*1 1970] #2.

56-67; namely, Mapp v. Ohio (1961), 367 US 6 L (81 S Ct Ed 2d 1081, 84 ALR2d 933), is not and controlling, hold that the trial court and Court of Appeals* should be affirmed.

Adams, concurred with Kelly, * People Pennington App Appeal granted 398. (1970), 383 Mieh 771. v. PAILLE

PEOPLE Preliminary Examining Magis- 1. Criminal Law — Examination — trate —Review. Probable cause is a for the consideration and deter- examining magistrate mination of the function of an appellate court, decision, on review of such is to determine whether as a matter of law the abused his dis- and, reviewing cretion agree while the not court judgment magistrate, findings except will his stand cases a clear abuse of discretion. Preliminary Duty Examining 2. Criminal Law — Examination — Magistrate Witnesses—Credibility—Evidence. — examining magistrate The right pass judg- had the weight ment not of the evidence but also the witnesses a crime had been committed. Testimony—Record—Review. 3. Witnesses — testimony, The who hears the the demeanor of observes credibility, position their determine judge, advantage appellate has a distinct over the who must judgment solely printed form words. References for Points in Headnotes seq. [1, 2, [3, 2d, 21 Am Jur 443 et Criminal Law 5] § 2d, 21 Am Jur Law Criminal 450. § 383 621. Magistrate Binding Examining Criminal — Law — Over —Prob- able Cause —Review. examining magistrate should not bind defendants over for people merely prove trial if the there was to believe that the crime *2 established.

Concurring Opinion. Brennan, J., T. E. and T. J. M. Kavanagh, C. preliminary 5. Denial motion to reinstate examination and to hind over trial should he the reasons defendant for affirmed separate opinion stated in Brennan, T. E. C. Paille 383 Mich 605. #1 Appeal Appeals, from Court of 2, Quinn, Division Kavanagh P. McGregor, J., and T. G. deny- JJ., ing appeal leave to from Recorder’s Court of Detroit, Gerald W. Groat, J. Submitted December 2, 1969. (Calendar 52,169.) No. Docket No. July 29, Decided 17, 1970.

Robert Paille, David Senak and Melvin Dismukes conspiring legal were with to commit a act illegal in an manner. Warrant dismissed ex- amining magistrate. by plaintiff Motion to reinstate by presid- and bind defendants over for trial denied ing of Recorder’s Court. Leave to de- Appeals. appeals. nied Court of Plaintiff Order presiding judge of Recorder’s Court affirmed. Kelley, Attorney Frank J. A. General, Robert Derengoski, Cabalan, Solicitor General, William L. Prosecuting Attorney, Ap- Samuel Torino, J. Chief pellate Lawyer, Angelo Pentolino, A. Assistant Prosecuting Attorney, people. for the (Robert

Boesky Lippitt, Sandler, & P. C. J. counsel), for defendants Paille Senak. Opinion op the Court. During July, 1967, Detroit riot a Kelly, sniping troopers,

report state caused members of police and Detroit officers to Guard, the National converge Algiers at the located Motel, Woodward Michigan. Avenue, Detroit, who Senak, Robert Paille and David Defendants police department, of the Detroit were members private guard, responded to the Dismukes, Melvin August stop sniping at motel. On call conspiring all 1967, were in warrant August legal in an to commit act one Ronald illegal contrary to PA No 296.1 manner, legal illegal in which the act and the manner in the claim it was carried out described people’s brief as follows: transcript proves “The record that the defendants put sniping in their an end effort entered sniper weapon. motel to locate and his *3 seeking they occupants informative leads herded the line-up facing of motel from their rooms into a a engaged wall and then in a course of conduct unmistakably exhibited and a demonstrated concert of action to commit condone and the commission of unlawful acts. people deny purpose do not that the vowed of the defendants Robert David and Paille, Senak private guard Melvin Dismukes, who was stationed duty nearby investigate the motel, was to informa- shooting of tion area. Witnesses testified that they shots were fired at when them looked out of building, the window. Once inside the however, the coercing beating

defendants’ conduct oc- and cupants of the motel to volunteer information the apparently possess victims did not or refused to divulge position became unlawful, and of it is the agreement knowledge herein that an participation among and can made out the defend- (Stat 1 MCLA Supp 750.157a Ann 28.354[1]). 1970 Cum § § 383 each, of violence and in the use ants to assist other their in- to complete conduct others abusive vestigation.” of the Record- Schemanske, Frank Judge

Hon. Gr. opinion Detroit, lengthy of filed Court, City er’s five parts: 1) divided into order, which was 3) “Facts,” 4) 2) “Legal Aspects,” “Introductory,” “Conclusion.” Witnesses,” 5) witnesses, occupants to the state’s Referring Judge when the entered, the motel said: Schemanske rehearsing residents evident despite

“[T]hese gave dents. different * * ^[*] accounts of some the same inci- in- “However, spite eagerness of their their credible could not convince testimony possibly good disinterested arbiter of facts of their faith or prevarication their truthfulness. Their calculated so blatant as to defeat point perjury object.” its concluded his fol-

