concurring in part and dissenting in part.
The majority reverses the conviction of Louis Albert Smith on the ground that the confessions of the two should not have been admitted into evidence because the State did not refute his testimony that officers in Louisiana had beaten him and that he later confessed because of such alleged beatings. Neither appellant testified that the FBI, who took Louis Albert Smith’s confession, or the Texas Ranger, who took Donald Elliot Smith’s confession, beat them. Louis was arrested in New Orleans after his attorney called the FBI to surrender his client. A confession was not taken that day but several days later after his attorney called the FBI and asked that they take his *13statement, apparently because Louis wanted to clear up his eases. The two appellants were being held for several other robberies which had been committed in Mississippi and Louisiana. When Louis was questioned by the prosecutor about his lawyer who had been hired by his family, he refused to testify several times on the basis of the Fifth Amendment. During his trial in federal court in New Orleans, he withdrew his claim of a forced confession. The officers who allegedly beat the appellants were neither described nor named.
After Donald Smith had been arrested he was with officers in the woods in Louisiana trying to find the money taken from a Mississippi robbery that he had hidden there when, without questioning, he told an FBI agent about the robbery in Lockhart. He alleged that the Louisiana officers beat him before the confession was reduced to writing. He does not contend that the FBI or Ranger Joe Davis of the Texas Department of Public Safety mistreated him in any way.
None of the officers who were available to testify were accused of mistreatment, only those who were unnamed and unde-scribed in the other state. The voluntariness of the confession was not made an issue before the jury. The FBI agents who saw both appellants after the time of the alleged beatings saw no bruises or marks on either of them.
At the only hearing which was held before the judge when the confession of Donald was offered counsel stated:
“For the limited purpose of the hearing only, without making any admission as to the truth of any matters stated on the statement, we have no objection to its admission.”
The only purpose for the hearing before the judge was to get a determination of the voluntariness of the confession. However, assuming that enough evidence was not introduced by the State (there is much more than is set out herein) to overcome the testimony of appellants, and assuming the agreement to admit the confession is not enough to foreclose the issue, there was overwhelming evidence to make the admission of the confession harmless error beyond a reasonable doubt.
The indictments alleged that the money in the robbery was taken from Helen Franks. She, at the trial, identified both the appellants as the robbers. There was no lineup or picture display before the trial. She testified that the robbers were in the bank for some 25 or 26 minutes and it was well lighted and she had many opportunities to look at them.
The record reflects that at approximately 8:15 a. m. on the day in question appellants took Eddie Rangel, a custodian at the bank, with a gun at his head into the lobby and one of them said, “This is a holdup.” Donald shot at the camera with a shotgun. Louis moved all of the bookkeepers and tellers and other bank personnel into the lobby and threatened to kill everyone there and put the shotgun to Mr. Clark’s head and asked, “Who can get me the money out of the other vault?” He got the cashier and another woman and made them open the vault. He had them load the money in bags. He made one of the women lie down on the floor in the vault while he raped the other woman just next to her. He hit the woman he had raped on the head with a gun and closed the door to the inner vault. Then both appellants locked all of the employees of the bank in the vault, shot the lock off the back door taking some $86,000 and left.
Helen Franks was vice president and cashier of the Lockhart State Bank. In addition to the above, she stated that while they were in the inner vault Louis Smith made her and the other woman who was raped attempt to open the inner vault which had a dual combination which took two to open. The other woman had the first combination and Mrs. Franks had the other combination. Both tried their combinations but the door did not open. He cursed them. They tried a second time and it did not open. He threatened to kill them. The other woman said, “Please, sir, I got to have my glasses.” He let her go outside the vault to get her glasses. When she *14returned, and on the third try, the door opened. He handed them a yellow canvas bag to put the money in. He held his shotgun on them and Mrs. Franks could see a pistol in his belt. The other woman held the bag and Mrs. Franks loaded it with money. He found the drive-in cash boxes in the vault and put the cash from them in the sack. He then walked over and loaded some $400 in halves and quarters. He then set the bag by the door and asked what was in the next vault. He was not interested in it when he found that it contained abstracts.
