The opinion
*27 McCOMB, J.
I dissent. I would affirm the judgment for the reasons expressed by Justice Lillie in the opinion prepared by her for the Court of Appeal, which opinion reads, as follows:
A jury found defendant guilty of possession of marijuana (§ 11530, Health & Saf. Code) (count II); inasmuch as it was unable to reach a verdict on count I (possession of heroin [§ 11500, Health & Saf. Code]), the same was dismissed. While defendant’s notice of appeal states only that he “will appeal” his case, we construe the same to be a notice of appeal from the judgment based on the jury verdict.
Around 3 a.m. on August 24, 1964, Deputies Dunlop and Winter went to a Powerine station in response to a telephone call from the attendant that three persons in an automobile refused to leave the premises. When the deputies arrived they observed on the gas station lot a 1954 Mercury with the hood up. Defendant was standing to the front left side of the vehicle, a man was next to him, and a third was under the car. Defendant and the man in front were shouting down into the motor compartment. Deputy Winter asked them for identification ; the man went with Winter to the right side of the car while defendant remained in front. At this time Deputy Dunlop saw defendant “pat his rear hip pocket, and then take something out of his right trouser pocket”; defendant then “moved to the right side of the vehicle, leaned over the right fender of the vehicle, . . . and appeared to either place or pass this small bundle, white bundle, down into the motor.” The bundle was round, approximately two inches in diameter, and looked “like a small bundle of white—could be paper, just rolled up.” The third man was still under the car when the bundle was passed down. Immediately defendant and his companion were ordered away from the vehicle. The motor compartment of the vehicle was searched and after two or three minutes Deputy Boot (who had arrived with his partner at the scene) found the package (a paper towel wrapped packet bound with a rubber band containing heroin and marijuana) ; within a few minutes thereafter defendant and his two companions were arrested.
Appellant raises two issues—the legality of the search of the vehicle; and the admissibility of his confession.
Upon their arrival at the gasoline station, the deputies knew of the attendant’s complaint that .several times lie had asked defendant and his two companions to leave and they had refused to do so; they had the right, indeed the duty, to *28 question the three persons. (People v. Blodgett, 46 Cal.2d 114, 117 [ 293 P.2d 57 ] ; People v. Shelton, 60 Cal.2d 740, 741 [ 36 Cal.Rptr. 433 , 388 P.2d 665 ] ; People v. Michael, 45 Cal.2d 751, 754 [ 290 P.2d 852 ] ; People v. Simon, 45 Cal.2d 645, 650 [ 290 P.2d 531 ].) While the one deputy was attempting to determine the identity of one of the men, the other deputy observed defendant take something out of his trouser pocket, move to the right of the vehicle, lean over the right fender and drop a small round white bundle down into the motor. Inasmuch as the deputies knew that defendant had refused to leave the premises upon request and saw his furtive and suspicious conduct, they had reasonable cause to believe that he was hiding contraband (People v. Fitch, 189 Cal.App.2d 398, 403 [ 11 Cal.Rptr. 273 ] ; People v. Blodgett, 46 Cal.2d 114, 117 [ 293 P.2d 57 ] ; People v. Robles, 183 Cal.App.2d 212, 215 [ 6 Cal.Rptr. 748 ] ; People v. Amado, 167 Cal.App.2d 345, 347 [ 334 P.2d 254 ]) ; thus, the search of the engine compartment was reasonable. (People v. Blodgett, 46 Cal.2d 114, 117 [ 293 P.2d 57 ] ; People v. Quong, 189 Cal.App.2d 318, 319 [ 11 Cal.Rptr. 170 ].) A search without a warrant lawfully may be conducted if reasonable and incident to a lawful arrest. (Ker v. California, 374 U.S. 23, 41 [ 10 L.Ed.2d 726 , 83 S.Ct. 1023 ]; People v. Dickenson, 210 Cal.App.2d 127, 135 [ 26 Cal.Rptr. 601 ].) There is no issue herein relative to the validity of the arrest. While it is true that the search was made prior to arrest, “Where an arrest is lawful the search incident thereto is not unlawful merely because it precedes rather than follows the arrest. ...” (People v. Ingle, 53 Cal.2d 407, 413 [ 2 Cal.Rptr. 14 , 348 P.2d 577 ] ; People v. Duroncelay, 48 Cal.2d 766, 771 [ 312 P.2d 690 ] ; People v. Simon, 45 Cal.2d 645, 648 [ 290 P.2d 531 ].)
