-incrimination. In Douglas v. Alabama, supra, the Supreme Court held that, where a witness takes the stand and pleads the Fifth Amendment, the prosecution cannot introduce, even obliquely, the witness’ prior confession. To allow the State to introduce Sellars’ confession in this case would by indirection subvert the rule in Douglas.
In that same vein, even if Sellars would have testified, it is not clear that Hoover would have been given the right of cross-examination. Ordinarily, one cannot cross-examine his own witness. Only when the trial judge, in his discretion, declares the witness hostile does the right of cross-examination inure. Of course, as the majority points out, cross-examination is not synonymous with confrontation. Rather confrontation is broader. It includes the right of cross-examination. E. g., Pointer v. Texas, supra, 380 U.S. at 404, 85 S.Ct. 1065. And if cross-examination is not afforded, some other indicia of the reliability of the declarant’s statements must be present. Cf. Dutton v. Evans, supra. In this case there were no other adequate indicia.36 Hence, the right to cross-examine Sellars was constitutionally mandated in this case. Hoover’s right to confront Sellars simply cannot turn on the trial court’s discretionary power to declare Sellars hostile. Moreover, even if Hoover were permitted to cross-examine Sellars, it appears that Hoover would not have been allowed to impeach him. Under Texas law, in order to impeach his own witness, Hoover would have to demonstrate surprise. See 62 Tex.Jur.2d §§ 327-28. Hoover could not claim surprise had Sellars taken the stand and affirmed his earlier confession.
III. Harmless Error
The majority states that the original “panel’s cryptic rejection of the ‘harmless error’ rule * * * was patently erroneous” (opinion at p. 539); I must similarly spurn the majority’s inadequately supported statement that even aside from Sellars’ confession the evidence against Hoover was “overwhelming” {id. at 533) as well as “manifest and overpowering” {id. at 537). It is not necessary to consider “harmless error” with respect to the question whether the principals named in the indictment committed the Schepps’ robbery. It is sufficient to demonstrate that the error was not harmless insofar as Sel-lars’ confession implicated Hoover.
The “harmless error” rule as it relates to constitutional error was expounded upon in Chapman v. California, 1967, 386 U.S. 18, 23, 87 S.Ct. 824, 827, 17 L.Ed.2d 705: “‘The question is whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction,’ ” quoting from Fahy v. Connecticut, 1964, 375 U.S. 85, 86-87, 84 S.Ct. 229, 11 L.Ed.2d 171 (emphasis mine). Continuing, the Court said that to avoid reversal the beneficiary of the error must “prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.” 386 U.S. at 24, 87 S.Ct. at 828. In sum, the court must be convinced that the error “was harmless beyond a reasonable doubt.” Id.
The majority undertakes to recount Spivey’s detailed, sordid account of the robbery including its references to Hoover. Somehow, I suppose, the majority believes Spivey’s testimony gains credence through repetition. Of course Spivey singularly lacked credibility. He *562was given complete immunity. Under Texas law his testimony, unless corroborated, cannot convict Hoover. Was it sufficiently corroborated? The jury might well have answered that question in the negative.
Interspersed in the majority’s lengthy narration of Spivey’s testimony are three excerpts from the evidence submitted at Hoover’s trial, which the majority views as “overwhelming.” First, Mrs. Tuck and the Schepps testified that during the robbery the three masked assailants phoned an unidentified party, seemingly for advice. At most that testimony confirms that the robbers made telephone calls during the crime. And it should be borne in mind that the jury had the right to conjecture that Spivey, as a prosecution witness, may have been aware of what the other witnesses were going to say. The similarity in versions might be less than fortuitous.
Second, Hoover was found in possession of certain diamonds which a jeweler rather hazily identified as belonging to the Schepps.37 Even if the jurors accepted the identification, they might have believed that since Hoover was Spivey’s attorney he somehow came into possession of the stones after the robbery and without having played a role in planning the crime. To convict Hoover as an accomplice, the State must prove that he encouraged the adjunct crime before the act. Possession of the diamonds does not imply such a role. Finally, as has been demonstrated, the diamonds should not have been introduced into evidence at all, having been seized in violation of the Fourth Amendment.
