LEVIN, J. (dissenting).

Johnson was bound over on a charge of open murder and convicted of second-degree murder.

At the conclusion of the preliminary examination, the magistrate declined to find whether there was sufficient evidence to bind Johnson over on a charge of first-degree murder and stated that it was sufficient that the killing was committed with malice aforethought and that Johnson would be bound over on a charge of open murder.

The magistrate reviewed the testimony concerning whether there was sufficient evidence of pre-meditation and deliberation. He quoted from People v Spalla, 83 Mich. App. 661, 665; 269 N.W.2d 259 (1978), where the Court said that the "magistrate was not required to specify the degree of murder charged, even though a request for such particularization was made by the defendant. When the charge encompasses first-degree murder the ultimate finding as to degree is for the jury." The magistrate observed that Spalla had been reversed on other grounds, People v Spalla, 408 Mich. 876 (1980), but concluded that "the law that I just stated in Spalla is the state of the law, since that particular portion of the opinion was not reversed."

Johnson's motion to quash the information was denied. The Court of Appeals affirmed Johnson's conviction and, on this aspect of the matter, relied on Spalla.

I

The lead opinion states that "[t]he `open murder' statute, MCL 767.71; MSA 28.1011, recognizes that murder is a single offense and that, at the informational stage, no specification of degree is required." (Emphasis in original.) The statute referred to provides:

In all indictments for murder and manslaughter it shall not be necessary to set forth the manner in which nor the means by which the death of the deceased was caused; but it shall be sufficient in any indictment for murder to charge that the defendant did murder the deceased; it shall be sufficient in manslaughter to charge that the defendant did kill the deceased.

I agree that an information charging open murder is not defective per se. It is a separate question whether a person who has demanded a preliminary examination and is bound over on open murder can be tried and convicted of first-degree murder unless sufficient evidence was offered at the preliminary examination to justify a finding of probable cause that he committed the offense of first-degree murder and the magistrate bound him over on such a finding.

The statute described in the opinion of the Court as the "`open murder' statute" was enacted in 1855. Then, as the language of the statute indicates, all prosecutions were by indictment. Four years later, the Legislature first provided for prosecution by information in lieu of grand jury indictment. The 1859 legislation further provided:

No information shall be filed against any person for any offense, until such person shall have had a preliminary examination therefor, as provided by law, before a justice of the peace, or other examining magistrate or officer, unless such person shall waive his right to such examination.

The Legislature did not otherwise prescribe the form of the examination. In 1927, however, as part of the Code of Criminal Procedure, the Legislature expanded upon the terse 1859 provision at some length regarding the preliminary examination.

The scope and effect of the preliminary examination was left largely to the courts to develop. The rule is well-established that there must be evidence on each element of the charged offense or evidence from which those elements may be inferred. Premeditation and deliberation are clearly elements of first-degree murder.

II

The lead opinion refers to earlier decisions of this Court, but none is controlling on the question presented. In Cargen v People, 39 Mich. 549 (1878), the defendant waived an examination, and thus nothing said in Cargen could bear on the question now presented.

In People v McArron, 121 Mich. 1; 79 N.W. 944 (1899), the Court held that the defendant could be convicted of manslaughter on an information charging murder and said that because an information for manslaughter would have been sufficient if it had averred that the defendant did kill and slay the decedent, an information charging that the defendant did kill and murder the decedent was not deficient.

In People v Treichel, 229 Mich. 303, 307; 200 N.W. 950 (1924), the question was whether the defendant could be convicted of the lesser offense of manslaughter or could only be acquitted or convicted of felony murder. In holding that he could be convicted of the lesser offense, the Court did indeed indicate that a person charged with open murder could be convicted of either degree of murder or manslaughter, but again did not address the question whether a person could be tried for a higher offense than had been established by the evidence at the preliminary examination and found by the magistrate.

In People v Simon, 324 Mich. 450, 457; 36 N.W.2d 734 (1949), the information charged murder without specifying the degree. The Court held that the verdict "guilty as charged" was defective because the jury had not ascertained the degree.

