(dissenting). On appeal defendant’s counsel presents three issues. The second one is whether the facts as developed at the trial show as a matter of law that the crime of manslaughter was committed. My decision that the answer to this must be “no” makes it unnecessary to discuss the other two issues.
*388A fire occurred at tlie Ogg residence in Wyoming, Michigan on November 4,1966. A neighbor reported it to the city fire department at 11:37 a.m. The only people in the house at the time were two of defendant’s children, William Ogg, Jr., age 5, and Philip Ogg, age 4. They were dead when removed from an upstairs room by firemen. The pathologist testified that their deaths were caused by carbon monoxide poisoning.
On the evening prior to the fire, Mrs. Ogg left the home between 7 and 7:30 p.m. to conduct a sales demonstration and returned home shortly before midnight. Mr. Ogg, a vacuum cleaner salesman, went to his office and returned home after midnight. William, Jr., and Philip were left under the care of defendant’s older children, Melvin Ogg, age 6, and Richard Jensen, age 10, the latter being defendant’s son by a former marriage. Some time during the evening Richard sent William, Jr., and Philip to bed. When they would not stay in their room he told Melvin to lock the door. This was done by inserting a knife between the casing and the door. Fastening the door in this way had been a customary procedure in the family, known as “knifing the door,” since the hook and eye lock on the door had been broken. Defendant had told Richard to “knife the door” if the two younger boys gave him any trouble. Neither defendant nor her husband checked on the children when they returned home. All four children slept upstairs and defendant and her husband slept on the first floor of the house.
The morning of the fatal day Richard and Melvin got themselves up, dressed, ate breakfast, and went to school. The testimony is varied as to whether William, Jr., and Philip wore let out of their room for breakfast. If they were, they were returned to it by Melvin and the door again secured by a knife *389as before. After Richard and Melvin left for school, Mr. and Mrs. Ogg got up and dressed. Defendant’s husband testified that he left for work about 9 a.m. A neighbor saw the defendant leave home between 9:30 and 10 a.m. Neither Mr. nor Mrs. Og'g went upstairs to check on the children before leaving the house that morning. Defendant testified that she went to a training class for sales people and then went for lunch with some of them, after which she bought two snow shovels at a store and left for home about 1 p.m.
On November 16, 1966, defendant was arrested and charged with manslaughter. A preliminary examination was held on December 15 and 16, 1966, at the conclusion of which the municipal judge found that there was not probable cause to believe that voluntary manslaughter had been committed by defendant, and that there was probable cause to believe that involuntary manslaughter and cruelty to a minor child had been committed by the defendant. The municipal judge’s written opinion states in part:
“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, 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 of 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 *390of Section 28.331 of Michigan Statutes Annotated, as amended,
“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 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 28.340 and 27.3178 (598.2) b (1) of Michigan Statutes Annotated, as amended.
“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 he 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.
“Wherefore, Irene Phyllis Ogg did kill William Ogg, age five years, in violation of Section 28.553 of Michigan Statutes Annotated, as amended, and *391against the peace and dignity of the people of the State of Michigan.
“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, care and custody said child was, did cruelly, unlawfully and feloniously punish said child; did unlawfully or negligently deprive said child of necessary food, clothing or shelter and did wilfully cause or permit the health of such child to he injured, his life to he endangered by exposure, want or other injury to his person, in violations of and contrary to the provisions of Section 28.331 of Michigan Statutes Annotated, as amended.”
The amended and supplemental information charged defendant in almost identical language to that just quoted from the examining magistrate’s opinion. At the arraignment, February 24, 1967, defendant stood mute and a plea of not guilty was entered as to both counts, involuntary manslaughter under CL 1948, § 750.321 (Stat Ann 1954 Rev § 28.553) and child cruelty under MCLA § 750.136 (Stat Ann 1962 Rev § 28.331).
The nonjury trial commenced on April 17, 1967 and lasted nine days at the conclusion of which defendant was found guilty of involuntary manslaughter.
In People v. Ryczek (1923), 224 Mich 106, 110, our Supreme Court quoted with approval the following definition of involuntary manslaughter from 21 Cycp 760:
“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 *392itself, or by the negligent omission to perform a legal duty.”
