Appeal from Delta, Bernard H. Davidson, J.
Leave to appeal denied, 397 Mich 830.
Danhof, P. J., and D. E. Holbrook and Allen, JJ.
1. Homicide -- Felony Murder -- Larceny -- Larceny of Any Kind -- Automobiles -- Statutes -- Unlawful Taking of Automobile.
The felony of unlawfully driving away a motor vehicle is not "larceny of any kind" pursuant to the felony murder statute because larceny requires proof of an intent to permanently deprive an owner of his property, while unlawfully driving away a motor vehicle does not (MCLA 750.316, 750.413; MSA 28.548, 28.645).
2. Statutes -- Penal Statutes -- Construction.
Penal statutes are to be strictly construed.
3. -- Preliminary Examination -- Charged Offenses -- Probable Cause.
The prosecution, at a preliminary examination, need show only that the charged offense was committed and that there was probable cause that the defendant committed it in order to bind the defendant over for trial.
4. -- Preliminary Examination -- Binding Defendant Over -- Elements -- Intent -- Inferred Intent.
There must be evidence presented at a preliminary examination on each element of a crime charged or evidence from which those elements may be inferred in order to bind a defendant over for trial; however, an intent element may be inferred from the act itself.
5. -- Automobiles -- Unlawful Taking of Automobile -- Larceny -- Prosecutorial Discretion -- Intent to Steal.
The prosecution, in a case involving the unlawful taking of an automobile, has the discretion of charging a defendant with unlawfully driving away a motor vehicle in lieu of larceny so as to dispense with the need to prove intent to steal, where the prosecution believes that the evidence so warrants.
6. -- Preliminary Examination -- Automobiles -- Unlawful Taking of Automobile -- Felonious Intent.
Evidence presented at a preliminary examination supports the inference that whoever took an automobile did so with felonious intent to steal where there was evidence that an automobile was taken without the owner's consent and against his will, evidence of an asportation, evidence that shortly after the taking the driver of the stolen vehicle killed a police officer by running the officer's vehicle off the road during a chase, and evidence that the driver abandoned the vehicle after the event.
7. -- Preliminary Examination -- Examining Magistrate -- Conflicting Evidence -- Reasonable Doubt -- Jury Question.
It is not the function of an examining magistrate at a preliminary examination to carefully weigh the evidence and discharge an accused when the evidence conflicts or raises a reasonable doubt of guilt; such questions should be left to the jury.
8. -- Preliminary Examination -- Automobiles -- Unlawful Taking of Automobile -- Conflicting Testimony -- Intent -- Circumstantial Evidence.
A magistrate at a preliminary examination was not precluded from binding a defendant over on a charge of murder during the perpetration of a larceny where there was circumstantial evidence to support the inference that the requisite intent was present, although there was ...