III

None of the decisions cited in the lead opinion consider the question whether a person bound over on a charge of open murder can be tried and convicted of first-degree murder absent evidence at the preliminary examination establishing the elements of the higher offense of first-degree murder and a finding by the magistrate that there is probable cause to believe that the higher offense has been committed. There being nothing in the decisions cited or in any other case that on further research we have been able to find addressing the question, I conclude that the question is not controlled by any decision of this Court.

Nor is there anything in the statutes concerning the preliminary examination enacted in 1859 or 1927 that would justify the conclusion that in providing for a preliminary examination preceding the filing of an information in lieu of a grand jury indictment, the Legislature did not intend to require that all the elements of what is probably the most serious offense known to the law of this state be established before an information could be filed. Acknowledging that an information may take the same form as an indictment, surely the Legislature did not, in enacting in 1855 the "`open murder' statute," legislate concerning the preliminary examination first provided for four years later.

We would, therefore, hold — consistent with the decisions holding or stating that a person may be tried on a charge of open murder and yet convicted of first-degree murder — that where an examination has been demanded he may be tried and convicted of first-degree murder only where the people produce sufficient evidence to establish probable cause to believe that the offense of first-degree murder has been committed and the magistrate so determined.

IV

Where the magistrate is requested to determine the degree of the offense of murder and nevertheless fails to do so, his return is defective.

In the instant case, the magistrate erroneously concluded, on the authority of People v Spalla, that he was not required to determine the degree of the offense of murder established by the evidence produced at the preliminary examination.

V

The lead, concurring, and dissenting opinions address the question whether there was sufficient evidence produced at the preliminary examination to establish premeditation and deliberation. The rule is well-established, however, that the question of probable cause is for the consideration of, and determination by, the examining magistrate and that this Court does not substitute its appraisal unless it concludes that there has been an abuse of discretion.

It has also been suggested that insufficiency of evidence at the preliminary examination can be cured by additional evidence introduced at the trial. Again the rule is well-established that where the defendant moves to quash and thereby preserves the issue and it is determined that the evidence was not sufficient, the remedy, even after conviction and without regard to the sufficiency of the evidence at trial, is to set aside the conviction and to discharge the defendant. The entry of such an order does not preclude the prosecutor from again charging the defendant and bringing him to trial.

CAVANAGH, J., concurred with LEVIN, J.

ARCHER, J.

I respectfully dissent.

FACTS

An extended relation of the evidence presented at the preliminary examination is required because of its bearing on the issues raised in this appeal. In the early morning hours of July 9, 1983, defendant and two male friends arrived at a party at the apartment of Barbara Reed, a former girlfriend of defendant. Her guests had been drinking and were intoxicated. According to Barbara Reed's testimony, defendant wanted to talk with Rick Urbina, who was in the bathroom talking to Roy Tower, the manager of the apartment building.

Reed and the defendant went into the bathroom. There were conflicting versions of testimony as to how the altercation at issue ensued; it started, apparently, when the victim, Tower, got upset because Ms. Reed landed in the bathroom, either from stumbling or having been shoved in. Witnessing Reed's landing, Tower stepped forward and inquired of the defendant what was going on, and, according to one witness, Tower used profanity when making his inquiry. Defendant testified that the victim drew a hunting knife, and while holding it at shoulder height, advanced toward defendant. Urbina testified that defendant entered the bathroom, pulled and opened his knife, told Tower, "Come on, mother-fucker," stabbed him, backed him up against the wall inside the tub, and stabbed him again around the chest area. Urbina also testified that the victim had a knife, but that he never took it out of the case inside his pants. Reed, however, corroborated defendant's version that the victim had a knife in his hands.

According to testimony by one party guest who observed the incident while standing by the bathroom door, defendant had his hand in his right pocket, where the knife was located, from the time he entered the apartment until he opened the knife and went after the victim. The testimony of the witnesses varied as to the time lapse between defendant's entrance to and exit from the bathroom. All agreed that the entire incident happened within seconds, except Reed who admitted that she was not good at estimating time.

