The opinion
Souris, J.
(concurring). I concur in Mr. Justice Adams’ opinion except for its inclusion of part I thereof, the detailed review of testimony taken at defendant’s preliminary examination. Our decision herein should be planted solely upon the paucity of persuasive reason offered by defendant in support of his motion to withdraw his plea, a deficiency of such magnitude that it leaves defendant’s motion bordering on the frivolous.
It seems to me that part I of Justice Adams’ opiiiion, when read with regard to the trial judge’s quoted assertions that he had read the examination testimony and had no question in his mind concerning defendant’s guilt, suggests to the bench and bar of this State that we approve such prior-to-trial determinations of guilt or innocence, based upon frequently one-sided preliminary examination testimony, as a factor to be considered in granting or denying a motion to withdraw a guilty plea. That is not permissible practice as I understand the law.
The preliminary examination has for its limited purpose only the determination by a magistrate *82 whether there is probable cause to bind the defendant over for trial; it “is in no sense a trial to determine the guilt or innocence of an accused.” People v. McLean (1925), 230 Mich 423, 425 , and cases cited therein. In its essential nature the preliminary examination is inquisitional and to function properly a very broad scope is permitted the people in their offer of proofs sufficient to satisfy the magistrate’s inquisition as to probable cause. Not infrequently, defendant offers no proofs of his own and, indeed, may not even choose to cross-examine the witnesses offered by the people. On such testimony, no proper determination of guilt should be permitted for any purpose, let alone for purpose of granting or denying a motion to withdraw a plea of guilty so that defendant’s guilt or innocence can be tried to a court or jury.
It is the clear purport of People v. Bencheck (1960), 360 Mich 430 , that such a procedure is reprehensible. This Court there noted that Bencheck had been given “a careful examination in open court wherein defendant recited the facts pertaining to the offence [statutory rape] in great detail”, and that the trial court was “obviously convinced of defendant’s guilt”. Nonetheless, we unanimously continued (p 433), “The right we deal with here is the right to a jury trial, and even what may prove a well-founded belief in defendant’s guilt on the part of the trial judge should not impede the exercise of that right.”
Other courts in other jurisdictions have reached the same conclusion. In Friedman v. United States (CCA8, 1952), 200 F2d 690, defendant tried to withdraw his plea of guilty after he was sentenced. The circuit court of appeals upheld the district court’s refusal to permit withdrawal of the plea in these terms (p 696):
*83 “The issue of the defendant’s guilt or innocence is not involved in an application for leave to withdraw a plea of guilty. Kercheval v. United States, supra, at page 224 of 274 US, at page 583 of 47 S Ct, [page 1012 of] 71 L ed 1009. Upon such an application a trial court is not required to try the issue of guilt or innocence. The issue for determination is whether the plea of guilty was voluntarily, advisedly, intentionally and understanding^ entered or whether it was at the time of its entry, attributable to force, fraud, fear, ignorance, inadvertence or mistake such as would justify the court in concluding that it ought not to be permitted to stand.”
In Kercheval v. United States (1927), 274 US 220 ( 47 S Ct 582 , 71 L ed 1009), in the course of holding inadmissible on trial evidence of a withdrawn plea of guilty, the United States Supreme Court said (p 224):
“But, on timely application, the court will vacate a plea of guilty shown to have been unfairly obtained or given through ignorance, fear or inadvertence. Such an application does not involve any question of guilt or innocence. Commonwealth v. Crapo, 212 Mass 209 ( 98 NE 702 ). The court in exercise of its discretion will permit one accused to substitute a plea of not guilty and have a trial if for any reason the granting of the privilege seems fair and just.”
See Nagelberg v. United States (1964), 377 US 266 ( 84 S Ct 1252 , 12 L ed 2d 290).
Commonwealth v. Crapo (1912), 212 Mass 209 ( 98 NE 702 ), affirmed a lower court order denying leave to withdraw a plea of guilty, f^uch a plea may be withdrawn if the “admission of guilt was not voluntary and intentional, but resulted from inadvertence.” The Massachusetts court noted (p 210) *84 that at the hearing on the motion to withdraw his plea, defendant offered no evidence, even though “at the hearing the defendant’s guilt or innocence was not in issue.”
Poole v. United States (1957), 102 App DC 71 (250 F2d 396), reversed the trial court’s order denying defendant’s request to withdraw his plea of guilty before sentencing, saying (p 75):
“An accused moving to withdraw his plea after sentence is faced with the formidable barrier of having to show that his conviction was manifestly unjust. Fed Rules Criminal Procedure, 32 (d), 18 USO p 3427. In this case, the sentencing judge erroneously placed this burden on appellant even prior to sentence when he stated to counsel at the bench: “ ‘If you find any facts that indicate he isn’t guilty, file a formal motion.’ (Emphasis added).” 250 F2d 396, 400.
See, also, Gearhart v. United States (1959), 106 App DC 270 (272 F2d 499), and Everett v. United States (1964), 119 App DC 60 (336 F2d 979).
See note, 64 Yale LJ 590, 591, n 6 (1955), for citations to Federal cases and scholarly writings in support of the statement that “Probable guilt or innocence of the accused has generally been held not to be an issue on motion for withdrawal [of guilty plea].”
T. M. Kavanagh, C. J., and Dethmers, Smith, and O’Hara, JJ., concurred with Souris, J.