Third, the majority puts great emphasis on William J. Lyon’s testimony. The jury might have disbelieved all or part of Lyon’s testimony. The witness was nineteen years of age and had been convicted of breaking and entering. According to his story, Hoover had shown him a man’s diamond ring and had told him the ring was from the Schepps’ robbery. There appears no reason for Hoover to make the statement and engage in the conduct to which Lyon testified. Even more incredible is Lyon’s testimony that for the paltry sum of $150 he, his mother and his three brothers left Texas to avoid testifying. Finally, Lyon testified only that “[Hoover] said it was probably a hot ring and it probably came from the Schepps’ robbery.” (R. 718) (emphasis supplied). That statement does not support an inference that Hoover encouraged the robbery before it was committed. On the other hand, it is clear that Hoover was representing Lyon in a probate matter and that Lyon never received any money or property under the will at issue. That fact might weaken in the jury’s mind the weight of Lyon’s testimony. Though it is not for us as appellate judges to pass upon Lyon’s credibility, we would be remiss in ignoring the jury’s prerogative to do so.
The evidence tending to show that Hoover had urged the robbery was scant. Only Spivey testified directly to that point. Yet the trial court allowed the jury to hear similar inculpatory remarks extracted from Stone by the prosecution during Stone’s account of Sellars’ confession. Can it truly be said that there is not a “reasonable possibility” Sellars’ alleged statements “might have contributed to the conviction”? Chapman, supra, 386 U.S., at 23, 87 S.Ct. at 827. I think not.
The majority relies heavily on the decision in Harrington v. California, 1969, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284. In that case the State introduced the confessions of two nontestifying CO-*563defendants which placed Harrington at the scene of the crime. But importantly, Harrington himself had admitted his presence at the scene, though he disputed his participation in the crime. It is obvious that the confessions of the two codefendants were merely cumulative to Harrington’s own admission. In my mind Sellars’ confession was clearly prejudicial. Without its benefit the jury would have been compelled to draw inference upon inference to find evidence corroborative of Spivey's testimony.38 Thus, even assuming arguendo that it was harmless error to admit Sellars’ confession to prove the principals’ commission of the robbery, admission of the references to Hoover makes reversal necessary.
At most this case is like Chapman in that it involved a “reasonably strong ‘circumstantial web of evidence.’ ” 386 U.S. at 25, 87 S.Ct. at 829. But, as in Chapman, absent the constitutional error “honest, fair-minded jurors might very well have brought in [a verdict of] not-guilty. Under these circumstances, it is completely impossible for us to say that the State has demonstrated, beyond a reasonable doubt that the [constitutional infirmity] did not contribute to” Hoover’s conviction. Id. at 26, 87 S.Ct. at 829.39
For the foregoing reasons the original panel was clearly correct in holding that Hoover’s conviction had been obtained by the introduction of the fruits of the nighttime search of his home, made in violation of his fourth and fourteenth amendment rights, and by the introduction of Stone’s account of Sellars’ confession in violation of Hoover’s sixth and fourteenth amendment rights, and that neither one of these constitutional errors can be held harmless. The district court’s denial of Hoover’s habeas petition should be reversed. I respectfully dissent.
APPENDIX “A”
Note the following colloquy:
“A. [Sellars] stated that he and John Oscar Young and Samuel Spivey were the individuals who went into Mr. and Mrs. Schepps’ house.
“Q. Do you recall whether or not Sellars stated at that time during the conversation how the three of them got together?
“A. Yes Sir.
“Q. How was that ?
“A. Sellars told me that he received a telephone call from Sam Hoover asking him to take part in this robbery * *
(R. 535-36.) It is apparent that the prosecution was not content to let Stone begin at the beginning (of the robbery); rather, the prosecution wanted Stone to go back in time.