It is undisputed that defendant stabbed the victim during the altercation in the bathroom and that the victim died from a stab wound to the heart. Although there was testimony that the victim was at some point, standing in the bathtub, it is unclear as to whether he retreated there or was shoved there in an attempt to allow the defendant time to retreat. There were, according to the pathologist, three stab wounds to the victim's chest, a wound on the back of the right buttock, plus several very tiny cut wounds on the upper extremities. The pathologist could not determine if these minor wounds occurred during the course of the bathroom, incident. Only the chest wound to the heart was fatal; the other wounds "were of a relatively trivial nature." There were no wounds found on the defendant. None of the victim's wounds were defensive wounds. The pathologist further testified that, upon the basis of his examination of the body, he could reach no conclusion as to whether defendant or Tower had been the aggressor. It appears from the testimony that the victim was a tall, slender male. Defendant is a larger-built man.

Although defendant had known Rick Urbina, there was uncontroverted testimony that he was a total stranger to the victim before the occurrence in the bathroom. Defendant was not intoxicated. The victim was intoxicated, with a blood alcohol level of 0.14.

I

Defendant claims that the Court of Appeals erred in holding that the charge of open murder does not violate equal protection or procedural due process principles. He contends that, as a class, those charged with homicide in Michigan under the open murder statute, MCL 767.44; MSA 28.984, are treated differently. The prosecutor need not show all the elements of an offense at a preliminary examination in order to secure a bind-over order on a charge of open murder. Yet, according to defendant, there appears to be no rational basis for the disparate treatment afforded those charged with murder.

Michigan courts have long recognized the propriety of the open charge of murder. Brownell v People, 38 Mich. 732 (1878); Cargen v People, 39 Mich. 549 (1878); People v Davis, 343 Mich. 348; 72 N.W.2d 269 (1955); People v McKinney, 65 Mich. App. 131; 237 N.W.2d 215 (1975). Statutes similar to Michigan's "open murder" statute have been found to be constitutional and not violative of defendant's federal due process rights. Bergemann v Backer, 157 U.S. 655; 15 S Ct 727; 39 L Ed 845 (1895); Kohl v Lehlback, 160 U.S. 293; 16 S Ct 304; 40 L Ed 432 (1895). In 1895, when stating that open murder indictments, or their equivalent at that time, were consistent with the due process of law required by the Fourteenth Amendment of the United States Constitution, the United States Supreme Court cited a New Jersey Chief Justice's reasoning:

[A]n indictment charging, in a general form, the perpetration of a murder, without indicating which of the two felonies into which that offense was divided by the statute, was sufficient to fulfill the constitutional requirement of informing the defendant of the nature and cause of the accusation against him. The effect of the statute . . . was neither to add any case to nor take any case from the class of crimes which, at common law, was denominated murder, for every act that was murder at common law was still murder in New Jersey. What the statute effected . . . was to distribute the offense into two classes for the sake of adjusting the punishment. [ Bergemann v Backer, at 657, citing Graves v State, 45 N.J.L. 203 (1894). Accord People v Potter, 5 Mich. 1 (1858); People v Scott, 6 Mich. 287 (1859).]

Michigan's "open murder" statute provides in pertinent part:

The following forms may be used in the cases in which they are applicable but any other forms authorized by this or any other law of this state may also be used:

* * *

Murder — A.B. murdered C.D.

Manslaughter — A.B. killed C.D.

Neither the complaint nor the information charged the defendant with "open murder" under MCL 767.44; MSA 28.984. Rather, both documents charged the defendant with murder pursuant to Michigan's first-degree murder statute, MCL 750.316; MSA 28.548, which provides, in pertinent part:

Murder which is perpetrated by means of . . . wilful, deliberate, and premeditated killing, . . . is murder of the first degree, and shall be punished by imprisonment for life.