The prosecution based its case on the last situation, negligent omission to perform a legal duty. The people argued that the child cruelty statute, MCLA § 750.136 (Stat Ann 1962 Rev § 28.331), imposed a legal duty on defendant, and that her negligent omission to perform it resulted in the death of William Ogg, Jr. The statute states:
“Any parent or guardian or person under whose protection any child may be, who cruelly or unlawfully punishes, or wilfully, unlawfully or negligently deprives of necessary food, clothing or shelter, or who wilfully abandons a child under 16 years of age, or who habitually causes or permits the health of such child to be injured, his or her life endangered by exposure, want or other injury to his or her person, or causes or permits him or her to engage in any occupation that will be likely to endanger his or her health, or deprave his or her morals or who habitually permits him or her to frequent public places for the purpose of begging or receiving alms, or to frequent the company of or consort with reputed thieves or prostitutes, or by vicious training depraves the morals of such child, shall, upon conviction, be deemed guilty of a felony: Provided, however, If, after such conviction and before sentence, in case the child has not been deformed or maimed, he or she shall appear before the clerk of the court in which said conviction shall have taken place, and with good and sufficient surety, to be approved by said clerk enter into bond to the people of the state of Michigan in the penal sum of $1,000.00 conditioned that lie or she will furnish such child or children with necessary and proper home, care, food, shelter, protection and clothing, the said court may suspend sentence therein. When complaint is made on oath or affirmation to a magistrate or court having jurisdiction in such cases *393that the complainant believes that any of the provisions of law relating to or affecting children are being or are about to be violated in any particular building or place, such magistrate or court being satisfied that there is reasonable ground for such belief shall issue a warrant directed to the proper sheriff, constable, police officer or agent of such association, authorizing him to enter and search such building or place, and to arrest any person there present violating or attempting to violate any such law, and to bring such person before some court or magistrate of competent jurisdiction, together with the child or children concerning whom such offense has been committed, to be dealt with according to the law; and such attempt shall be held to be a violation of such law, and shall subject the person charged therewith, if found guilty, to the penalties provided for such violation.” (Emphasis added.)
The principle case relied on by the people is Delay v. Brainard (1968), 182 Neb 509 (156 NW2d 14). However, the Nebraska statute is significantly different from the Michigan one just quoted. The Nebraska statute (§ 38-116, RRS 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 he placed in such a situation that its life or health may he endangered, or to cause or permit such child to be overworked, cruelly beaten, tortured, tormented or mutilated.” (Emphasis added.)
Thus, the Nebraska statute makes it cruelty for a person having* the care, custody or control of any child to willfully permit such child to be placed in a situation such that its life or health may he endangered. However, the comparable part of the *394Michigan statute makes it cruelty for a person under whose protection any child may be to habitually cause or permit the health of such child to be injured, his life endangered by exposure, want or other injury to his person. Apparently the Michigan legislature had in mind cases where a child’s health is injured by repeated beatings or his life is endangered by lack of shelter or food or by other injury to his body. This part of the Michigan statute is more limited than the comparable part of the Nebraska statute which refers to a situation where life or health may be endangered but does not restrict or limit the way in which the danger occurs.
Additionally, the Delay case was a review of a proceeding on a petition for a writ of habeas corpus by Mrs. Delay, who was charged with manslaughter. The district court had granted the writ and Sheriff Brainard appealed. The issue was whether the evidence was sufficient to show that a crime was committed. In a split decision the Nebraska Supreme Court held that the mother (Mrs. Delay) was in violation of the child cruelty statute when she locked her three children under four years of age in the house and took off on her own pleasure. Her husband had left the house before 7 a.m. and she apparently left about 9 a.m. and spent some time in her paramour’s apartment. She planned to be back home in time to get her husband’s lunch at noon. The fire alarm was turned in at 9:45 a.m. and the mother was located at a bar about 10:25 a.m. The majority of the court stated they could not as a matter of law say that the mother could not be guilty of manslaughter, even though a gross breach of duty and not a slight breach was required. The court reversed, ordering the accused to stand trial and stating that it was for a jury to determine whether the conduct of the accused crossed the line *395where her breach of duty rendered her criminally negligent.
It is elementary law, however, that it is not necessary that the evidence at a preliminary hearing be sufficient to support a verdict of guilty after a trial. The purpose of a preliminary hearing is not to determine guilt or innocence. 1 Gillespie, Michigan Criminal Law and Procedure, §§ 306, 307, pp 364, 365.