Appellant contends that his confession was inadmissible because he was not advised of his constitutional rights to counsel and to remain silent.
Deputy Berman, assigned to Headquarters Detective Bureau, Narcotics Detail, was one of the investigating officers. He was in the process of trying to determine to which of the three the contraband belonged and, in the course of his investigation, talked to defendant. The conversation took place around noon on August 24, 1964, at the Sheriff’s Station; defendant’s statements were freely and voluntarily given. Berman asked the defendant how he came to be in the company of Ferguson and Calder; he said that he had been drinking at a bar, asked Ferguson for a ride home and on the way engine trouble developed and they stopped at the Powerine station. Asked what happened at the gasoline station when the deputies arrived, defendant replied that they asked for identification but he had none; asked why he walked to the right front of the motor and leaned over, defendant answered, “I just wanted to warn Duke, Mr. Ferguson, that the heat was here. ’' Deputy Berman, assigned to Headquarters Detective Bureau, Narcotics Detail, was one of the investigating officers. He was in the process of trying to determine to which of the three the contraband belonged and, in the course of his investigation, talked to defendant. The conversation took place around noon on August 24, 1964, at the Sheriff’s Station; defendant’s statements were freely and voluntarily given. Berman asked the defendant how he came to be in the company of Ferguson and Calder; he said that he had been drinking at a bar, asked Ferguson for a ride home and on the *29 way engine trouble developed and they stopped at the Powerine station. Asked what happened at the gasoline station when the deputies arrived, defendant replied that they asked for identification but he had none; asked why he walked to the right front of the motor and leaned over, defendant answered, “I just wanted to warn Duke, Mr. Ferguson, that the heat was here. ’5 Deputy Berman then showed defendant the package containing the contraband; defendant said that “he had never seen the evidence prior to it being displayed to him by the officers at the scene. ’ ’
Thus, the deputy continued his investigation not yet knowing to whom the contraband belonged; in the process he talked several times to Ferguson and Calder. Then the next day (August 25) around 6 :15 p.m. he had a second conversation with defendant; defendant’s statements were freely and voluntarily made. The officer told him that he had conversed with his two companions twice and in his “mind ... he was the individual who possessed the evidence,” he asked him “if he would like to make a statement. ’ ’ Defendant said, ' ‘ I want to say something but I can’t,” whereupon the deputy said," can understand your position, ’ ’ and if he was in the same position he wouldn’t say anything either. However, he told defendant that he thought it was not right, if he was the owner of the marijuana and heroin, to allow his two companions to go to jail for the crime, and explained at length why he believed the narcotics belonged to him. He discussed the results of his investigation up to that point which, he said, showed the position and movements of Ferguson and Calder which eliminated them as the owners of the narcotics. Then he asked defendant “once again if he wanted to make a statement,” whereupon defendant told him in narrative form what had occurred before his arrest—that one Morgan had approached him while he was drinking in a bar and said, “ ‘Hold this for me,’ and handed him, ... a package wrapping, a paper towel, ’ ’ and said, ‘ ‘ The police are outside. I am going to get rousted”; he looked at the package and asked Morgan what was in it; Morgan told him “weed and pills”; he thought a while and when he looked up Morgan had disappeared ; he put the package in his pocket and forgot about it ; he wouldn’t have accepted it if “he hadn’t been intoxicated” and when the officers arrived at the gas station he recalled having the package at which time'he secreted it in the motor: Defendant denied' knowledge of any heroin in' the package:
*30 Immediately thereafter Deputy Berman asked defendant if he wanted to write or sign a statement regarding the conversation; defendant said he would, at which time Berman dictated a statement pertaining to the conversation to a secretary. Concerning the writing, Deputy Berman testified, ‘ ‘ This is the statement that I dictated regarding the conversation between defendant and myself at approximately 6 p.m., August 25, 1964.” It was read and signed by defendant.
While defendant was in custody, the accusatory stage had not yet been reached; the officer was still in the process of investigating the matter for he did not know to whom the narcotic belonged. In any event, in the first conversation defendant made no damaging admissions or confessions; he made only a denial which, if believed by the jury, could have resulted in an acquittal.
