On the morning of November 4, 1966, following a fire of undetermined cause at the family residence in the city of Wyoming, Kent county, Michigan, two small children, William Ogg, Jr., age 5, and his brother, Philip Ogg, age 4, sons of defendant, Irene Phyllis Ogg and her husband, William Wayne Ogg, were found dead by firemen in an upstairs room. The children had been left unattended and locked in their sleeping quarters on that fateful morning and died from the inhalation of carbon monoxide fumes. Defendant was convicted of involuntary manslaughter in the death of William Ogg, Jr., and sentenced to a term of 3 to 15 years in the Detroit House of Correction, a sentence she is presently serving. CL 1948, § 750.321 (Stat Ann 1954 Rev § 28.553).
On the evening prior to the fire, both defendant and her husband went away in the early evening. William Ogg, a vacuum cleaner salesman, went to his office and returned sometime after midnight, while defendant departed to conduct a sales demonstration party away from home, leaving William Ogg, Jr., and Philip Ogg in the charge of the two older children, Melvin Ogg, age 6, and Richard Jensen, age 10, the latter being defendant’s child by a former marriage. Defendant left the house between 7 and 7:30 p.m., returning shortly before midnight. Prior to leaving the house, defendant instructed *375Richard that he could lock the younger children in their room in the event that they gave him any trouble. The procedure used in the Ogg household for this purpose was that of “knifing the door,” by wedging a knife between the door and the casing in such a way as to prevent opening of the door.
During the evening Richard sent the two younger boys to bed and because William, Jr., and Philip were running around upstairs, Melvin, apparently at Richard’s request, knifed the door in order to confine the two young boys to their room.
When defendant returned home the house was quiet and she did not check on the four children, all of whom slept upstairs, before retiring to her first-floor bedroom for the night. She did not know that the door to the room occupied by William, Jr., and Philip was locked, although, as she testified, she was assured in her own mind that it was, inasmuch as it was a matter of course that Richard would lock that door if he were going to bed in the upstairs room shared with brother Melvin, before the arrival home of his mother. Defendant’s husband, who apparently had seldom seen the upstairs of his home in the family’s approximately two years of residence there and, as he testified, had never been in certain of the upstairs rooms, likewise did not check on the children after arriving home that evening.
On the morning of November 4, 1966, the older brothers, Melvin Ogg and Richard Jensen, got up, ate breakfast, and went to school. It was unclear from the testimony whether William, Jr., and Philip Ogg were released from their room for breakfast. In any event, defendant testified that she did not know, of her own knowledge, whether William, Jr., and Philip were brought downstairs for breakfast. Neither she nor her husband, both of whom got up *376after the older children had departed for school, made any attempt to see the boys or locate them in the morning, bnt defendant was assured, as she testified, that they were locked into their upstairs room. Defendant’s husband testified that he left the house for work at approximately 9 a.m. without knowledge that defendant had plans that morning to be gone from the house. Defendant finished dressing about 9:30 a.m., had a cup of coffee, went to the stairway and listened to see if she could hear the young boys upstairs and, hearing nothing, walked out the front door between 9:30 and 10 a.m. Defendant testified that she went to a training class for sales people until about 12 or 12:30 that afternoon, after which she had lunch at a restaurant and conversed for a while, and then bought two snow shovels and departed for home at approximately 1:10 p.m.
In the meantime, a neighbor reported the fire at the Ogg house at 11:37 a.m. and firemen were at the scene at approximately 11:39 a.m. The bodies of William Ogg, Jr., and Philip Ogg were found by firemen in their upstairs room upon entry into the house 15 to 20 minutes after arriving on the scene. One body was found lying on the bed, the other on the floor, and both were clothed only in undershorts. Attempts to revive the young boys were unsuccessful.
Testimony of a certified consulting psychologist who had examined William Ogg, Jr., when he was two years of age revealed that he was a boy of educably retarded intellectual functioning, who had a tendency to be dependent upon other people and who reacted poorly to frustration.
