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02/26/76 PEOPLE v. OSTER

February 26, 1976

PEOPLE
v.
OSTER



Appeal from Oakland, John N. O'Brien, J.

Leave to appeal applied for.

N. J. Kaufman, P. J., and T. M. Burns and M. F. Cavanagh, JJ. Judge Kaufman, not participating.

SYLLABUS BY THE COURT

1. -- Preliminary Examination -- Proof of Offense -- Proof of Guilt -- Elements of Crime -- Premeditation -- Homicide -- First-Degree Murder.

The prosecutor must show, at a preliminary examination, that the offense charged has been committed; while positive proof of guilt is not required, there must be evidence on each element of the crime charged or evidence from which those elements may be inferred, including premeditation where the charge is first-degree murder.

2. -- Preliminary Examination -- Magistrate -- Elements of Crime -- Evidence -- Abuse of Discretion -- Appeal and Error.

A magistrate's determination, at a preliminary examination, that the necessary elements of the crime charged are supported by the evidence will not be upset on appeal unless clear abuse of discretion is demonstrated.

3. -- Preliminary Examination -- Magistrate -- Evidence -- Reasonable Doubt -- Jury Questions.

It is not the function of the examining magistrate to carefully weigh the evidence and discharge the accused when the evidence conflicts or raises a reasonable doubt of guilt; such questions should be left to the jury.

4. Homicide -- Second-Degree Murder -- Malice -- Deadly Weapons.

The malice necessary to bind a defendant over on a charge of second-degree murder may be presumed from the use of a deadly weapon to perpetrate the killing.

5. -- Malice -- Provocation -- Magistrate -- Trial Judge -- Jury Questions.

A determination whether an inference of malice was negated by provocation is one to be made by the trial Judge and jury, not by an examining magistrate.

6. Homicide -- First-Degree Murder -- Premeditation -- Inferences.

Premeditation can be inferred from various kinds of evidence, such as the relationship between the parties, whether the murder weapon had been acquired or positioned in preparation for the homicide, the immediate circumstances of the killing, and the defendant's post-homicide conduct.

7. Homicide -- First-Degree Murder -- Elements of Crime -- Evidence -- Premeditation -- Deliberation.

Evidence sufficient to sustain a finding of premeditation and deliberation falls into three basic categories: (1) evidence which shows that the defendant had been engaged in planning the killing, (2) evidence establishing a motive for the killing, and (3) evidence that the nature of the killing was such that the defendant must have intentionally killed according to a preconceived design to take his victim's life in a particular way.

8. Homicide -- First-Degree Murder -- Premeditation -- Deliberation -- Magistrate.

A magistrate's finding of premeditation or deliberation was clearly erroneous where there was no evidence of planning or motivation; no inference of premeditation was raised by the fact that a knife was used and that wounds were inflicted upon vital parts of the body; the fact that defendant cleaned the knife soon after the stabbing does not suggest that there was a plan or scheme to kill; premeditation is not suggested by the fact that a defendant was carrying a knife where evidence was presented ...


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