Defendant was charged with open murder. MCLA 750.316; MSA 28.548, MCLA 750.317; MSA 28.549. On August 19, 1974, after a trial before the court, he was found guilty of voluntary manslaughter. Defendant was sentenced to 10 to 15 years in prison and appeals as of right.
Because of its bearing on the issues raised in this appеal, an extended relation of the evidence presented at the preliminary examination is required. The testimony indicated that defendant and Alan Goodman were present at a party at the home of the parents of Diane Cohn, dеfendant’s girl friend. It is undisputed that defendant stabbed Goodman during an altercation and that Goodman later died from the stab wounds.
Miss Cohn testified that before the fight occurred, she and defendant were preparing to leave the party. Defendant put his arm around her and she pushed him away. Witnessing this, Goodman told *494 defendant to leave her alone. Defendant informed Goodman, in effect, that it was all right because she was his girl friend. Miss Cohn also told Goodman that it was all right. At that point, Goodman pushed the defеndant and lunged at him.
Another witness testified that he saw the two men wrestling and pushing each other. He then saw Goodman throw defendant up a stairway, leaving defendant sprawled out on the stairs. Defendant then pulled a knife out of a pouch on his belt, leаped down on the stairs, and stabbed Goodman several times. The witness approximated that five seconds had elapsed between the time that Goodman had pushed defendant onto the stairway and the time that defendant stabbed Goodman. There were three stab wounds in Goodman’s chest and two in his back.
Another witness testified that although he did not see who started the fight, he did see that prior to the stabbing, Goodman hit defendant in the eye and that the eye began to bleed.
It appears from thе testimony that Goodman was a good sized young man standing over 6'5" in height and weighing 220 lbs.
After hearing the evidence, the magistrate found that the crime charged had been committed and that there was probable cause that defendant committed that crime. More specifically, he found that all the elements of open murder were present, that there was premeditation or malice aforethought and that there was no self-defense involved. The case was then ordered bound over tо circuit court on the open charge of murder. Defendant filed a motion to quash the information alleging in part that no proof of premeditation or deliberation was presented at the preliminary hearing and that the examining magistrate had thus abused his discre *495 tion in binding the case over on a charge of open murder, which included first-degree murder. This motion was denied.
Defendant then filed a written waiver of jury trial in which he stated that he was waiving such because of the erroneous denial of his motion to quash, which would force him to take a substantial risk that a jury, untrained in the law, would convict him of first-degree murder.
At the close of the people’s case at trial, the court dismissed the first-degree murder charge.
In this appeal of his voluntary mаnslaughter conviction defendant raises two issues, neither of which demonstrate reversible error in the courts below.
Did the examining magistrate abuse his discretion in binding defendant over to the circuit court for trial on an open charge of murder?
Defеndant argues that the prosecutor failed to prove at the preliminary examination that either first- or second-degree murder had been committed.
It is axiomatic that at the preliminary examination the prosecutor must show that the offense charged has been committed. While positive proof of guilt is not required,
People v Martinovich,
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It must be remembered that 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 his guilt; such questions should be left for the jury.
People v Medley,
Defendant’s argument that the inference of malice was negated by provocation is inapposite. That is not a question for the examining magistrate. Defendant would expand the function of magistrate to trial judge and jury. Binding defendant over on a second-degree murder charge would not have been a clear abuse of discretion.
Binding defendant over on first-degree murder is a neater question. Whether there was evidence presented at the preliminary examination from which an inference of premeditation and deliberation in the killing can be drawn is the essential inquiry. This particular thought process is not easily defined, but оur Supreme Court has phrased it in the following ways:
"[t]o think about beforehand
"[t]o measure and evaluate the major facets of a choice or problem
*497 "[a] thought process undisturbed by hot blood
* * *
"[t]he interval between initial thought and ultimate action should be long enough to afford a reasonable man timе to subject the nature of his response to a 'second look’.”
People v Vail,
Premeditation can be inferred from various kinds of evidence, such as the prior relationships 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.
People v Berthiaume,
Reviewing the evidence presented at the preliminary examination and weighing it against the above guidelines, we can only conclude that the magistratе’s finding of premeditation or deliberation was clearly erroneous. There was no evidence of planning or motive; indeed, it appears that defendant and Goodman were total strangers. The fact that a knife was used and that wounds were inflicted upon vital parts of the victim’s body do not raise an inference of premeditation.
People v Hoffmeister,
Probably the strongest argument of the prosecutor is that premeditation could be inferred from the evidence that defendant, while lying on thе stairs, made a conscious decision to murder the victim, produced the knife, opened it up, leaped upon the victim and stabbed him. It is extremely doubtful, however, that the inference could be drawn in this case. Five seconds may well be sufficient time for a "second look” during which one could premeditate murder, but we must view such lapse of time in light of the circumstances surrounding the killing.
People v Meier,
The prosecutor argues that even if erroneous, the decision constitutes harmless error. Although *499 defendant was bound over on a charge including first-degree murdеr, the trial judge reduced the charge to second-degree murder, and even though the record contains evidence which would support a second-degree murder conviction, defendant was found guilty only of manslaughter.
Defendant urges that the еrror was prejudicial because it forced him to waive his right to a jury trial. This argument implies that a jury could not be trusted to find him guilty only of crimes supported by the evidence while a judge could. Even if the trial had been before a jury, he asserts, and a directed verdict on the first-degree murder charge had been given, the stigma of the charge would have produced a compromise verdict.
While we believe defendant’s arguments to be sincere, they are completely unacceptable. 1
While it is a general rule that where the examining magistrate abused his discretion in binding a defendant over for trial, the conviction is to be reversed and the information quashed, those remedies appear to be proper only where the evidence was insufficient to bind him over on any charge. See
People v White,
We must reject defendant’s request to reverse *500 his conviction and grant a new trial on the charge of voluntary manslaughter. We cannot predicate prejudice on defendant’s subjective fears relative to the wisdom of the jury system. Defendant was not coerced into waiving his right to a jury trial. If his trial had been before a jury, any prejudice to him because of the magistrate’s error could have been cured either by the trial court or on appeal. Basic to defendant’s "coercion” argument is the premise that whenever a directed verdict on a charge is granted at the close of the people’s proofs in a criminal trial, the defendant does not receive a fair trial on the remaining charges. That proposition we find untеnable. Any prejudice suffered by defendant as a result of the magistrate’s error was of his own making.
Whether acquittal was mandated due to unrebutted expert opinion?
At trial, the defendant presented expert testimony that defendant feared for his lifе at the time of the stabbing. This testimony was not rebutted by the prosecutor, as no expert witnesses were called by the people. Thus, defendant asserts, he either proved the defense of self-defense or the prosecutor failed to nеgate the defense beyond a reasonable doubt as a matter of law.
Defendant’s argument, though again apparently sincere, is unacceptable. He contends that the opinion of an expert witness on the state of mind of a defendant сlaiming self-defense uncontradicted by other expert testimony must be accepted by the trier of fact as conclusive of the fact. Such is not and never has been the law.
A psychiatrist and a clinical psychologist testified that in their opinion defendant was in fear of his life at the time he stabbed the victim. Even if believed and accepted by the trier of fact, however,
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such evidence would not be sufficient to establish the defense of self-defense. Not only must the defendant believe himself to be in great danger, but that belief must also bе reasonable under the circumstances.
People v Shelton,
There was no reversible error. Affirmed.
Notes
If we were to logically extend defendant’s argument, we would have to conclude that being convicted of voluntary manslaughter was the best he could have hoped for in any case; if a jury would not have properly applied the law of deliberation and premeditation, it surely would not have properly applied the law of provocation in his favor.