Testimony showed that both children were, at the time of the fatal fire, occupying as their sleeping quarters a small room with sloping ceiling, with an *377area approximately 6 feet by 11 feet on the upstairs floor, without windows and which, at the time firemen discovered the bodies of the two boys, contained piles of human excrement. There was testimony that there was no bedding on the rollaway bed located in that room, and that the room was without heat. It also appears from the evidence that the room had an electrical fixture without a functioning bulb. It had been decided by defendant and her husband several months prior to the fire that William, Jr., and Philip should be placed in the windowless room, which had a door which could be secured, so as to try to curb such tendencies of the young boys as that of setting fires in the upstairs portion of the house as well as attempting to climb out of certain of the upstairs windows.
Defendant was arrested on November 16, 1966, and charged with manslaughter in the death of William Ogg, Jr. A preliminary examination was held on December 15 and 16, 1966, resulting in a finding by the examining magistrate that there was probable cause to believe that the offenses of involuntary manslaughter and cruelty to a minor child had been committed by defendant. At the arraignment defendant stood mute and a plea of not guilty was entered as to both counts. A nonjury trial began in the Kent County Circuit Court on April 17, 1967, at the conclusion of which defendant was found guilty of involuntary manslaughter.
The issues raised by defendant on this appeal are restated and considered as follows:
(1) Did the examining magistrate commit error in finding that a crime had been committed and that there was probable cause to believe that the accused was guilty of that crimef
Defendant contends that, upon the basis of the transcript of proceedings had before the examining *378magistrate, the prosecution failed to establish that a crime had been committed or that defendant committed it.
The people counter by asserting that in order to establish error by the examining magistrate in binding a defendant over for trial, defendant has the burden of establishing a clear abuse of discretion; that absent a clear abuse of discretion an appellate court will not disturb the findings of the magistrate, People v. Dellabonda (1933), 265 Mich 486; and that no such abuse of discretion has been alleged or shown by defendant.
Evidence as to the circumstances surrounding the tragic events of November 4, 1966, as elicited at the preliminary examination, was substantially the same as that produced upon the trial of this cause, resulting in a finding of defendant’s guilt beyond a reasonable doubt. The opinion of the examining magistrate stated in part:
« # # # pursuant to the statutes in such case made and provided, that upon the conclusion of the examination the said Irene Phyllis Ogg as aforesaid, I found that there was * * * probable cause
to believe that the offense of involuntary manslaughter and cruelty to a minor child has been committed by her and that the specification of said offenses and particulars thereof are as follows, to-wit:
“Upon the 4th day of November, 1966, at the City of Wyoming, County and State aforesaid, one Irene Phyllis Ogg, being the mother of William Ogg, of the age of five years, and under whose protection and custody said child was, did commit the crime of involuntary manslaughter, contrary to Section 28.553 of Michigan Statutes Annotated, as amended,1 in the death of William Ogg, to-wit:
“That the respondent had certain legal and lawful duties imposed upon her in the care and custody *379of said child, to-wit: to refrain from cruel and unlawful punishment, to provide proper food, clothing and shelter, or to provide such care that the health of said child was not impaired or injured, the said duties being imposed upon the respondent by virtue of Section 28.331 of Michigan Statutes Annotated, as amended,2
“That the respondent did grossly, wilfully, wantonly and negligently breach the aforesaid legal duties and violate the aforementioned Section 28.331 of Michigan Statutes Annotated, as amended, to-wit: that the respondent, being the mother of said child and having the custody of said child, caused the said child to be left unattended in the home, placed in an upstairs closet, the door of which was secured by a knife, and said closet being without proper heat, lights, food, clothing or bedding, and without means of escape, wherein a fire resulted in the home, and due to the aforesaid breach of legal duties, the death of William Ogg resulted.
“That the respondent had certain legal and lawful duties imposed upon her in the care and custody of said child, to-wit: to prevent said William Ogg from becoming neglected so as to come under the jurisdiction of the Juvenile Division of the Probate Court; said duties being imposed upon respondent by virtue of Sections 28.3403 and 27.3178 (598.2) b (1)4 of Michigan Statutes Annotated, as amended, * * *.”
