People v. Burd No. 1

Quinn, J.

(dissenting). I cannot agree with the majority opinion.

The transcript of the preliminary examination discloses that the crime of breaking and entering with intent to commit malicious destruction of property over the value of $1001 was established and that there was probable cause to believe defendant committed the crime. The fact that the complaint and warrant charged breaking and entering with intent to commit larceny is irrelevant in view of CL 1948, §§ 766.4 and 766.13 (Stat Ann 1954 Rev §§ 28.922 and 28.931). The former provides,

“* * * shall examine * * * in regard to the offense charged and in regard to any other matters connected with such charge which such magistrate may deem pertinent.” (Emphasis added.)

The latter provides,

“If it shall appear to the magistrate upon the examination of the whole matter, that an offense not cognizable by a justice of the peace has been committed and there is probable cause for charging the defendant therewith, said magistrate shall forthwith bind such defendant to apjiear before the cir-*319unit court of such county or any court having jurisdiction of said cause, for trial.”

The return of the magistrate confers jurisdiction on the circuit court, People v. Funk (1948), 321 Mich 617, but it does not control the charge filed against a defendant in that court, since the prosecuting attorney may file an information on any charge disclosed by the preliminary examination, People v. Karste (1903), 132 Mich 455, so long as it is based on the same transaction upon which the examination was held, People v. Annis (1865), 13 Mich 511. If the information filed on this return had charged breaking and entering with intent to commit malicious destruction of property over $100, it -would have been good. The fact that the information charged breaking and entering with intent to commit larceny does not change the result in view of the amendment allowed by the trial judge before trial.

The offense under the statute is the same whether the breaking and entering is with intent to commit a larceny or other felony (to be specified). The provisions of CL 1948, § 767.76 (Stat Ann 1954 Rev § 28.1016) authorized the amendment allowed since I do not believe the rights of defendant were prejudiced thereby, People v. Watson (1943), 307 Mich 596. Defendant and his counsel were present at and participated in the preliminary examination which disclosed the offense charged in the amended information.

If CL 1948, § 769.26 (Stat Ann 1954 Rev § 28.1096) and DOR 1963, 529.1 are to control grant or denial of appellate relief, as outlined in People v. Winegar (1968), 380 Mich 719, 730, this case must be affirmed and I so vote.

CL 1948, § 750.110, as amended by PA 1964, No 133 (Stat Aim 1968 Cum Supp § 28.305).