Mercer

I reluctantly concur on the authority of Gomez v. Superior Court, 50 Cal.2d 640 [ 328 P.2d 976 ]. While I agree that the judgment must be reversed, I do not agree that the defendant should be acquitted as a matter of law as a result of double jeopardy. In the instant case, in addition to the defendant’s statement, there is the circumstantial evidence of the victim’s wallet which the police discovered after the offense, and the fact that the defendant first told conflicting stories about the wallet, but finally admitted he had removed the wallet from the body and thrown it from the car window to prevent anyone from connecting him with the *163 decedent. While the prosecution is bound by the defendant’s statement, the jury, as the trier of fact, is not, as it may accept or reject the defendant’s statement as a whole or in part. If the jury completely rejected the defendant’s statement and concluded on the basis of the evidence relating to robbing the decedent of his wallet, and the shooting and killing of the decedent, the result would have to be murder in the first degree (Pen. Code, § 189); if the jury accepted the defendant’s statement as a whole, the result would have to be…

Defendant Charles Mercer appeals from a conviction of murder in the second degree.

Early in the morning of May 9, 1961, defendant Mercer, an ex-Marine employed as a Fuller Brush salesman, walked into the sheriff's office in Salinas, California, and stated that he had killed a man. He told where the body was located and accompanied several officers to the scene. At the site, the officers found an expended bullet in the center of a large bloodstain on the nearby roadway. A trail of blood, bent grass and weeds led to a point about 29 feet north of the bloodstain, where lay the body of a man subsequently identified as Frank Barrios, who had been shot once in the heart and once in the head. Laboratory examination developed the deceased had a blood-alcohol level of .240, which is ordinarily indicative of a high state of intoxication. Death was caused by the bullet which passed through his heart.

While still at the scene (the intersection of the Boronda and Castroville highways) defendant Mercer gave the sheriff's officers a statement, which was tape-recorded and subsequently played at the trial. The defendant stated that at 7 or 8 p. m. on the preceding evening, he had…

Defendant Charles Mercer appeals from a conviction of murder in the second degree.

Early in the morning of May 9, 1961, defendant Mercer, an ex-Marine employed as a Puller Brush salesman, walked into the sheriff’s office in Salinas, California, and stated that he had killed a man. He told where the body was located and accompanied several officers to the scene. At the site, the officers found an expended bullet in the center of a large *155 bloodstain on the nearby roadway. A trail of blood, bent grass and weeds led to a point about 29 feet north of the bloodstain, where lay the body of a man subsequently identified as Frank Barrios, who had been shot once in the heart and once in the head. Laboratory examination developed the deceased had a blood-alcohol level of .240, which is ordinarily indicative of a high state of intoxication. Death was caused by the bullet which passed through his heart.

While still at the scene (the intersection of the Bor onda and Oastroville highways) defendant Mercer gave the sheriff’s officers a statement, which was tape-recorded and subsequently played at the trial. The defendant stated that at 7 or 8 p. m. on the preceding evening, he had stopped…