Rand

I dissent because I cannot agree that defendant is entitled to reversal on account of evidence which he himself put before the court.

The record shows that when the ease was called for trial on October 17, 1960, a trial by jury was waived. Defendant, being represented by counsel, joined with the People in the following stipulation which was stated by the district attorney :

The transcript of the preliminary hearing shows that defense counsel there requested the municipal court to strike the officer’s testimony relating to defendant’s admissions, and that this motion was denied by the judge presiding at the preliminary. No objection to the admissibility of that testimony was made at the trial, no motion to strike any of it was made, and there is no suggestion that defendant did not desire the court to consider all of it.

Trial was continued to November 7. On that day the court announced that he had read the preliminary transcript.

The exhibits (i.e., the marijuana found in defendant’s apartment) were received in evidence. Defendant then testified on his own behalf. He described the conversation with *676 the officers after the marijuana was found in his bedroom. He said that he…

By an information the defendant was accused of the crime of possession of marijuana in violation of section 11530 of the Health and Safety Code. He waived his right to trial by jury. It was stipulated that the case would be submitted on the evidence received at the time of the preliminary hearing, with the right reserved to the People and the defendant to offer additional evidence. The defendant was found guilty as charged. He has appealed from the judgment.

While the defendant presents a number of contentions, it is only necessary to discuss one since it is determinative of this appeal. That contention is that the court erred in receiving in evidence a statement made by the defendant at the place of his arrest because such statement was not voluntary.

Only two witnesses testified, Deputy Sheriff Tizenor and the defendant. By stipulation, the necessity for the testimony of a forensic chemist as to the narcotic nature of the articles hereinafter mentioned was dispensed with. A résumé of the pertinent testimony will be given.

On May 24, 1960, Officer Tizenor, together with four other officers, had the apartment building where the defendant resided under observation for about two…