After recounting the details of the robbery and after describing the items stolen, the prosecution sought a detailed description from Stone as to what Sel-lars had said of the events following the actual robbery. Stone’s account was re-*564píete with and permeated by references to Hoover:
“A. [Sellars] told me that he took all the articles in this jar home with him and he later called Sam Hoover and told him he had the articles and was going to throw them away. He stated he was advised not to throw them away and above all not to throw away the necklace, to bring the whole loot over to Pasadena and let Mr. Hoover look it over.
“Q. What did Sellars tell you he did with reference to that?
“A. He stated after he talked to him he started to Pasadena—
“Q. Talked to whom ?
“A. Mr. Hoover, and he started for Pasadena and he thought some City Detectives were about to arrest him and he went into a small grocery store, a Chinese grocery store on Edwards Street and went in like he was going to buy something and he took the necklace and hid it under a soap box. I think he said he bought some hair oil or a pocket comb and started back out of the grocery store and either while he was in the grocery store or after he had stepped out, he was stopped by some City Officers and questioned.
“Q. Was he taken into custody at that time?
“A. No sir.
“Q. What did he do then according to his story?
“A. He told me he then went back home and called Sam Hoover again and told him he had been stopped and told him he hid the necklace in the store, and he told me Sam told him to stay away from the place and not go back because he may be followed, being watched, and he said he waited about three or four hours and went back to the store and looked under the soap box and the necklace was still there where he placed it. He then took the necklace and went to Sam Hoover’s house in Pasadena and was let in through the rear door and he stated at that time he showed him the necklace.
“Q. Showed who the necklace?
“A. Sam Hoover. He showed Sam Hoover the necklace.
“Q. What else?
“A. He stated that Sam Hoover told him to sit down and wait and he left the house itself and walked out in the back yard and was gone for a period of ten or fifteen minutes and came back and handed him back the mounting and that the diamonds had been removed.
“Q. What, if anything, did Sellars say he did with the mounting after the diamonds were removed ?
“A. He said when Sam Hoover gave him the mounting back it was wrapped in a small piece of blue paper. Sam Hoover told him to dispose of the mounting.
“Q. Did he say he did so or not?
“A. He stated he did, that he disposed of it on the way back to Houston, that he threw it into a horse pasture, and he stated to me before he threw it away he carried it in his mouth and he had chewed it and bit it with his teeth to compress it into a small item and as he passed the horse pasture he tossed it out in the pasture while he was still driving at about a thirty mile an hour speed limit.”
(R. 541-44.)
Only after having thoroughly questioned Stone about the events subsequent to the robbery (remember, the confession was admitted solely to prove the principals’ commission of the robbery itself) did the prosecution backtrack and ask: “* * * [Did] Sellars [make] any reference to a phone call or two *565[made during the robbery] ?” lowing colloquy ensued: The fol-
“A. Yes sir, he did.
“Q. What did he tell you in that regard?
“A. They were to receive their instructions from Sam Hoover after they got into the house as to how to proceed and as to where to look for the money.
“Q. And did they follow those instructions ?
“A. Calvin told me they did receive the phone call. They made one and talked to Sam Hoover. They did receive instructions and they did look where they were told to look.
“Q. Do you recall whether or not Sel-lars told you who actually called the defendant Hoover?
“A. I believe to the best of my knowledge he stated John Oscar Young called him.”
(R. 544-45.)
. The majority and I are in disagreement as to some of the facts and reasonable inferences established by constitutionally admissible evidence. Such evidence and inferences can more conveniently be discussed in later parts of this opinion.
. In connection with the majority’s statement, on page 518 of its opinion, that “Sam Hoover is presently serving a sixty-year sentence imposed by the Criminal District Court of Harris County, Texas,” I express some doubt because Hoover is also under an eiglit-year sentence imj)osed by the United States District Court for the Southern District of Texas for making false income tax returns. See Hoover v. United States, 5 Cir. 1966, 358 F.2d 87, cert. denied, October 1, 1966, 385 U.S. 822, 87 S.Ct. 50, 17 L.Ed.2d 59. I do not know what sentence Hoover is presently serving, but I do not believe the question is material to this appeal.