While the magistrate's bind-over order and the trial court's denial of defendant's motion to quash the open murder charge, on the basis of a showing of no premeditation or deliberation, made it necessary for the defendant to defend first-degree murder, there was no denial of due process. The open murder charge sufficiently informed the defendant of the nature and cause of the accusations against him. The Due Process Clauses of the federal and state constitutions do not require a preliminary examination in criminal proceedings. People v McCrea, 303 Mich. 213; 6 N.W.2d 489 (1942). There was no due process violation. The open murder charge allowed a distinction in the murder charge with a view to a difference in punishment between the most heinous and the less aggravated grades of the same crime. Due process guarantees are limited:

While it is clear that our society has willingly chosen to bear a substantial burden in order to protect the innocent, it is equally clear that the risk it must bear is not without limits. . . . Due process does not require that every conceivable step be taken, at whatever cost, to eliminate the possibility of convicting an innocent person. Punishment of those found guilty by a jury, for example, is not forbidden merely because there is a remote possibility in some instances that an innocent person might go to jail. [ Patterson v New York, 432 U.S. 197, 208; 97 S Ct 2319; 53 L Ed 2d 281 (1977).]

Although I conclude that the charge of open murder does not violate any procedural due process principles, it raises serious questions of equal protection, as defense counsel in this case ably argues, in that a defendant charged under "open murder" is treated differently than persons charged with other felony offenses. MCL 766.4; MSA 28.922, the statute which sets forth the basic right to a preliminary examination, makes no distinction between murder and other felonies. Yet, as a class, those bound over in Michigan under the open murder statute, MCL 767.44; MSA 28.984, are treated differently.

When charging any other felonies, the prosecuting attorney must show at the preliminary examination evidence on each element of the offense in order to bind the defendant over. If he fails to do so, the defendant can only be bound over on such offense as may be supported by the evidence produced. See People v Smith, 49 Mich. App. 630; 212 N.W.2d 768 (1973) (LEVIN, J., dissenting). Proofs upon which to base the findings required by the statute must be introduced at a preliminary examination to justify binding over to circuit court for trial. People v Asta, 337 Mich. 590, 611; 60 N.W.2d 472 (1953). Although at preliminary examination positive proof of guilt is not required, there must be some evidence on each element of the crime charged, or some evidence from which those elements may be inferred. People v Goode, 106 Mich. App. 129; 308 N.W.2d 448 (1981), lv den 413 Mich. 866 (1982). Such is not the case with the open murder charge.

Of those charged with murder, if the charge is first-degree murder, the prosecution must show evidence of premeditation and deliberation at the examination stage, or the matter may not be bound over on a charge of first-degree murder. People v Oster, 67 Mich. App. 490; 241 N.W.2d 260 (1976); People v Mathis (On Remand), 75 Mich. App. 320; 255 N.W.2d 214 (1977) (HOLBROOK, J., dissenting). However, for those charged under the open murder statute, Michigan case law holds that no evidence of deliberation or premeditation must be shown. See, e.g., People v Spalla, 83 Mich. App. 661; 269 N.W.2d 259 (1978), People v Melvin, 70 Mich. App. 138; 245 N.W.2d 178 (1976), and People v Strutenski, 39 Mich. App. 72; 197 N.W.2d 296 (1972). Because it is for the jury to determine the degree of murder committed, Spalla, Melvin, and Strutenski do not require the district judge or magistrate to determine the degree of murder at preliminary examination. However, there appears to be no rational basis for the holding, when it applies only to open murder informations.

The lead opinion buries in a footnote that the "Legislature may well have had a simple pragmatic reason for allowing informations charging murder without specification of degree: the difficulty of obtaining hard evidence of premeditation and deliberation at an early stage — within twelve days of arraignment on the complaint — of the criminal prosecution." This "simple pragmatic reason" is insufficient when the constitutional guarantee of equal protection is at stake.

