¶1(concurring specially)-
¶2I join in the majority opinion except for that portion that holds that the statement made to Mr. Kean by Vernon Bellecourt was properly admitted under the co-conspirator exception to the hearsay rule.
¶3The relevant portion of Mr. Kean’s testimony reads as follows:
“At that time when Mr. Bellecourt was leaning on the door he stated — he said, ‘You sure had a nice Courthouse here.’ He said, ‘But it’s all your fault that it was wrecked.’ He said, ‘We did the same thing in Custer; we did it here.’ He said, *560‘one of these days — ’ he said — ‘we’ll,’ or ‘The Indians will own this Courthouse or all of South Dakota.’ ”
¶4With respect to Rule 801(d)(2)(E) of the Federal Rules of Evidence, Professor Wein-stein has written that:
“The adoption of Rule 801(d)(2)(E) and the rejection of the Model Code-Uniform Rule approach should be viewed as mandating a construction of the ‘in furtherance’ requirement protective of defendants, particularly since the Advisory Committee was concerned lest relaxation of this standard lead to the admission of less reliable evidence. Narrative declarations should not be admitted as a matter of course and statements of confession should be carefully scrutinized. Since prejudice is likely, the harmless error rule should seldom be relied upon by the trial judge. Whether a particular statement tends to advance the objectives of the conspiracy can only be determined by examination of the context in which it is made.” 4 Weinstein’s Evidence 801-147 (footnotes omitted).
¶5The broad interpretation espoused by the majority opinion seems to me to read the “in furtherance” requirement out of the rule. Accordingly, I would hold that the trial court erred in admitting the statement in question. I would also hold, however, that the admission of the statement was harmless error. The statement did not inculpate either of the defendants by name or by implication. Moreover, defendants were charged with having participated in a riotous assembly for the purpose of obstructing public officers in the performance of their legal duty, a charge on which the statement in question had little, if any, probative value. Finally, the evidence concerning defendants’ participation in the attack upon the police officers in the courtroom was so substantial that the statement in question cannot be viewed as material to the proof of the state’s case. See United States v. Harris, 8 Cir., 546 F.2d 234.
¶6I am authorized to state that Justice Porter joins in this special concurrence.