A finding of probable cause at a preliminary examination does not require that the guilt of a defendant be established beyond a reasonable doubt. People v. Ray (1966), 2 Mich App 623. This Court may not substitute its judgment for that of the magistrate unless there has- been a clear abuse of discretion in his determination of probable cause. People v. Dellabonda, supra; People v. Davis (1955), *380343 Mich 348; People v. Marklein (1960), 358 Mich 471; People v. O’Leary (1967), 6 Mich App 115, 120. No such abuse has been alleged or shown. This Court is of the opinion that, upon a thorough review of the record of the proceedings had before the examining magistrate, the evidence was sufficient to uphold the magistrate’s action in binding the defendant over for trial in circuit court.
(2) Was there sufficient evidence presented upon the trial which, if believed, by the trier of the facts, would justify finding defendant guilty beyond a reasonable doubt?
It is the contention of defendant that there was no evidence in this case that the defendant’s act of absenting herself from the family home on the morning of November 4, 1966, leaving her two young boys unsupervised during her absence, was the proximate cause of their deaths or that the deaths wTere foreseeable, citing 40 CJS, Homicide, § 57, which states in part at pp 921, 922:
“There must be such legal relation between the commission of the unlawful act and the homicide that it logically follows that the homicide occurred as a part of the perpetration of, or attempt to commit, the unlawful act. Thus the death must be due to the unlawful act of accused and not to the intervening act or negligence of a third person, or to an independent intervening cause in which accused did not participate and which he could not foresee; and the death must have been the natural and probable consequence of the unlawful act, and the act the proximate cause.”
Defendant, in addition, cites other authorities in support of the contention that, in an involuntary manslaughter case, the element of proximate cause must be shown.
*381The people assert that where a death follows from the negligent or criminal omission to perform a legal duty, the person upon whom the legal duty is imposed is guilty of involuntary manslaughter, citing People v. Ryczek (1923), 224 Mich 106; and that, in the case at hand, defendant had a legal duty to protect and care for her children, a duty which she violated.
People v. Ryczek, supra, sets forth the definition of involuntary manslaughter at p 110, quoting from 21 Cyc, p 760, as follows:
“ ‘Involuntary manslaughter is the killing of another without malice and unintentionally, but in doing some unlawful act not amounting to a felony nor naturally tending to cause death or great bodily harm, or in negligently doing some act lawful in itself, or by the negligent omission to perform a legal duty.’” (Emphasis supplied.)
The duty of a parent to provide necessary care for a child’s health and well-being, which defendant was lawfully obliged to perform, the negligent omission in the performance of which properly gives rise to a charge of involuntary manslaughter under the Rycseh definition where death ensues, is set forth in MCLA § 712A.2 (Stat Ann 1970 Cum Supp § 27.3178[598.2]) as follows:
“Sec. 2. Except as provided herein, the juvenile division of the probate court shall have:
* * *
“(b) Jurisdiction in proceedings concerning any child under 17 years of age found within the county
“(1) Whose parent or other person legally responsible for the care and maintenance of such child, when able to do so, neglects or refuses to provide proper or necessary support, # * * or other care necessary for his health, morals or ivell-being, or who is abandoned by his parents, guardian or *382other custodian, or who is otherwise toithout proper custody or guardianship; * # * (Emphasis supplied.)
In 40 CJS, Homicide, § 63, p 929 it is stated:
“A charge of manslaughter may be predicated on a failure to act as well as on an act. * * * The omission must have been due to gross or culpable negligence, and must have been the proximate cause of the death; and the death must have resulted from the neglect of a plain legal duty imposed by law or contract on accused personally, * * * .
“ * * * The rule that it may be manslaughter to omit to perform a legal duty has frequently been applied in cases of failure on the part of parents or others charged with the custody and care of children or other helpless and dependent persons to provide shelter, food, or medical attendance and in other like cases of neglect. To render accused guilty in such a case, he must have been under a legal duty imposed either by law or contract to care for deceased, * * * .”
