153 Mich. App. 437 | Mich. Ct. App. | 1986
On August 22, 1984, defendant was bound over for trial on a charge of felonious assault, MCL 750.82; MSA 28.277, after a preliminary examination conducted by Judge Allen L. Garbrecht of the 10th Judicial District Court in Calhoun County. On April 25, 1985, the Calhoun Circuit Court granted defendant’s motion to quash the information and to dismiss the charge against him, on the ground that the district judge abused his discretion in binding defendant over for trial. The people appeal as of right from the grant of defendant’s motion.
The appeal centers on the fact that the victim of the attack could not establish that defendant had a dangerous weapon at the time of the alleged assault. At the preliminary examination, the victim testified that he entered the Bait Shop in Battle Creek, Michigan, for a party. After twenty to twenty-five minutes, he was "attacked” from behind by three young men. He testified that he knew the men from school. One of them grabbed him from behind and dragged him out the door, where the three started beating and attacking him. He testified that he was struck with "big large sticks,” two or three feet long and five or six inches thick. At one point, he testified that he
The victim identified defendant in court as one of his three attackers, but admitted that he did not know if defendant had a stick. He did not recall specifically what defendant did to him, but said that when he finally got away from them, defendant ran after him. As a result of the attack, the victim required three stitches on the right side of his head and received a swollen hand.
Another witness testified that he saw the victim being hit in the face and being hit with sticks and fists. He thought that there were three attackers. He recalled that one or two of the attackers had sticks. He identified defendant in court as one of the attackers. However, because of the darkness, he was not able to say specifically what defendant did do. Further, on cross-examination, the witness admitted that his testimony was influenced by conversations he had with the police wherein the police described the defendants as "troublemakers” and stated that they should be prosecuted and taken off the streets.
The district judge found sufficient probable cause to bind defendant over on the charge of felonious assault and ordered him bound over. The circuit court granted defendant’s motion to quash the information on the ground that the evidence produced at the preliminary examination did not establish probable cause to believe defendant committed the crime.
A trial court may reverse the magistrate’s decision to bind a defendant over only if it appears on the record that there has been an abuse of discre
Reversed and remanded.