Sylvester

I concur in the judgment, but do not agree with the majority’s conclusion that Sylvester’s statements at the time of his arrest were inadmissible evidence because the accusatory stage had already been reached. In my view, the case at the time was still in the investigatory phase, as defined in People v. Cotter, 63 Cal.2d 386, 393-398 [ 46 Cal.Rptr. 622 , 405 P.2d 862 ], and People v. Stewart, 62 Cal.2d 571 [ 43 Cal.Rptr. 201 , 400 P.2d 97 ], and the police were not foreclosed from free communication with the suspect.

A petition for a rehearing was denied April 5, 1966.

Appellant was charged by information with selling heroin in violation of Health and Safety Code, section 11501. After a jury trial, appellant was found guilty and sentenced to the state prison. The appeal is from that judgment.

At the time of his conviction, appellant was serving probation on a prior conviction. Probation was revoked after the above judgment and appellant was sentenced to one year in county jail on the offense in respect of which he had been granted probation. Both sentences were to run concurrently. The appeal from the order revoking probation has been abandoned.

On September 20, 1961, one Roy Singh was hitchhiking along Reseda Boulevard in Reseda, California. Appellant stopped and picked him up. There was conversation concerning narcotics and appellant offered to sell Singh heroin.

On the morning of September 21, 1961, Singh volunteered his services to the Los Angeles Police Department. At approxi *48 mately 10 a.m., Singh called appellant from the central jail and in the presence of several police officers, told appellant that he (Singh) had a friend who wished to purchase a “half a piece” of heroin. Appellant stated that “he was ready, that everything was…