. I submit that the fallacy in the majority’s reasoning becomes self-evident when it is recognized, as will presently be demonstrated, that Aguilar is not a “decision which narrows the scope of permissible searches.”
. From which the panel had quoted:
“ ‘It is not necessary that appellant rely on the Aguilar decision retroactively since his conviction was not final when the decision in Aguilar was rendered.’ ”
439 F.2d at 917.
. The affidavit in Agxtilar read in relevant part:
“ ‘Affiants have received reliable information from a credible person and do believe that heroin, marijuana, barbiturates and other narcotics and narcotic paraphernalia are being kept at the above described premises for the purpose of sale and use contrary to the provisions of the law.’ ” 378 U.S. at 109, 84 S.Ct. at 1511.
The affidavit at issue in this case read in part:
“My belief as aforesaid is based on the following facts: Information from a reliable source that the above described property is now being concealed at the above address.” 439 F.2d at 925.
Digressing slightly it should also be noted that in this case the quoted language in the affidavit was not carried forward in the search warrant, the only document handed to Hoover. To the contrary, that warrant stated positively that the affidavit alleged “that said property is now concealed by Sam Hoover in his home located at * * 439 F.2d at 925.
. My rationale is the same expressed in the decision of the original pane):
“ ‘A search conducted in reliance upon a warrant cannot later be justified on tlie basis of consent if it turns out that the warrant was invalid.’ [Quoting from Bumper v. North Carolina, 1968, 391 U.S. 543, 549, 88 S.Ct. 1788, 20 L.Ed.2d 797.] The officer’s return on the back of the search warrant is record evidence that the search was conducted in reliance on the warrant. Conceding arguendo, however, that the search can be justified on the basis of consent, we cannot agree that Iloover voluntarily consented to the search.”
439 F.2d at 920.
. As the court in Naples v. Maxwell, S.D.Ohio 1967, 271 F.Supp. 850, 856, said:
“Where a search, as in this case, has been instituted under the authority of a searcli warrant, tlie question of consent cannot arise in tlie absence of a plain and clear showing that the individual being subjected to the search has refused to recognize that tlie search warrant is valid and binding. Stated otherwise, unless an accused, after being served with a search warrant, unequivocally states that he believes that tlie search warrant is unlawful and illegal, he cannot consent to the subsequent search.”
Naples was cited with approval by the Supreme Court in Bumper v. North Carolina, supra.
. Tlie majority does not contest Bumper’s retroactivity. Nonetheless some comment is in order. Bumper announced no new or novel rule; the Court cited a number of cases as direct authority for its holding. At least one court lias explicitly *546recognized the significance of Bumper’s reliance on prior case law. See United States v. Retolaza, 4 Cir. 1968, 398 F.2d 235 (“Bumper, as the citations contained therein demonstrate, announced no new or novel constitutional rule ...... *.”); see also Williams v. United States, 1971, 401 U.S. 646, 91 S.Ct. 1148, 28 L.Ed.2d 388 (announcing the standard of retro-activity). Moreover, in Overton v. New York, 1968, 393 U.S. 85, 89 S.Ct. 252, 21 L.Ed.2d 218 the Supremo Court remanded a case involving a pre-Bumper search for reconsideration in light of Bumper. The district court in this case erred in concluding that Bumper is not retroactive. See Hoover v. Beto, S.D.Tex.1969, 306 F.Supp. 980, 989.
. The Court in Bumper quoted at length from Meno v. State, 197 Ind. 16, 24, 164 N.E. 93, 96, in support of its holding:
“ 'One who, upon the command of an officer authorized to enter and search and seize by search warrant, opens the door to the officer and acquiesces in obedience to such a request, no matter by ichat language used m sueh acquiescence, is but showing a regard for the supremacy for the law. * * * The presentation of a search warrant to those in charge at the place to be searched, by one authorized to serve it, is tinged with coercion, and submission thereto cannot be considered an invitation that would waive the constitutional right against unreasonable searches and seizures, but rather is to be considered a submission to the law.’ ”
391 U.S. at 549 n. 14, 88 S.Ct. at 1792 (emphasis mine) (omission by the Court).
. Said the Court: “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.” 391 U.S. at 548, 88 S.Ct. at 1792.