In deciding this case Chief Justice White’s concurring opinion in the Delay case has been of more help than the majority opinion because of his discussion of the issue of proximate cause and the reasonable foreseeability of the harm. I quote with approval from his opinion, pp 521, 522:
“The record before us reveals grave questions as to the issue of proximate cause. I fail to see, at this point, how defendant’s clandestine purpose or motivation in visiting her paramour is at all relevant to either the issue of neglect or proximate cause. This is a manslaughter case, and intent or purpose or motive is immaterial. Her conduct would be neither more nor less culpable or causative if her absence was for the purpose of visiting her minister, or, for that matter, absenting herself to consult with a social welfare agency about the care of her children. Is the fact that she removed herself from the visual proximity of her children, or the length of time that she so removed herself, the competent producing or proximate cause of the child’s death? The direct cause of this child’s death was a fire occurring not more than an hour and a half or two hours after she left the home. Just how the balance of the three or four hour period of time she was gone is relevant to the establishment of the issues of neglect and proximate cause in this case does not appear at this time. I see considerable difference, even as a matter of law, between a case in which a hungry child after being left alone all *396day drinks a bottle of poison liquid left exposed, and one in which a child is killed in a crib as a result of fire a few minutes after the mother has left (even in her own home) and is out of the visual and hearing proximity of her child for a considerable time later. And, it may be that the detailed facts surrounding the exact location of the child, the previous conduct of the mother, and the possible conditions which might result in danger to the child which were present and should have been known to the defendant, all may be highly relevant to determine the crucial issue of guilt and proximate cause in this case. I shall not take the facts as they rather sketchily appear in this record and attempt to relate them precisely to the rationale of the relevant rules of law as to proximate cause. Intentional misconduct is irrelevant but reasonably foreseeable harm and the legally imposed risk resulting therefrom are highly relevant issues. The close question of whether they may be determined as a matter of law or whether they present a jury question must abide determination of the case on its merits.” (Emphasis added.)
Applying Chief Justice White’s reasoning to the case before us, I think defendant’s purpose in leaving the house is immaterial in an involuntary manslaughter case. The direct cause of the death of William Ogg, Jr., was an accidental fire occurring not more than an hour and a half or two hours after defendant left home. The balance of the time she was gone is irrelevant to the issues of cruelty, neglect, and proximate cause. Similarly, evidence regarding the small size of the room, its lack of bathroom facilities, its lack of heat and light, the lack of clothing and bedding and food are all irrelevant to a death caused by an accidental fire because those factors did not in any way contribute to or cause the death. Heat and clothing would have been relevant if the deceased had died from *397freezing to death just as food would have been relevant if he had died from starvation. They are not relevant to a death caused by an accidental fire.
The only other factually similar case called to attention is People v. Rodriguez (1960), 186 Cal App 2d 433 (8 Cal Rptr 863), hearing denied. In a non-jury trial defendant was found guilty of involuntary manslaughter. She had left four children between the ages of two and six locked in the house. Additional facts taken from pages 435 and 436 of the court’s opinion are:
“Olive Faison lived across the street from defendant. About 10:45 p.m. on November 8, 1959 Miss Faison heard some children calling, ‘Mommy, mommy.’ For about 15 or 20 minutes she did not ‘pay too much attention.’ She noticed the cries became more shrill. She went to the front window and saw smoke coming from defendant’s house. She ‘ran across the street and commenced to knock the door in and started pulling the children out.’ There was a screen door on the outside and a wooden door inside the screen door. The screen door was padlocked on the outside. The other door was open. She broke the screen door and with the help of neighbors pulled three of the children out of the house. She tried to get into the house through the front door but could not because of the flames. A neighbor entered through the back door but could not go far because of the flames. Miss Faison took the three children to her apartment and shortly thereafter returned to the scene of the fire. She remained ‘until after the little boy was brought out and revived and sent to the hospital.’ Miss Faison did not see defendant around the house or the neighborhood at the time of the fire.
“Firemen arrived at the scene some time after 10 p.m. The front door was open; there was no obstruction. Fireman Hansen went inside and found a baby boy in the back bedroom near the bed. The *398fire was about 3 feet away from the boy. Hansen took the boy out of the house. ‘He appeared to be dead at the time.’ The child was Carlos Quinones.
“Around 4 or 4:30 p.m. on November 8, 1959 defendant was in ‘Johnny’s Place.’ She was at the bar drinking ‘coke.’ She stayed about an hour. As John Powers, one of the bartenders, was closing the place about 2:30 a.m. on the morning of November 9, he saw defendant outside the building. He had not seen her inside before that time.
“Maria Lucero, defendant’s sister, went to defendant’s home about 12 p.m. on November 8, 1959. She went looking for defendant. She found her about 2 or 2:30 a.m. in the same block as ‘Johnny’s Place.’ Defendant was nervous and frightened, said she knew about the fire and that she went over to tell Johnny Powers about it. Defendant had not been drinking.”
It was contended by the Attorney General in the Rodrigues case that defendant had violated the child cruelty statute and therefore had committed an unlawful act within the meaning of the statute defining involuntary manslaughter as “Involuntary — in the commission of an unlawful act, not amounting to felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection.” (Penal Code, § 192).
The California child cruelty statute (Penal Code, § 273a) stated:
“Any person who willfully causes or permits any child to suffer, or who inflicts thereon unjustifiable physical pain or mental suffering, and whoever, having the care or custody of any child, causes or permits the life or limb of such child to be endangered, or the health of such child to be injured, and any person who willfully causes or permits such child to be placed in such situation that its life or *399limb may be endangered, or its health likely to be injured, is guilty of a misdemeanor.”