While we agree with the lead opinion that the federal constitution does not require a preliminary examination as a condition precedent to prosecution by filing of an information, Gerstein v Pugh, 420 U.S. 103; 95 S Ct 854; 43 L Ed 2d 54 (1975), we also note that in Michigan, the right of a defendant to a preliminary examination is a "fundamental right in most criminal cases," People v Duncan, 388 Mich. 489, 502; 201 N.W.2d 629 (1972). The United States Supreme Court has also found the preliminary examination to be a "critical stage" in criminal proceedings. Coleman v Alabama, 399 U.S. 1, 9; 90 S Ct 1999; 26 L Ed 2d 387 (1970). This Court has also previously held that Michigan's constitutional guarantee of equal protection is committed to the standards of the Fourteenth Amendment. Wolodzko v Wayne Circuit Judge, 382 Mich. 528; 170 N.W.2d 9 (1969); Moore v Spangler, 401 Mich. 360; 258 N.W.2d 34 (1977); Green v Court Administrator, 44 Mich. App. 259; 205 N.W.2d 306 (1972).

As the Court of Appeals stated in People v Perkins, 107 Mich. App. 440, 443; 309 N.W.2d 634 (1981):

Equal protection analysis requires an initial determination of the proper test to be applied. If the statute affects a fundamental interest or makes an inherently suspect classification, a strict scrutiny test is appropriate and the statute will not be upheld unless the classification is justified by a compelling state interest. Absent a fundamental interest or suspect classification, the alternative test places the burden on the party challenging the statute to show that the classification is arbitrary and not reasonably or rationally related to the object of the legislation. McAvoy v HB Sherman Co, 401 Mich. 419, 452-454; 258 N.W.2d 414 (1977), People v Schmidt, 86 Mich. App. 574, 578; 272 N.W.2d 732 (1978).

While murder suspects have not yet been treated as a "suspect classification" requiring heightened judicial scrutiny for equal protection purposes, see Marshall v United States, 414 U.S. 417; 94 S Ct 700; 38 L Ed 2d 618 (1974), differences in treatment of criminal offenders must, at least, bear some rational relationship to a legitimate state end. People v O'Donnell, 127 Mich. App. 749, 757; 339 N.W.2d 540 (1983), lv den 418 Mich. 940 (1984); see McDonald v Bd of Election Comm'rs, 394 U.S. 802, 809; 89 S Ct 1404; 22 L Ed 2d 739 (1969). The lead opinion asserts that several rational bases can be "imagined," yet it suggests only three possible, but not plausible, reasons for allowing open murder informations, and then gives us absolutely no authority for them. Even applying the rational basis test, I can surmise no circumstances which would justify handling a murder case involving a charge under the open murder statute any differently than one involving a charge under the first-degree or second-degree statute.

The reasoning submitted by the lead opinion for allowing informations charging murder without specificity of degree does not carry the state's burden of a rational relationship to a legitimate state end. The language of both US Const, Am XIV, § 1 and Const 1963, art 1, § 2 makes it clear that disparate treatment of persons under the law is unconstitutional. Since there is a serious question as to whether there is a rational basis for the discrepancy in treatment afforded those charged under the first-degree murder statute and the open murder statute, the open murder statute should fail as a result of the violation of defendant's right to equal protection of law. See Walls v Director of Institutional Services, 84 Mich. App. 355; 269 N.W.2d 599 (1978), and Mitchell v Johnson, 488 F.2d 349 (CA 6, 1973).

In approving of and defending the constitutionality of open murder warrants and complaints, but not open murder informations, it would be this Court's duty to give the statute only a narrowing construction so as to render it totally constitutional. As noted in O'Donnell, supra:

It is well established that legislative enactments are cloaked with a presumption of constitutionality. Where a statutory provision would otherwise be unconstitutional, it is the Court's duty to give the statute a narrowing construction so as to render it constitutional if such a construction is possible without doing violence to the Legislature's intent in enacting the statute. People v McQuillan, 392 Mich. 511, 536; 221 N.W.2d 569 (1974); Nunn v George A Kantrick Co, Inc, 113 Mich. App. 486, 491; 317 N.W.2d 331 (1982). [ 127 Mich. App. 757.]