. Similarly, the Eighth Circuit Court of Appeals, in McCreary v. Sigler, 1969, 406 F.2d 1264, found no consent where the accused had said, having been shown a warrant, “You don’t need it. Go ahead and search.” Id. at 1267.
. See the final paragraph of note 5, supra.
. Hoover’s case vividly illustrates the injudicious aspect of turning the existence of a consent to a search had upon an illegal warrant on the words chosen by the person to be searched. When Officer Hodges and the eight other officers arrived at Hoover’s door, they were relying on the warrant. (Their reliance is evidenced by the return ultimately made on the warrant.) It is doubtful that much attention was paid to the precise words of acquiescence chosen by Hoover.' Only after some months had elapsed was Hodges called upon to relate what Hoover had said. Curiously, Hodges’ account corresponded exactly with the language of Stanford v. State, 1942, 145 Tex.Cr.R. 306, 167 S.W.2d 517, 519, a case in which the Texas court validated a consent given to a search conducted pursuant to an allegedly illegal warrant.
. See note 1 and accompanying text to panel opinion, 439 F.2d at 915.
. As noted in the panel opinion, 439 F.2d at 922:
“By peculiar coincidence, the rule is discussed at length in a * * * case in which Mair Schepps, the victim of this robbery, was charged with being an accomplice to the commission of a different offense. Schepps v. State, Tex.Cr.App.1968, 432 S.W.2d 926, 927, 938-943.”
The majority, at opinion pp. 524-525, makes reference to the original decision in Schepps but fails to note the opinion concurred in by two of the five justices on the Texas high court in answer to the State’s motion for rehearing. 432 S.W.2d at 938, et seq„ Therein the court held that in consonance with certain decisions of the United States Supreme Court (discussed infra) the Texas rule is no longer constitutionally applicable when the declarant whose confession is sought to be intx-oduced is himself available to testify. That is, the declarant must take the stand. Moreover, three justices agreed that in no event can a confession be admitted in which direct l-eferences are made to the alleged accomplice. For, in light of Bruton v. United States, 1968, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476, it may no longer be assumed that the jury will heed a limiting instruction to disregard such references. Notably, Bruton was given retroactive effect in Roberts v. Russell, 1968, 392 U.S. 293, 88 S.Ct. 1921, 20 L.Ed.2d 1100.
For fuller discussion of Schepps see infra, note 29.
. It may be that Sellars would have refused to testify, asserting his fifth amendment privilege against self-inerimination (at the time of Hoovers’ trial, Sellars had not yet been tried) ; or it may be that Sellars would have recanted his confession. But there is no evidence that either of these possibilities would actually have ensued if the prosecution had called him to the stand.
After having received my dissenting opinion the majority has seen fit to abandon its original rationale and make the spurious assertion that Sellars was unavailable to testify. The State of Texas never posed that argument and until this time neither has the majority. The majority now contends that since Sellars “would” have taken the Fifth Amendment, the prosecution was justified not only in omitting to call Sellars as a witness but also in permitting Officer Stone to testify as to Sellars’ confession. It is not our role as appellate judges to conclude as an absolute fact that Sellars would have pleaded the Fifth Amendment. Indeed he might simply have recanted (or perhaps even affirmed) his earlier confession. But if the prosecution feared that Sellars would have refused to testify, the short answer would have been to try Sellars first. After all appeals were exhausted, the Fifth Amendment would no longer be available.