The California appellate court, after discussing the pertinent statutes and two earlier California cases, dealing with involuntary manslaughter stated at pp 440, 441:
“It is generally held that an act is criminally negligent when a man of ordinary prudence would foresee that the act would cause a high degree of risk of death or great bodily harm. The risk of death or great bodily harm must be great. See cases collected 161 ALR 10. Whether the conduct of defendant was wanton or reckless so as to warrant conviction of manslaughter must be determined from the conduct itself and not from the resultant harm. Commonwealth v. Bouvier, 316 Mass 489, (55 NE2d 913). Criminal liability cannot be predicated on every careless act merely because its carelessness results in injury to another. People v. Sikes, 328 Ill 64 (159 NE 293, 297). The act must be one which has knowable and apparent potentialities for resulting in death. Mere inattention or mistake in judgment resulting even in death of another is not criminal unless the quality of the act makes it so. The fundamental requirement fixing criminal responsibility is knowledge, actual or imputed, that the act of the accused tended to endanger life. State v. Studebaker, 334 Mo 471 (66 SW2d 877, 881).
“In a case of involuntary manslaughter the criminal negligence of the accused must be the proximate cause of the death. (Citations omitted.)
“It clearly appears from the definition of criminal negligence stated in People v. Penny, supra, 44 Cal 2d 861 (285 P2d 926), that knowledge, actual or imputed, that the act of the slayer tended to endanger life and that the fatal consequences of the negligent act could reasonably have been foreseen are necessary for negligence to be criminal at all. Must a parent never leave a young child alone in the house *400on risk of being adjudged guilty of manslaughter if some unforseeable occurrence causes the death of the child? The only reasonable view of the evidence is that the death of Carlos was the result of misadventure and not the natural and probable result of a criminally negligent act. There was no evidence from which it can be inferred that defendant realized her conduct would in all probability produce death. There was no evidence as to the cause of the fire, as to how or where it started. There was no evidence connecting’ defendant in any way with the fire. There was no evidence that defendant could reasonably have foreseen there was a probability that fire would ignite in the house and that Carlos would be burned to death. The most that can be said is that defendant may have been negligent; but mere negligence is not sufficient to authorize a conviction of involuntary manslaughter.” (Citations omitted.)
While there are no Michigan cases which are factually similar, there are Michigan cases involving involuntary manslaughter which make it clear that to sustain a conviction of manslaughter the conduct of the accused must have been the immediate and direct cause of the death, and must have been characterized by such a degree of culpable negligence as to amount to gross negligence. In People v. Beardsley (1907), 150 Mich 206, 209 the court stated:
“The law recognizes that under some circumstances the omission of a duty owed by one individual to another, where such omission results in the death of the one to whom the duty is owing, will make the other chargeable with manslaughter. 21 Cyc p 770 et seq., and cases cited. This rule of law is always based upon the proposition that the duty neglected must be a legal duty, and not a mere moral obligation. It must be a duty imposed by law or by contract, and the omission to perform the duty must be the immediate and direct cause of death.” (Citations omitted.)
*401In People v. Barnes (1914), 182 Mich 179, 198, 199 the court said:
“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.
“Not every degree of carelessness or negligence, if death ensues, renders the party guilty of manslaughter. The case may be one of mere misadventure. 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.
“An unavoidable crime is a contradiction. Whatever is unavoidable is no crime. 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 proximate 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.
“The ultimate inquiry should be: Was the respondent criminally negligent, and, if so, did his criminal negligence cause the death of the deceased?” (Citation omitted.)
*402In the present case defendant’s conduct is distinguishable from that in the Delay and Rodriguez cases, supra. In those cases children were locked in a house, whereas in this case they were locked in a windowless upstairs room, approximately 6 feet by 11 feet, with sloping ceiling. However, "William Ogg, Jr., was mentally retarded and there was testimony that he or Philip had set fires in the house in the preceding June and October when their parents were at home. Thus, it was foreseeable in this case that the deceased might have started a fire in the house if he had not been confined in his room. Additionally, there was testimony that when he and Philip occupied an upstairs bedroom with a window in it, they climbed out the window and thereby became in danger of falling to the ground.
While I certainly do not approve defendant’s standard of care of the deceased, I do not think it was proven to be the direct and immediate cause of the death. Had the fire not occurred, deceased would be alive. The accidental fire of undetermined origin, which started on the first floor, was not reasonably foreseeable in my opinion. I would hold as a matter of law that these facts will not sustain a conviction for involuntary manslaughter.