Notwithstanding the unconstitutionality of open murder informations, we believe the better course is to exercise the inherent power of this Court to deal with the situation as a matter of criminal procedure, as was done in People v Duncan, supra, and People v Bellanca, 386 Mich. 708; 194 N.W.2d 863 (1972). The courts should not grapple with finding a constitutional question, when the case can be decided on other grounds. See Ashwander v Tennessee Valley Authority, 297 U.S. 288, 341-356; 56 S Ct 466; 80 L Ed 688 (1936) (Brandeis, J.); United States v Lovett, 328 U.S. 303, 320; 66 S Ct 1073; 90 L Ed 1252 (1946) (Frankfurter, J., concurring); Nowak, Rotunda Young, Constitutional Law (3d ed), § 2.12, pp 86-87; Taylor v Auditor General, 360 Mich. 146, 154; 103 N.W.2d 769 (1960). This Court has long held that the constitutionality of statutes will not be passed upon where the case can be determined without doing so. Powell v Eldred, 39 Mich. 552 (1878).

Although we approve of and defend open murder warrants and complaints, we have nonconstitutional concerns of the adverse effect that befalls a defendant under an open murder charge after proofs have been presented at the preliminary examination.

When bound over on a charge of open murder, particularly in a case in which there is no evidence of deliberation and premeditation, a defendant must nonetheless prepare to defend first-degree murder as well as lesser-included offenses. Because it carries the greatest penalty, a significant amount of time must be allotted to the defense of the first-degree murder charge, leaving a lesser amount of time to devote to the lesser-included offenses. Because of the severity of the offense and the penalty it carries, a defendant charged with murder should be provided with greater procedural safeguards than those charged with a more minor offense. The probabilities of unfair surprise, inadequate notice, and insufficient opportunity to defend, all relevant to a defendant's right to a fair opportunity to meet the charges against him, are affected, even if not to the point of a constitutional violation.

Currently, the defendant can be bound over on the open murder charge, which includes first-degree murder, even though the facts adduced at the preliminary examination may only show a manslaughter or second-degree murder. The most egregious aspect of this procedure is that when a defendant is bound over on a charge of open murder without a showing of premeditation or deliberation, the magistrate has carte blanche to engage in factfinding concerning elements that have no proof.

As a less onerous alternative to the "open murder" information, a defendant may be charged in a complaint and warrant with "open murder," accord People v Spells, 42 Mich. App. 243; 201 N.W.2d 676 (1972), but the defendant is to be bound over on a specific degree of murder after proofs are presented at the preliminary examination. Several Court of Appeals decisions have been in harmony with this approach. People v Juniel, 62 Mich. App. 529, 533-538; 233 N.W.2d 635 (1975); People v Oster, supra at 494-498; People v Johnson, 105 Mich. App. 498, 502; 307 N.W.2d 357 (1981). These cases required proof of premeditation and deliberation at the preliminary examination before the defendant could stand trial for first-degree murder even though the prosecution elected to charge open murder pursuant to the statutory short form. This requirement is also in accord with the language of the "open murder" statute itself, for the statute speaks only to the form of the charging document, not to the prosecutor's burden at preliminary examination. The lead opinion concedes that the information depends upon the bindover for the possible charges, ante, p 105, which is consistent with our view.

The requirement that a defendant be charged with a specific degree of murder after presentation of the proofs at a preliminary examination gives both the defendant and the prosecution ample time (twelve extra days) to investigate the matter. Both parties may then come forward with sufficient proofs to enable the magistrate to make a more informed decision as to whether there is probable cause to believe premeditation or deliberation is evident.

Specification at bindover also gives the defendant the benefit of concentrating his energies and resources on preparation of the defense against the degree of the charge the prosecutor will pursue at trial as reflected in the bill of particulars. The specific-degree requirement will assist the district court in its function, which is to bind over to circuit court. The requirement will also assist the circuit court, since the circuit court's jurisdiction is limited to the offense specified in the return of the examining magistrate. People v Curtis, 389 Mich. 698; 209 N.W.2d 243 (1973).

