Appeal from Cheboygan, Joseph P. Swallow, J.
Leave to appeal applied for.
N. J. Kaufman, P. J., and R. B. Burns and G. R. Deneweth,* JJ. N. J. Kaufman, P. J., concurs in result only.
1. -- Preliminary Examination -- Binding Over -- Dismissal.
The prosecution must establish two things at a preliminary examination in order to bind a defendant over for trial: (1) that the crime with which the defendant has been charged was in fact committed, and (2) that there is reasonable cause to believe that the defendant committed that crime; absent either element being established, the charges against the defendant must be dismissed at the preliminary examination stage.
2. Homicide -- First-Degree Murder -- Open Charge of Murder -- Binding Over -- Preliminary Examination -- Premeditation -- Deliberation.
A defendant may be bound over to circuit court on an open charge of murder and brought to trial on an information charging first-degree murder although testimony at a preliminary examination fails to show premeditation and deliberation.
3. Homicide -- Preliminary Examination -- Magistrates -- Degree of Murder -- Jury Questions.
An examining magistrate, at the time of a preliminary examination on a murder charge, is not required to determine the degree of murder; the question of the degree of murder is for the trier of the facts.
4. -- Miranda Warnings -- Focus of Investigation -- Exclusion of Evidence -- Exculpatory Statements -- Appeal and Error.
An investigation had focused upon a defendant, for purposes of the Miranda doctrine, where at the time an investigating police officer arrived at the murder scene the officer knew that the mobile home in which the homicide occurred belonged to the defendant and the officer was there in response to a call from the defendant in which the defendant stated that she had shot the decedent and the officer observed no one else at the murder scene upon his arrival; therefore, the officer's query of "what happened?" without first complying with the Miranda requirements mandates exclusion of the defendant's reply, and it was reversible error to admit evidence of the defendant's statement, even though the statement was exculpatory.
5. -- Closing Arguments -- Appeal and Error.
Allowing a prosecutor, during closing argument in a murder trial, over defense counsel's objection, to refer to the alleged fact that the defendant was living out of wedlock with the decedent at the time of the homicide and to characterize this liaison as ...