(concurring and dissenting):

My Brother Renfrew, in his customary way, has written a scholarly and thoughtful opinion in this sad and difficult case. I concur in the affirmance of Pheaster’s conviction on the substantive charges, none of which involved kidnapping per se, but I must respectfully dissent from the majority’s affirmance of Inciso’s conviction on the charge of conspiracy. 1 Viewing all the evidence in the light most favorable to the prosecution, as I must, I am absolutely convinced that the evidence is insufficient either to support his conviction or to establish beyond a reasonable doubt that the victim was transported in interstate commerce. Such transportation is, of course, an indispensable element of the crime. And as to that issue, I simply cannot agree that there was “substantial corroborative evidence” that the victim, Larry Adell, was “moved out of the Los Angeles area to Las Vegas.” Standing alone, Pheaster’s initial comment to the police, which he subsequently changed at least twice, that Adell was being held in Las Vegas, Nevada, is not adequate. Opper v. United States, 348 U.S. 84 , 75 S.Ct. 158 , 99 L.Ed. 101 (1954). The sighting of Adell in Apple Valley, California, by a witness, adds nothing. Thus, the question is whether Pheaster’s statement is sufficiently corroborated by the testimony of two of Adell’s school friends that each saw Adell at different times, apparently under no restraint, in gambling casinos in Las Vegas around July 4, 1974. In both cases, the sightings were very brief, at a distance, and in profile. One of the witnesses even admitted that she was not sure the person she had seen was, in fact, Adell. This testimony, as I see it, does not rise to the necessary level of “substantial independent evidence which would tend to establish the trustworthiness of the statement.” Op-per, supra at 93, 75 S.Ct. at 164 . Assuming its trustworthiness, however, it does not negate, beyond a reasonable doubt, the possibility that Adell went to Las Vegas alone and without coercion. The evidence is simply too tenuous to prove with the requisite *385 degree of certainty the essential element of interstate transportation.

In respect to Inciso’s participation in the kidnapping conspiracy, there is no doubt that Adell’s hearsay statement that the latter was going to meet “Angelo” was the strongest evidence linking Inciso to the conspiracy. The statement was obviously relevant to Adell’s state of mind and his future intent. But it was also highly prejudicial to Inciso. Adell’s statement could not be admitted without the attendant and substantial risk that, despite the judge’s limiting instruction, the jury would rely on the statement to prove not only the act of Adell, but also those of Inciso.

I am obligated by the almost century-old precedent of Mutual Life Insurance Co. v. Hillmon, 145 U.S. 285 , 12 S.Ct. 909 (1892) to concur in the majority’s decision that the trial court did not commit reversible error in admitting Adell’s alleged statement. Nevertheless, while my Brother Renfrew is doubtless correct that a majority of courts have adhered to the so-called Hillmon doctrine, 2 it is also true that the holding has been subjected to severe criticism by some of our Nation’s most distinguished judicial scholars. I am impelled, therefore, strongly to emphasize my own agreement with the views of Mr. Justice Cardozo in Shepard v. United States, 290 U.S. 96 , 54 S.Ct. 22 , 78 L.Ed. 196 (1933) and Chief Justice Traynor in his dissenting opinion in People v. Alcalde, 24 Cal.2d 177 , 148 P.2d 627 (1944). As Justice Traynor wrote, “A declaration as to what one person intended to do . cannot safely be accepted as evidence of what another probably did.” Id. at 189 , 148 P.2d at 633 . The fact that the members of the House Judiciary Committee specifically noted their intent to limit the Hillmon doctrine in Rule 803(3) of the new Federal Rules of Evidence indicates that the sound criticisms voiced by those two eminent members of the judiciary, as well as other legal scholars, 3 are now widely believed to be valid.

. I also dissent from the affirmance of Pheaster’s conviction on the charge of conspiracy because I believe that the evidence was insufficient to establish interstate transportation of the victim. However, since the Government’s counsel stated, during oral argument, that Pheaster will be eligible for parole in 15 years under both his life sentence for conspiracy and his 70-year sentence for the substantive crimes, I would apply the concurrent sentence rule in his case.

. See note 18 supra.

. See Maguire, The Hillmon Case — Thirty- Three Years Atter, 38 Harv.L.Rev. 709 (1925); Seligman, An Exception to the Hearsay Rule, 26 Harv.L.Rev. 146 (1912).