The lead opinion implies that requiring the degree of murder to be specified at bindover departs from a century of judicial recognition of the use of murder charges of unspecified degree and unhinges the judicial process. Our decision today does not disallow complaints and warrants charging murder without specification of degree. While we defend the constitutionality of an "open murder" complaint and warrant, we now require the prosecutor to do no more than if served with the bill of particulars, but to do it before the magistrate's gavel has landed.

The lead opinion further asserts that the procedural implementation of having the prosecutor supply a bill of particulars after the "open murder" information is used, assures that the defendant will have adequate notice in advance of trial of both the charge, and the factual basis underlying the alleged offense. However, specification of degree at bindover allows the defendant the opportunity to be heard prior to the leveling of the charge, before it is too late for the defendant to do anything about the charge as laid. Technically, the prosecutor would currently be required to supply the bill of particulars days after the examination, if seasonably requested by the defendant. The lead opinion, therefore, criticizes a common-sense approach which does not substantially change the burden of the prosecutor.

In cases where the defendant waives preliminary examination, the defendant would be required to request a bill of particulars within a reasonable time period. Upon defendant's request for a bill of particulars, the prosecution must determine and advise the defendant of the specific degree of murder on which he is to be tried:

[T]he prosecuting attorney, if seasonably requested by the respondent, shall furnish a bill of particulars setting up specifically the nature of the offense charged. [MCL 767.44; MSA 28.984. Emphasis added.]

More than a century ago, (even before our laws progressed to the point of requiring degree-specified murder) this Court recognized the importance of the magistrate's responsibility to determine the degree of an offense, when, as in this case, the offense charged includes one or more of lesser degree. In Yaner v People, 34 Mich. 286, 289 (1876), this Court discussed and ruled upon the forerunner of the current statute providing for the procedure the magistrate is to use when discharging or binding a defendant over for trial. In doing so, this Court stated:

The clear evident intent of this statute was, that the magistrate should exercise his best judgment in the matter; that he should from the testimony determine whether the crime charged in the warrant had been committed, or where, as in this case, the offense charged includes one or more of lesser degree, the magistrate should determine which offense, if any, had been committed, so that the accused might not be placed upon trial in the circuit to answer to a charge different or greater than the one upon which he had been examined, and to answer which he had been held for trial. If this were not so we would have the magistrate binding over for one offense, and the prosecuting attorney filing an information for another or different one, or the magistrate binding over to answer to an offense of one degree, and the prosecuting attorney filing an information for a like offense of a higher degree. In either case the offense charged in the information would be one not authorized by the examination. . . . [Emphasis added.]

The decisions in Spalla, Melvin, and Strutenski, supra, holding that the magistrate is not required to specify the degree of murder in an "open murder" charge is in direct contradiction with Yaner, and subjected the defendant to the unfair position of being placed on trial to answer to a greater charge (first-degree murder) than the one in which he had been examined, wherein only the element of malice was shown.

II

Defendant also claims that the finding by the examining magistrate that there was sufficient evidence of premeditation and deliberation to bind over on an open charge of murder deprived him of a fair trial, requiring reversal of his conviction. Defendant argues that the prosecutor failed to prove at the preliminary examination that defendant killed Tower with premeditation and deliberation. Consequently, defendant contends he was a victim of a compromised jury verdict, which resulted in a higher level of conviction than the one the jury would have entered if the case had been properly bound over.

At the preliminary examination the prosecution must show evidence on each and every element of the offense charged in order for the magistrate to bind the defendant over for trial on that charge. People v Charles D Walker, 385 Mich. 565; 189 N.W.2d 234 (1971); People v Asta, 337 Mich. 590; 60 N.W.2d 472 (1953). Positive proof of an intent to kill is not required; rather, there need only be evidence of an intent to kill or evidence from which an intent to kill may be inferred. People v Moore, 129 Mich. App. 354; 341 N.W.2d 149 (1983); People v Doss, 406 Mich. 90; 276 N.W.2d 9 (1979); People v Oster, 67 Mich. App. 490, 495; 241 N.W.2d 260 (1976), lv den 397 Mich. 848 (1976).