Yet even assuming Sellars would have asserted the privilege, it does not follow that the prosecution could introduce the confession by way of Stone. To the contrary, in Douglas v. Alabama, 1965, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934, the Supreme Court held that if one in Sellars’ shoes pleads the Fifth Amendment the prosecution cannot introduce the confession by other means. In my mind, the facts in Douglas are indistinguishable from the majority’s view that Sellars “would” have taken the Fifth Amendment. When a witness can be called to the stand he is said to be “available” even though he might refuse to testify. The majority misinterprets the meaning of the word “available” as used in defining the constitutional right of confrontation. Cf. Mancusi v. Stubbs, 1972, 408 U.S. 204, 92 S.Ct. 2308, 2312-2313, 33 L.Ed.2d 293. If a witness does refuse to testify, the prosecution cannot otherwise introduce his confession. For to do so would be to deny the defendant this right of confrontation. Douglas, supra. It is the prosecution which must suffer the consequences if Sellars would have pleaded the Fifth Amendment, not Hoover.
The majority also reasons that had the prosecution put Sellars on the stand prior to his own trial, the State’s attorney would have been guilty of possible misconduct. Never have I heard of any such rule or law. The majority cites no authority for its view. Moreover, had the State tried Sellars first, under no theory would there be any misconduct in calling him as a witness at Hoover’s trial.
. I re-emphasize that Texas law allows the confession only to show that the principals had committed the robbery. If the statement that Hoover had organized the plan were deleted, the impact of Sel-lars’ confession would not have been impaired insofar as it related to the actual perpetration of the crime. Moreover, that statement goes solely to showing that Hoover encouraged the crime beforehand, an element of the offense of accomplice which under Texas law cannot be proved or even corroborated by Sellars’ confession.
Similarly, the statement that Hoover was telephoned during the crime adds little, if anything, to the testimony. At most the state court should have permitted testimony which stated only that telephone calls had been made. There was no need to refer to Hoover as the party on the other end of the line. As the majority opinion notes (p. 529), Texas has adopted, at least in part, the English practice of blanking out the names of coindictees. See VII Wigmore, Evidence § 2100(d) (3d ed.).
Finally, the testimony as to what Sel-lars did with the loot after leaving the Sehepps’ house does not significantly lend credence to Sellars’ admission that a robbery had actually occurred. Even if testimony as to the events which transpired subsequent to the robbery were admitted, there was no reason to permit testimony naming Hoover as being involved. Stone could have simply said that Sellars communicated with “another person” after the crime and followed that person’s instructions as to disposing of the stolen goods.
Thus, the majority’s view that the state court was correct in holding that deletion of the reference to Hoover would fragment the remainder is, in my opinion, untenable.
. That Pointer, decided April 5, 1965, eight months after Hoover’s criminal trial, is applicable to this case is not contested by the majority (majority opinion at 528) and is sustained by the panel opinion (439 F.2d 923).
. But see note 16, supra.
. Two of five justices on the Texas Court of Criminal Appeals have, since deciding Hoover's case, adopted this view of the Texas rule. See Schepps v. State, Tex.Cr.App.1968, 432 S.W.2d 926, discussed infra, note 29.
. See footnote 20, supra.
. In this case the State does not contend that Sellars was legitimátely unavailable. But see the majority’s position discussed in note 16, supra. Moreover, the Texas *552rule of evidence here scrutinized recognizes tliat Sellars’ confession insofar as it contains references to Hoover, should not be considered by the jury.
. In Douglas the declarant was not actually testifying, thus the Court excluded references to his earlier confession.
. Sellars’ judgment of the importance which the State attached to fastening guilt on Hoover would be borne out by the subsequent grant of complete immunity to Spivey in exchange for his testimony against Hoover.
. Notably the Texas Court of Criminal Appeals, the highest criminal court in Texas, has recently said, with respect to use of a principal’s confession which implicates the alleged accomplice who is on trial separately:
“One could speculate at length as to why people confess — fear, duress, conscience, revenge, reward, offers of immunity, or leniency, etc.