See People v. Beardsley (1907), 150 Mich 206, 209.
To be read in pari materia with the above quoted statute is CL 1948, § 750.145 (Stat Ann 1962 Rev § 28.340) which provides in part:
“Any person who shall by any act, or by any word, encourage, contribute toward, cause or tend to cause any minor child under the age of 17 years to become neglected or delinquent so as to come or tend to come under the jurisdiction of the juvenile division of the probate court, as defined in section 2 of chapter 12a of Act No 288 of the Public Acts of 1939, * * whether or not such child shall in fact be adjudicated a ward of the probate court, shall be guilty of a misdemeanor.”
Failure to comply with the above statute constitutes the commission of an unlawful act which, where death ensues therefrom, likewise constitutes invol*383untary manslaughter pursuant to the Ryczek definition.
The acts of defendant in placing her children, or allowing them with her knowledge to be locked, in a small windowless upstairs room, without proper heat, light, food, clothing or bedding, and without means of escape, and, in reckless disregard of the consequences of such action, absenting herself from the home in pursuit of her own business, constitutes, in our opinion, culpable negligence. Defendant’s action also constitutes a misdemeanor in child neglect, in that defendant clearly failed to provide care necessary for their health and well-being, thereby causing them to he neglected, within the meaning of the above-quoted statutes. Defendant left the children unattended, without having made any effort to determine their physical condition since the day prior to the tragic fire which claimed their lives while they were without supervision and care.
There was evidence that William Ogg, Jr. was not normal hut, rather, was a retarded child. This, in itself, would appear to justify a finding that he was not capable of taking care of himself, and that defendant was culpably negligent in not earing for him and in leaving him and his young brother unattended during her prolonged absence from home. In addition there was opinion testimony from a detective with the Michigan State Police, assigned to the Fire Bureau, and from the city of Wyoming fire chief, who had been in the fire-fighting field for 30 years, and both of whom were present at the Ogg residence on the day of the fire, that evacuation of the children from the home would have been possible had the children not been confined to a small upstairs room while unsupervised.
The case of Delay v. Brainard (1968), 182 Neb 509 (156 NW2d 14), involving a review of a pro*384ceeding for a writ of habeas corpus by relator, who was charged with manslaughter, is relevant to the case at hand in the basic facts and holding, as set forth in the prevailing opinion, with which we agree. The Nebraska Supreme Court held that evidence that the mother had locked her three children under four years of age in the house and left on her own pleasure in the morning, whereupon she was unavailable from before 9 a.m. until located at a bar at 10:25 a.m., that a fire alarm was turned in at 9:45 a.m., and that one young child was found dead in the house, was sufficient to allow a jury to determine whether, under the Nebraska statute which is similar to the statute involved in this case,5 the conduct of relator constituted a breach of duty such as to render her criminally negligent. The Court stated as follows at pp 513, 514:
“This raises the question then whether or not, assuming the evidence to be true, it constitutes a crime. * * *
“Section 38-116, R. R. S. 1943, provides:
“ ‘It shall be unlawful, and it is hereby declared to be cruelty for any person employing or having the care, custody or control of any child, willfully or negligently to cause or permit the life of such child to be endangered, or the health of such child to be injured, or willfully to cause or permit such child to be placed in such a situation that its life or health may be endangered, * * * .’
“ * * * It must be conceded that the children were incapable of talcing care of themselves. Relator was courting trouble. The law holds one so situated that his act may endanger the life of another to a high degree of caution, and he may be criminally responsible for loss of life consequent on his failure *385to exercise a proper degree of caution. When we apply the test of the reasonable man, we are forced to the conclusion that relator was deliberately jeop-ardising the lives and safety of the children. She had a legal duty to see that they were protected, but left them unattended for long periods of time. Such neglect is criminal in its character and where it results in death will sustain a conviction for manslaughter. The negligence on which a charge of involuntary manslaughter is predicated may be the omission of an act which it is a person’s duty to perform. 1 Wharton’s Criminal Law and Procedure, § 296, p 621.