The voluntary statement made by defendant in the second conversation was also made during the investigatory state; moreover, it was not the result of any process of interrogations which lent itself to eliciting incriminating statements. (Escobedo v. Illinois, 378 U.S. 478 [ 12 L.Ed.2d 977 , 84 S.Ct. 1758 ] ; People v. Dorado, 62 Cal.2d 338 [ 42 Cal.Rptr. 169 , 398 P.2d 361 ].) The deputy still did not know to whom the contraband belonged; he had once before talked to defendant and twice to Ferguson and Calder, each denying knowledge of the narcotic. However, from all he had learned from Ferguson and Calder he concluded that defendant must have had the narcotic, and told him so. Clearly, the deputy was still investigating the ease; and at this stage he gave defendant an opportunity to tell his version of what occurred. In effect, defendant declined; the deputy then explained the results of his investigation up to that time which pointed to defendant’s connection with the narcotics. He asked defendant, “once more if he wanted to make a statement.” The deputy’s statement was not accusatory, nor did it constitute a specific inquiry; the deputy simply asked him if he wanted to say anything. This is even more general than the questions asked by the FBI agents of defendants after their arrest in United States v. Konigsberg (3d Cir. 1964) 336 F.2d 844 ; and by the officers of defendant in the police car after his apprehension in People v. Cotter, 63 Cal.2d 386, 390 [ 46 Cal.Rptr. 622 , 405 P.2d 862 ], The purpose of the general question was not to elicit a confession but to give defendant a chance to tell his side of the story if he wished to do so. He was affording him an opportunity which police officers normally and routinely offer to any person whom they are taking or have taken into *31 custody to give any explanation of his conduct he may desire to give. (People v. Justiniano, 236 Cal.App.2d 542, 544-546 [ 46 Cal.Rptr. 335 ] ; People v. Luckman, 235 Cal.App.2d 75, 78 [ 45 Cal.Rptr. 41 ] ; People v. Ford, 234 Cal.App.2d 480, 490 [ 44 Cal.Rptr. 556 ] ; People v. Collin, 232 Cal.App.2d 681, 684 [ 43 Cal.Rptr. 57 ] ; People v. Cully, 236 Cal.App.2d 769, 773 [ 46 Cal.Rptr. 644 ] ; People v. Jones, 237 Cal.App.2d 499, 504 [ 47 Cal.Rptr. 40 ] ; People v. Cotter, 63 Cal.2d 386, 393 [ 46 Cal.Rptr. 622 , 405 P.2d 862 ] ; United States v. Konigsberg, 336 F.2d 844, 853 .) Defendant volunteered his complicity in the narcotics activity; however had he been able to convince the deputy that lie knew nothing about the contraband or had he given a legitimate explanation establishing his innocence, he would have been released. Only when his story did not convince the deputy that he knew nothing of the narcotics, was the accusatory stage reached. The deputy was trying to find out what had occurred, and he was entitled to ask questions even though defendant was in custody and a suspect. (People v. Dorado, 62 Cal.2d 338, 354 [ 42 Cal.Rptr. 169 , 398 P.2d 361 ] ; People v. Ford, 234 Cal.App.2d 480, 494 [ 44 Cal.Rptr. 556 ].) The inquiry we hold to be a factual questioning of a suspect in furtherance of an investigation, and admissible.
Immediately after defendant volunteered his statement he was asked if he would sign the same reduced to writing, which he did; by this time the accusatory stage had been reached and the written statement was inadmissible. However, it. contains no more than that which defendant made orally; it is cumulative, merely duplicating and reiterating the earlier statement lawfully obtained (People v. Ford, 234 Cal.App.2d 480, 494 [ 44 Cal.Rptr. 556 ]), and its admission does not require automatic reversal. (People v. Washington, 237 Cal.App.2d 59, 65 [ 46 Cal.Rptr. 545 ] ; People v. Cully, 236 Cal.App.2d 769, 778 [ 46 Cal.Rptr. 644 ] ; People v. Sheridan, 236 Cal.App.2d 667, 671 [ 46 Cal.Rptr. 295 ].) When viewed in the light of the overwhelming evidence of guilt, the written statement appears to have had but little significance and could not have resulted in prejudice to defendant. We conclude that there is no reasonable probability that the jury would have reached a result more favorable to defendant had the written statement been excluded. (Cal. Const., art. VI, §4%; People v. Jacobson, 63 Cal.2d 319, 330-331 [ 46 Cal.Rptr. 515 , 405 P.2d 555 ] ; People v. Cotter, 63 Cal.2d 386, 398 [ 46 Cal.Rptr. 622 , 405 P.2d 862 ].)