“While a confession is admissible against the person making the same as a declaration against interest, what he says therein about others may be based on spite, on fear, pique, malice, or other motives not leading to the truth. When the State has laid the proper predicate to authorize the introduction into evidence of the principal’s confession, does this assure the trustworthiness of the instrument, without the accused’s right of cross-examination, or to test the recollection of the principal and without the opportunity for the jury to observe the principal’s demeanor? I think not.-
Schepps v. State, Tex.Cr.App.1968, 432 S.W.2d 926, 942 (Opinion denying State’s Motion for Rehearing) (three of five justices concurring). In light of the inherent unreliability of a principal’s implication of his accomplice, this Court *556should not imbue Sellars’ confession with the requisite indicia of reliability.
. The majority recognizes the need for such indicia (majority opinion at 532-534) and even asserts that “the record must affirmatively show those indicia.” Id. at 533. Nowhere in its opinion does the majority demonstrate adequate indicia of the trustworthiness of Sellars’ confession, particularly insofar as it implicates Hoover. It cannot be over-emphasized that in this case that is the most important, indeed critical, part of Sellars’ confession.
. Since the preparation of this dissenting opinion, the United States Supreme Court has cogently confirmed the two-part test which I urge. Mancusi v. Stubbs, cited supra, n. 16. That is, in order to introduce hearsay statements of a non-appear*557ing declarant, the State must show both that he is legitimately unavailable and that there are strong indicia of reliability of the hearsay statements. All nine Justices agreed that such a two-part approach is required by the Sixth Amendment, though Justices Marshall and Douglas felt that the test had not been satisfied on the facts of that case.
. See also, Commonwealth v. Elisha, 3 Gray 460.
. In Schepps v. State, Tex.Cr.App.1968, 432 S.W.2d 926, two of five justices held the Texas rule to be violative of the sixth amendment right of confrontation where a non-appearing declarant is available to testify. (Oddly enough, that case involved a prosecution of Mair Schepps, the victim here, but there charged as an accomplice to counterfeiting cigarette tax stamps.) In Sohepps the confessions of three available principals to the crime were introduced to prove that they had committed the adjunct crime. As in this case, the confessions contained references to the accomplice which could have been excised without destroying the continuity of the confessions. Two justices held the confessions to be entirely inadmissible, even for the limited purpose of establishing the principals’ guilt, since the principals themselves could have been called as witnesses. A third justice found error because, as in this case, the trial judge could have required deletion of the references to the alleged accomplice without fragmenting the confession.
Said two of the justices :
“In the case at bar the State made no effort to demonstrate any great probative need for the evidence or to show that the alleged principals were actually unavailable to the prosecution as witnesses ; they merely relied upon the old [rule].”
432 S.W.2d at 942. Similarly, in Hoover’s case the prosecution failed to make such efforts. Rooting their holding to the rationale of Bruton, and other cases discussed supra, the two justices continued:
“Certainly it may be argued that none of these decisions involved the admissions of an alleged principal’s confession at the separate trial of an accomplice, but we cannot waltz around the important constitutional issue here involved and validly distinguish the cases *558by simply color matching the facts. We cannot adopt the luxury of merely saying this case involved the use of examining trial testimony, this one did not; that case was a joint trial, this one was not.
“The State, of course, was required to prove the guilt of the alleged principals in the case at bar in order to convict the appellant as an accomplice, and it was entitled to present all the legitimate evidence it possessed to sustain its burden of proof despite the fact the evidence already presented appeared to have clearly established that element of the offense charged. The State, however, because of its burden of proof, was not entitled to introduce the extrajudicial confessions of three of the alleged principals in violation of the appellant’s federal and state constitutional right of confrontation.
“In the case at bar, despite appellant’s objections, the State made no effort to show that the appellant had previously been afforded an adequate opportunity to be confronted by and to cross-examine the three principals whose confessions were used and that they were presently unavailable to the State so as to bring the case within the recognized exception to the constitutional right of confrontation. See Barber v. Page, supra.”
432 S.W.2d at 943 (emphasis supplied). The Texas court has since reaffirmed the validity of the holding in Schepps. See Tucker v. State, Tex.Cr.App.1971, 461 S.W.2d 630, 634 (“ * * * Schepps, supra, has effectively overruled [prior state] cases * * * to the extent that they allow introduction of the principal’s confession in the trial of the accomplice * * *.”) ; Carey v. State, Tex.Cr.App.1970, 455 S.W.2d 217, 220. And contrary to the majority’s statement in footnote 10 of its opinion, Chapman v. State, Tex.Cr.App.1971, 470 S.W.2d 656, in no way undermines the Schepps decision.