^ ^
“The degree of negligence which will make one criminally responsible for a neglect of duty is difficult to define. Obviously, it is not any slight breach of duty but rather a gross failure to do what is required of one. On the record herein, we cannot say as a matter of law relator could not be guilty of manslaughter. Culpable neglect in omitting to perform a legal duty will sustain a manslaughter conviction. Relator had a legal duty to protect the children. She deliberately locked them in the house alone while she went off to pursue her own pleasures. As a result, one of them was burned to death.” (Emphasis supplied.)
As the people contend, the Nebraska Court in Delay, supra, was dealing with a factual situation which might well be considered less extreme than the situation presented by the instant case. Unlike the case at hand, in Delay the children were confined, not to a single windowless room upstairs, but, rather, to the house itself, affording them a greater possibility of escape or rescue, in case of emergency. Yet, the Court was of the opinion that there was probable cause to believe that the death of the child ensued from defendant’s wrongful act, thus constituting manslaughter.
*386We cannot say that the death of William Ogg, Jr., did not result from defendant’s failure to adequately supervise and care for his safety and that of his brother, or that her action was not culpably negligent. The evidence would appear, on the contrary, to support the opposite conclusion.
In People v. Barnes (1914), 182 Mich 179, 198, 199, the Court stated:
“ * * * The crime sought to be proven was involuntary homicide, caused by culpable negligence, and, to make an act carelessly performed resulting in death a criminal one, the carelessness must have been gross, implying an indifference to consequences; and the term ‘gross negligence’ means something more than mere negligence. It means wantonness and disregard of the consequences which may ensue, and indifference to the rights of others that is equivalent to a criminal intent.
“ * * * To warrant conviction, it must be gross negligence. It has been well said that there is little distinction, except in degree, between a will to do a wrongful thing and an indifference whether it be done or not. Therefore gross negligence is criminal, and within limits supplies the place of affirmative criminal intent.
“ * * # As in the law of civil wrongs, so in the criminal law, to render one answerable for an offense, it must result from his act as an effect not too remote but sufficiently proxim,ate thereto.
“To warrant a conviction of manslaughter, the conduct of the accused must have been the proximate cause of death, and must have been characterized by such a degree of culpable negligence as to amount to gross negligence; and that is a question for the jury.” (Emphasis supplied.)
On appeal this Court will not reverse a criminal conviction unless we are satisfied that there was error committed which resulted in a miscarriage of *387justice. People v. Amos (1968), 10 Mich App 533; People v. Reed (1969), 17 Mich App 696. We do not find such error here. There was sufficient evidence presented which, if believed by the trier of the facts, would justify the finding of defendant guilty of involuntary manslaughter beyond a reasonable doubt. The conviction of defendant was not clearly erroneous. People v. Hawk (1970), 22 Mich App 337.
Defendant contends that the trial court committed error in permitting defendant’s husband to testify on behalf of the prosecution. In this case it was proper for defendant’s husband to testify. CLS 1961, § 600.2162 (Stat Ann 1962 Rev § 27A.2162) provides in part:
“A husband shall not be examined as a witness for or against his wife without her consent; nor a wife for or against her husband without his consent, except in suits for divorce and in cases of prosecution for bigamy, in cases or prosecution for a crime committed against the children of either or both, and where the cause of action grows out of a personal wrong or injury done by one to the other, or grows out of the refusal or neglect to furnish the wife or children with suitable support, and except in cases of desertion or abandonment.”
Affirmed.
Rood, J., concurred.CL 1948, § 750.321 (Stat Ann 1954 Rev § 28.553).
CLS 1961, § 750.136 (Stat Ann 1962 Rev § 28.331).
CL 1948, § 750.145 (Stat Ann 1962 Rev § 28.340).
MCLA § 712A.2 (Stat Ann 1970 Cum Supp § 27.3178[598.2]).
MCLA § 712A.2 (Stat Ann 1970 Cum Supp § 27.3178[598.2]), quoted in this opinion: failure to give “care necessary for his health, morals or well-being” includes placing a helpless child in such a situation that its life or health may be endangered.