The other woman in the vault had on a pants suit. He pulled her clothes down and said, “I want to see what a white Honky looks like.” He pulled her blouse open and buttons fell all over the floor. He pulled her bra down below her breasts and said, “On the floor, bitch!” She got on the floor “and he proceeded to rape Mrs._” While he was accomplishing this, he held the pistol to her head and when he finished he hit her on the head with the gun. She heard the two robbers putting the other employees in the outer vault and she heard three or possibly four shots.
Ida Piwetz, assistant vice president of the bank, testified that there were fourteen or fifteen employees of the bank present at the time of the robbery by the appellants. She identified appellants in the courtroom and described what kind of clothes each was wearing during the robbery. Donald Smith made the employees lie down on the floor. She heard the two women having trouble opening the vault and she next saw Louis Smith come out of the vault. He ordered all the other employees into the vault. Donald Smith went back into the teller area. As Louis was rounding up the group toward the vault, he grabbed Mrs. Piwetz’s left breast and played around with it. After they were all locked in the vault, they heard shots and the back door was shot out. These witnesses had more time than they wanted to become acquainted with appellants.
FBI Agent King recovered eleven hundred and eighty-five dollars from a safe deposit box of Donald Smith’s wife in New Orleans which was sent to FBI Agent Bruce Yarbrough in San Antonio. Agent Yarbrough testified that he investigated the bank robbery in Lockhart. Without detailing all of his testimony, he testified that he received the money that had been recovered by the agent in New Orleans. He looked through the money and found a $10.00 bill with the serial number K51590179A and produced it in court. Mrs. Franks was secretary of the board of directors of the bank and she testified that she paid the directors with new money from a bundle with the bills numbered serially with the largest number on top. The last director to be paid was with bill number K51590180A and the rest of the money in that bundle of new series of bills was in the cash vault on the day of the robbery. Therefore, one of the bills later found in the safe deposit box in New Orleans was in the vault when she was robbed.
Without considering the confession of either appellant, there is more than enough evidence to convict both appellants. Even if the confessions were not admissible under the proof offered, their introduction was harmless beyond a reasonable doubt. It is hard to conceive that a jury would not convict on this evidence. In Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969), in an opinion by Mr. Justice Douglas, the Supreme Court of the United States held that the introduction of the confession of co-defendants who did not testify and who were not subject to cross-examination was harmless error beyond a reasonable doubt because there was strong evidence against Harrington. He wrote:
“We, of course, do not know the jurors who sat. Our judgment must be based on our own reading of the record and what seems to us to have been the probable impact of the two confessions on the minds of an average jury.”
Under Harrington the introduction of each co-defendant’s confession against the other could be harmless error.
The majority’s holding that the introduction of a confession, if it has not been *15shown that it was legally taken, can never be harmless error and violates due process is contrary to the decision of the Supreme Court of the United States. Milton v. Wainwright, 407 U.S. 371, 92 S.Ct. 2174, 33 L.Ed.2d 1 (1972), held that error, if any, in admission of a post indictment, pre-trial confession obtained by a police officer who posed as a fellow prisoner confined in the cell with Milton was harmless beyond a reasonable doubt in view of the overwhelming evidence of his guilt. Chief Justice Burger, who wrote the opinion, cited Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), which is relied upon by the majority. He did not hold that this violated due process. Chapman was reversed on an argument that he failed to testify. He also cited Harrington v. California, supra, to support his holding of harmless error. To hold that it can never be harmless error to introduce a confession without fully proving testimony of a defendant about coercion would be to pass on cases before they get to the Court. That language is not necessary to the majority holding and is dictum. A defendant could claim that he was beaten by officers in another state and the State could bring in ten or more to refute his testimony. The accused could then testify that none of those present beat him but others did. Under the majority opinion, the State would have to bring in all of the officers who were on the force at the time of the alleged beatings.
Because there was no proper objection and because error, if any, was harmless beyond a reasonable doubt, both judgments should be affirmed.