. The majority apparently would argue that Sellars’ confession of his own guilt was admissible since it was an admission against interest. Nonetheless, I reiterate, Sellars’ confession is wholly inadmissible because he was available to testify. Moreover, although the fact that Sellars confessed to a capital crime is certainly strong indication that he was to that extent telling the truth, it must be borne in mind that his confession was given in a custodial environment. And while confessing, he implicated Hoover as the mastermind, perhaps hoping for a bargain approaching that accorded to Spivey— complete immunity in exchange for his testimony against Hoover.
. See discussion, supra at pp.. 548-550 & Appendix A.
. Although the Court in Bruton emphasized that it was not faced with a challenge to any well-established exception to the hearsay rule, its denunciation of the efficacy of a limiting- instruction nonetheless bears on this case with equal force. We are looking at the effect of the testimony on the minds of the jurors, and they are no less prejudiced because some rule of evidence is at issue. Furthermore, under the Texas rule any direct references to the alleged accomplice are inadmissible. (They can be heard if to delete them would render the remainder of the confession unintelligible, but they are nonetheless inadmissible.) Thus it could be said that there is no well-established exception to the hearsay rule at issue in this case since the references to Hoover contained in Sellars’ confession were not actually admissible into evidence.
Furthermore, as the Texas high court has said of Bruton’s application to the very rule here under scrutiny: “The reliance * * * upon [a] jury instruction [s] to remove the harmful effect is the same reliance utilized in the now overruled [by Bruton] Delli Paoli case.” Schepps supra, 432 S.W.2d at 941 (three of five justices concurring).
. Indeed the Court noted “the impossibility of determining whether in fact the jury did or did not ignore” the objectionable testimony. 301 T.N. at 13G, 88 S.Ct. at 1G2S.
. And in Schepps v. State, Tex.Cr.App. 1968, 432 S.W.2d 926 (three of five justices concurring), the Texas court overruled its prior position adopting the stated view of Bruton. See discussion, supra, notes 29, 32.
. To similar effect see the remarks of Mr. Justice Marshall in his dissent to Dutton, supra, 400 U.S. at 102 n. 4, 91 S.Ct. at 226: “ [I] t remains that the duty to confront a criminal defendant with the witnesses against him falls upon the State, and here the State was allowed *561to introduce damaging evidence without running the risks of trial confrontation.” (Emphasis in original.) And see Barber v. Page, supra, where the State was required to make a good faith effort to produce the declarant before the Court would admit hearsay evidence of the declarant’s prior statement,
. See discussion, supra at 555.
. “He testified that the largest stone was a round cut, fine white diamond weighing 4 carats and 83 points and looked the same as a round cut, fine white diamond he had previously mounted for Mr. Schepps; and that the smaller stone introduced in evidence was an omerald cut diamond weighing 2 carats and 70 points and was similar to an emerald cut diamond of that identical weight in a pendant on which he had previously done work for Mrs. Schepps.”
Panel opinion, 439 F.2d at 921.
. Of course the jury was instructed not to consider the references to Hoover contained in Sellars’ confession. Yet in light of Bruton and iáchepps, supra, this Court is not justified in believing that they followed the instruction.
. To hold that the constitutional violations in this case were harmless error would do great harm to the jurisprudence. The words of the Supreme Court in Bumper v. North Carolina, 1968, 391 U.S. 543, 550 n. 16, 88 S.Ct. 1788, 1793, 20 L.Ed.2d 797 bear repeating:
“This suggestion [that the error was harmless] seems to rest on the ‘horrible’ facts of the case, and the assumption that the petitioner was guilty. But it is not the function of this Court to determine innocence or guilt, much less to apply our own subjective notions of justice. Our duty is to uphold the Constitution of the United States.”