(dissenting in part). I respectfully dissent from my colleagues’ holding that the 12-day rule, set forth in MCL 766.4; MSA 28.922 and People v Weston, 413 Mich 371; 319 NW2d 537 (1982), does not apply where an accused awaiting his or her preliminary examination is not in physical custody. I note first that there is no such exception in the language of MCL 766.4; MSA 28.922 and that the only exception to the 12-day rule set forth in that statute is the following exception found in MCL 766.7; MSA 28.925:
"A magistrate may adjourn a preliminary examina*359tion for a felony to a place in the county as the magistrate deems necessary. The accused may in the meantime be committed either to the county jail or to the custody of the officer by whom he was arrested or to any other officer; or, unless he is charged with treason or murder, he may be admitted to bail. An adjournment, continuance, or delay of a preliminary examination shall not be granted by a magistrate except for good cause shown. A magistrate shall not adjourn, continue, or delay the examination of any cause by the consent of the prosecution and accused unless in his discretion it shall clearly appear by a sufficient showing to the magistrate to be entered upon the record that the reasons for such consent are founded upon strict necessity and that the examination of the cause cannot then be had, or a manifest injustice will be done. An action on the part of the magistrate in adjourning or continuing any case, shall not cause the magistrate to lose jurisdiction of the case.”
This statute explicitly recognizes the possibility that the accused might have been admitted to bail but nevertheless limits the magistrate’s authority to adjourn, continue, or delay the preliminary examination "except for good cause shown”. In addition, even where both the prosecution and the accused have agreed to such a delay, the magistrate is not to grant the delay "unless in his discretion it shall clearly appear by a sufficient showing to the magistrate to be entered upon the record that the reasons for such consent are founded upon strict necessity and that the examination of the cause cannot then be had, or a manifest injustice will be done”. Finally, I do not agree that the Supreme Court in Weston intended the 12-day rule to be applied only where the accused is incarcerated. The Supreme Court did mention the fact that the accused in that case had been incarcerated, but it did so in response to a series of Court of Appeals cases which had repeat*360edly applied the principle that noncompliance with MCL 766.4; MSA 28.922 is not error requiring reversal unless the defendant could show prejudice from the delay. In context, the Supreme Court was showing that the very fact of incarceration constituted prejudice. However, nowhere in the opinion did the Supreme Court state that such prejudice must exist before a violation of the 12-day rule would require reversal of a conviction — instead, the Supreme Court rejected the Court of Appeals principle of "no prejudice/no reversible error”. I believe that the majority has, by requiring incarceration, revived the former "no prejudice/no reversible error” rule.