Judge Schemanske lows : during of the notes taken

“After careful review testimony transcript, and of the the trial find credible any the court is unable to two any between theory supporting co-conspir- or defendant any of the defendants these even between any conspiracy ator or August who of the unnamed John Does were never any *** identified. no reason to believe “The court finds specifically *4 as here Public Act 296 of 1966 that violation of established; neither, had there has been from have inferred establishment, could he been such the defendants cause that the testimony or else. anyone each other co-conspirators were v. Paille warrant is dismissed and defend- For that ants reason discharged.” Denying People’s “Opinion and In an Order Binding Defend- Motion for Reinstatement and Judge W. Trial,” Groat, ants Over for Hon. Gerald Court, of the Recorder’s stated: undersigned acting the of “This case came before by judge, by way presiding a motion filed as prosecutor, asking rein- that the examination be * * * stated. such filed several one, “The action is a novel by recently court, filed our motions have ¿he prosecutor, appealing the order instead of newly dis- There is no averment of dismissal. covered evidence. people rest their case on The de- discretion; the abused claim that the only to issue concede is the fense counsel that this * * * decided. deed novel from his “That accept conclusion what to evidence. magistrate may theory on what he believes. rest their case. him He also. is evident can make this determination Yet it not be examination perjury *# is on make He is not ^[*] it and It is the making obliged theory is in rest his decision. alleged, conspiracy, was of the crime “One element direct inferable. no credible evidence or

sustained In the of concerted action. That was the element court’s magis- examining action trate was correct. denied.” motion to reinstate application appeal people’s was for leave to Appeals merit “for lack of

denied Court of presented.” grounds application filing for leave to Prior to theory plaintiff’s this Court, *5 383 621." Opinion of the Court. magistrate all must take at face value passing upon credibility wihout of the witnesses. plaintiff In brief filed in Court, asks the question: determining “In evi- testimonial permis- precise

dence in what manner and what magistrate Examining weigh sible extent credibility an produced

of the witnesses him?” before question Plaintiff does answer the not, however, claiming magistrate but, abused discretion, states: question “Notwithstanding facts what necessary to constitute study appear would from law, it of>the weight placed excessive completely of witnesses obscured primary issue record of the the entire

proceedings commission sufficient facts evidenced ours.) (Emphasis charged.” of the offense

In v. Dellabonda 265 Mich p Court, at stated: “To authorize the bind appellant good over for trial there must have appellant guilty

reason to believe of the crime charged. prima against Some hold a cases case facie the accused must be made out. This Court has not probable defined what leaving constitutes each cause, case to be determined its facts. Bouvier defines probable ground suspicion, as, ‘A reasonable supported by sufficiently strong circumstances themselves to warrant a cautious man in belief person guilty that a accused is offense charged.’ Dictionary he is Law Bouvier’s (Rawle’s Rev.), p 3d 2728.” People Ziegler held: 355,we “Amplifying testimony later taken at trial cannot propriety considered in of order

/ Paxlle suppress denying evidence, motion to an accused’s being necessary determine cause from

it preliminary examination.” at evidence taken (Syl 3.) following approval quote from the

We people’s brief: *6 oc- held on numerous “This has honorable Court probable primarily cause the

casions that of the ex- and determination the consideration (1933), People magistrate, amining 265 Mich Dellabonda v. decision review of the and that on 486, appel- examining magistrate the function of the an law a matter of whether as late court is to determine magistrate his discretion. abused the While judgment may agree reviewing the court not the except magistrate, aof in cases of the findings of court the discretion, clear abuse of the (1888), People 367; 72 Mich v. Evans will stand. People Medley (1954), People 486; v. v. (1962), People Delaney v. Karcher Mich 694; 367 (1953), (1948), People 322 337 158; Mich v. Asta (Footnote omitted.) Mich 590.” In crime of the had not committed, the right pass judgment not but, also, the only the weight evidence, of the the witnesses. but also the fact that the We have often commented ad- who hears the has the distinct appellate judge, vantage form who must over the solely printed judgment words.2 blood testing the note judge. of the trial calculated to deceive. “[T]he 2 In Hartka “The trial eourt parties He sees the averted Court judge. weight hysteria in v. and their witnesses generally gives great weight Hartka is our arena for the The cold size the voice of a witness whose (1956), glance, demeanor under words ^[346] appear Mich marks test of truth. on a face to 453, 455, printed page hesitation, face findings of fact eye of the trial we said: There the con- words show flesh detects none 383 light aware that was not be bound over should decisions, our proved was people merely that there if for trial of con- “probable the crime believe that cause” to charged had estab- spiracy lished. Mich 590, 609, Asta we stated: expression connection ‘probable as the cause’,

“The matter of has reference to statute, in the is used of the defendants with alleged rather offense corpus the fact that delicti, is, than to crime person or committed some has been interpretation placed persons. on the stat- Such this Matthews ute Mich Court in conducting justice peace 440. There the preliminary announcement made a the examination to the effect to be- there ‘was had been committed. lieve’ that offense Commenting it was thereon said: “ ‘Obviously justice not statement of the did statutory require- compliance with constitute full *7 prosecutor ment that on an must examination charged show that the offense been committed has it was and that there is cause to believe committed accused.’ .1*. w w query presented in wheth- instant case is competent justice there was evidence before the er peace finding crime that the of of base * * * committed. judge correctly there that “The circuit determined competent no the examination evidence taken on of these essentials Cooper (1903), For Clark determine the similar v. Cooper reasons we 289; the search Vollrath v. 345 Mich 44.” have held Vollrath fact. it in Donaldson v. is for the trier criminal cases. (1910), Mich Donaldson People 301; fact v. Paille Brennan, by T. E. C. J. against crime to show For that reason the order committed. had quash granting erroneous, was not the motion to is affirmed.” such order finding not sustain Court

The record does magistrate clearly abused discretion dis- discharging missing defendants. the warrant request granting that we defendants’ "We “deny people’s affirm the order of opinion judge affirming presiding the order and defendant-appellees.” against dismissing warrants T. M. Adams, Kavanagh, Black, Dethmers, concurred JJ., Kelly, (concurring). I concur in C. J. T. E. Brennan, separate my stated for the reasons affirmance (1970) 383 Mich 605. #1 E. Bren- concurred T. J., T. M. Kavanagh, C. J. nan, did in this ease. not sit

T. G. Kavanagh,