# People v. Doss > Michigan Court of Appeals · September 21, 1977 · 78 Mich. App. 541 URL: https://www.frixlaw.com/law-library/cases/9723241 ## Case - **Full name:** People v. Doss - **Court:** Michigan Court of Appeals - **Decided:** September 21, 1977 - **Citations:** 78 Mich. App. 541; 260 N.W.2d 880; 1977 Mich. App. LEXIS 1219 - **Precedential status:** Published - **Opinion:** Dissent by Kaufman - **Judges:** Beasley, Gillis, Kaufman - **Cited by:** 4 later opinions in the Frix Law Library ## Citator (automated) - **Red flag:** Reversed on other grounds by People v. Doss, 406 Mich. 90 (1979). - Negative treatments: 1 - Distinguished by: 0 - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9723241 ## Opinion text N. J. Kaufman, J. (dissenting). I respectfully dissent. The facts elicited at preliminary examination indicate that the deceased was shot in the head, apparently while turning,, carrying a long object in his hand. A fellow officer testified that defendant was about one foot away from the deceased at the time the shooting took place, although there is no other evidence of close range firing. Defendant was charged with manslaughter under MCLA 750.329; MSA 28.561: "Any person who shall wound, maim or injure any *561 other person by the discharge of any firearm, pointed or aimed, intentionally but without malice, at any such person, shall, if death ensue from such wounding, maiming or injury, be deemed guilty of the crime of manslaughter.” This Court has clearly set forth the standard to be used by an examining magistrate in determining if a crime has been committed. In People v Flint Municipal Judge, 41 Mich App 766, 769-770 ; 201 NW2d 111 (1972), this Court held: "Under the statute, MCLA 766.13; MSA 28.931, the magistrate at the preliminary examination must determine that the offense charged has been committed and that there is probable cause to believe that the defendant is guilty. The matter of 'probable cause’ has reference to the connection of the defendant with the alleged offense rather than to the corpus delicti. Something more than a fínding of probable cause is required insofar as the commission of the crime charged is concerned. People v Asta, 337 Mich 590 [ 60 NW2d 472 ] (1953).” (Emphasis added.) See also People v Oster, 67 Mich App 490, 495 ; 241 NW2d 260 (1976), holding: "It is axiomatic that at the preliminary examination the prosecutor must show that the offense charged has been committed. While positive proof of guilt is not required, People v Martinovich, 18 Mich App 253, 257 ; 170 NW2d 899 (1969), there must be evidence on each element of the crime charged or evidence from which those elements' may be inferred. * * * . People v Juniel, 62 Mich App 529, 536 ; 233 NW2d 635 (1975).” (Emphasis added.) Defendant was bound over on that charge, and a motion to quash the information was denied. The standard to be observed by the reviewing court is *562 set forth in People v Flint Municipal Judge, supra, at 770-771: "A circuit court is no more at liberty than is this Court or the Supreme Court to substitute its judgment for that of the magistrate. We do not weigh the evidence to determine the facts, but we do examine it to determine whether it justifies the action of the circuit court in holding that the magistrate was guilty of an abuse of discretion. People v Karcher, 322 Mich 158 [ 33 NW2d 744 ] (1948).” The ruling of the reviewing court in this case, thus, can be overturned by this Court only if this Court finds that the reviewing court abused its discretion in finding that the examining magistrate did not abuse his discretion. As noted in People v Dellabonda, 265 Mich 486, 491 ; 251 NW 594 (1933): "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 its judgment for his except in case of a clear abuse of discretion.” The elements of manslaughter under MCLA 750.329; MSA 28.561 are as follows: (1) that the deceased died on or about a date; (2) that the death was caused by an act of the defendant; (3) that the defendant caused the death without lawful justification or excuse; (4) that death resulted from the discharge of a firearm; (5) that at the time of such discharge, the defendant was pointing or aiming the firearm at the deceased; and (6) that at the time of such discharge, the defendant in *563 tended to point or aim the firearm at the deceased. 1 Defendant only disputes the existence of the third element, claiming legal justification in taking the victim’s life because he was a police officer and the killing took place while he was investigating a breaking-and-entering of a business. I find that the preliminary examination record contains evidence that contradicts that defense. 2 *I would further hold that, as a jury question was thus presented, Judge Poindexter did not abuse his discretion in refusing to quash Judge Ravitz’s "bind-over” of defendant. 3 Finally, I would note that equal justice under law, the cornerstone of our jurisprudential system, is not advanced by granting law enforcement officers a privileged immunity from prosecution, under standards unavailable to the ordinary citizen; the delicate balance between law and order mandates greater caution. Police do have greater responsibilities, in terms of law enforcement, than the citizenry at large. But I submit that the law already affords them the exceptions necessary to carry out their function. 4 I, too, sympathize with *564 the difficult tasks confronting police officers. However, it should be remembered that defendant can, at trial, apprise the trier of fact of those considerations and raise any other defense relevant to the facts. No substantive or procedural safeguards would be denied to defendant. For the reasons stated above, I would affirm. See Michigan Standard Criminal Jury Instructions (CJI), 16:1:21. The deceased did not appear at the scene until between five and ten minutes after the police arrived. The deceased came from an area that had already been searched. All the police officers were in plainclothes and in unmarked cars. The killing took place on a very foggy spring evening. An officer who was near the defendant did not hear him identify himself as a police officer to the deceased. The deceased was walking at a normal pace when he first appeared and did not change his pace. People v Chamblis, 395 Mich 408 ; 236 NW2d 473 (1975), casts considerable doubt upon the continued vitality of the citations of the majority for the proposition that the absence of malice is a necessary element of the offense with which defendant is charged. The Supreme Court held: "Elements are, by definition, positive. A negative element of a crime is a contradiction in terms.” 395 Mich at 424 . Therefore, a finding of no legal justification or excuse in no way precludes prosecution under this statute. See, generally, Genesee Prosecutor v Genesee Circuit Judge, 386 Mich 672 ; 194 NW2d 693 (1972). For example, only a law-enforcement officer can use deadly force *564 to apprehend a person suspected of committing a felony not in the presence of that official. Furthermore, the “retreat” element of self-defense is inapplicable to police. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9723241. Public record. Not legal advice.