People v. Karcher

• Decision Date: 08 September 1948
• Docket Number: No. 76.,76.
• Citation: 33 N.W.2d 744,322 Mich. 158
• Parties: PEOPLE v. KARCHER.
• Court: Michigan Supreme Court

322 Mich. 158

33 N.W.2d 744

PEOPLE

v.KARCHER.

No. 76.

Supreme Court of Michigan.

Sept. 8, 1948.

Appeal from Circuit Court, Wexford, County; Fred S. Lamb, judge.

George A. Karcher was bound over to circuit court for trial on charge of securing an abortion. From an order of the circuit court granting defendant's motion, before trial, to dismiss for lack of probable cause, the people of state of Michigan appeal.

Order reversed and cause remanded.

Before the Entire Bench.

Eugene F. Black, Atty. Gen., Edmund E. Shepherd, Sol. Gen., of Lansing, Elbern Parsons, Chief Asst. Atty. Gen., and Frank H. Miltner, Pros. Atty., of Cadillac, for plaintiffs-appellants.

Arnold R. Levandoski, and Denley I. Priest, both of Grand Rapids, for defendant and appellee.

DETHMERS, Justice.

After preliminary examination defendant was bound over to circuit court for trial on a charge os securing on abortion. From an order of the circuit court granting defendant's motion, before trial, to dismiss for lack of probable cause the people appeal.

Testimony taken before the magistrate shows substantially the following: The complaining witness had been pregnant about two months; she entered a hospital in great pain and distress; X-ray pictures disclosed a metal catheter extending through the uterus into her abdomen; doctors called upon to attend her operated and removed the catheter; her pregnancy terminated shortly thereafter, the presence of the catheter being sufficient to account for the miscarriage. Before operating the doctors insisted upon her informing them where she had been and what had been done to her; she made and signed a statement naming defendant as the person who had inserted the catheter. She testified that defendant had inserted a copper tube into her body; that he told her it had broken off; and that, after an unsuccessful attempt to remove it, he advised her to go to a physician.

On this and other testimony the examining magistrate made his determination of probable cause to believe that the offense charged had been committed by defendant.

The defendant, in support of his contention that the evidence was insufficient and that the complaining witness's testimony was not worthy of belief, relies on her admissions and statements at the examination, which, it is urged, cast doubt upon her credibility and make her claims unlikely or fantastic. Particularly, the defendant stresses her admission that after her operation she and her husband called upon the defendant and demanded that he pay them $4,000 and expenses, threatening to expose him to the authorties if he did not pay. She also admitted that she would not have sought prosecution nor testified as she did against the defendant had he met her demands for payment.

The people state the question involved as being whether the circuit court was justified in dismissing the case on the ground that the testimony of the complaining witness, essential to establishment of probable cause, was unworthy of belief because of her admitted attempt to obtain money from the defendant.

There can be no doubt, and the people do not dispute defendant's contention, that a circuit court has jurisdiction to consider a motion to dismiss a criminal case after the defendant has been bound over to that court upon preliminary examination by the examining magistrate. 3 Comp.Laws 1929, § 17290, Stat.Ann. § 28.1016; Barnard v. Judge of Superior Court, 199 Mich. 227, 165 N.W. 833;People v. Rice, 206 Mich. 644, 173 N.W. 495.

It is the defendant's theory that on this appeal, in the nature of certiorari, this court should not disturb the finding of the circuit court if there is any evidence in the record to support it. What are the limitations upon our inquiry and what tests are to be applied on certiorari? In Jackson v. People, 9 Mich. 111, 77 Am.Dec. 491, this court said:

‘The office of a certiorari is not however to review questions of fact, but questions of law. And in examining into the evidence the appellate court does so not to determine whether the probabilities preponderate one way or the other but simply to determine whether the evidence is such that it will justify the finding. * * *’

While we do not weigh the evidence to determine the facts, we do examine it to determine, as a matter of law, whether it justifies the action of the circuit court. Essential to that determination is a consideration of the nature of that court's action. In effect, it constituted a holding that the magistrate was guilty of an abuse of discretion. As said in People v. Dellabonda, 265 Mich. 486, 251 N.W. 594, 596:

‘Primarily the question of probable cause is for the consideration of and determination by the examining magistrate. This court may not agree with the findings of such magistrate but it has no right to substitute...