Green

I dissent.

The trial court found “that no other conclusion could ¡logically be reached by the jury in this ease. The evidence was overwhelming. ’ ’ The. District Court of Appeal held that the error committed in permitting the tape recording, to be played was inconsequential. Upon reviewing the record and the evidence, I reach the same conclusions.

It is my opinion that the judgment should be affirmed under the provisions of ’article VI, section 4%, of the California Constitution.

McComb, J., and Burke, J., concurred.

A jury found defendant guilty of selling heroin in violation of section 11501 of the Health and Safety Code. After finding that defendant had previously been convicted of three felonies, the trial court sentenced him to state prison, the sentence to run concurrently with the sentence for which defendant was then on parole. Defendant appeals from the judgment.

The single issue which concerns us involves the admission into evidence of the incriminating statements which defendant gave to the police. The record fails to indicate that, prior to his utterance of the statements which occurred during the accusatory stage, defendant had been advised of his rights to an attorney and to remain silent or that he had otherwise waived those rights. We have decided that the erroneous admission of the statements caused prejudicial error.

The facts may be briefly stated. Officer Toles, an undercover officer of the narcotics division of the Los Angeles Police Department, testified that on April 10, 1962, while accompanied by an informant, he purchased and received from defendant three containers of heroin. On May 23, 1962, the grand jury of the County of Los Angeles indicted defendant, *563…