In determining whether there was evidence presented at the preliminary examination from which an inference of premeditation and deliberation in the killing can be drawn, we have phrased the inquiry as follows:

[t]o think about beforehand

* * *

[t]o measure and evaluate the major facets of a choice or problem

* * *

[a] thought process undisturbed by hot blood

* * *

[t]he interval between initial thought and ultimate action should be long enough to afford a reasonable man time to subject the nature of his response to a "second look." [ People v Vail, 393 Mich. 460, 468-469; 227 N.W.2d 535 (1975), as quoted in People v Oster, supra at 496-497.]

Types of evidence to be considered from which premeditation and deliberation may be inferred include the prior relationship between the parties, whether the murder weapon had been acquired or positioned in preparation for the homicide, the immediate circumstances of the killing, and the defendant's post-homicide conduct. People v Alexander, 76 Mich. App. 71; 255 N.W.2d 774 (1977); People v Oster, supra at 497; People v Berthiaume, 59 Mich. App. 451, 459; 229 N.W.2d 497 (1975).

Generally, evidence sufficient to sustain a finding of premeditation and deliberation falls into three basic categories: (1) evidence which shows defendant had been engaged in planning the killing, (2) evidence establishing a motive for the killing, and (3) evidence that the nature of the killing was such that the defendant must have intentionally killed according to a preconceived design to take his victim's life in a particular way. People v Scotts, 80 Mich. App. 1, 10; 263 N.W.2d 272 (1977); People v Oster at 497.

The prosecution's argument at the preliminary examination, in pertinent part, was as follows:

I submit that the period of seconds of time during which this thing occurred, by every witness's account, it was not instantaneous, a one-shot deal, if you will. It was not like pointing a gun, pulling the trigger — or havin' a gun even held at one side pointing at someone and then just accidentally or instantaneously pulling the trigger. Here we have, I submit the proofs show, a conscious pulling out of a knife, opening the blade up, there is passage of time there. There is testimony here, although it differs, there is testimony that their words were exchanged. It was either "Come on" or something to that effect or, "You want some of this, too?" Those words, and then again there is a passage of an appreciable period of time — which could be a second or two seconds or whatever — before the Defendant stuck it or stabbed the victim the first time. And then if you add that with Barb Reed, ultimately the victim, apparently retreated, and then received at least a second wound and the third and et cetera, et cetera.

* * *

But, first, I think the Court has got to decide, and that obviously would be independent of ultimately what I say or what Mr. McKaig says, whether or not there was time for pre-meditation presented by the facts, and whether or not there was time for the Defendant to take a second look. I submit that the time for one to get a knife out, open it up, before stabbing someone, or ultimately lunging or however you want to characterize it, going across to stab him, there is time for a second look there, and it's not just an instantaneous unreflected, not-deliberate act; that there was deliberation and there was time to reflect, and it was, indeed, pre-meditated. So we would request, first of all, a bind-over on First Degree, and if the Court differs in its opinion at least to what the facts are, then at the minimum, the bind-over should be on Second Degree, which is basically the same elements with the exception of the absence of the pre-mediation or deliberation. [Emphasis added.]

Absent a showing of clear abuse of discretion, this Court will not reverse a magistrate's finding of probable cause. People v Doss, supra at 101; People v Dellabonda, 265 Mich. 486, 491; 251 N.W. 594 (1933); People v Paille #2, 383 Mich. 621; 178 N.W.2d 465 (1970).

Weighing the evidence presented at preliminary examination in the instant case against the considerations outlined in Vail, Berthiaume, and Oster, we conclude that the magistrate clearly abused his discretion in binding defendant over on "open murder" on the basis of a finding of premeditation and deliberation. There was no evidence of planning or motive. The defendant and Tower did not even know each other. The facts that a knife was used and that wounds were inflicted to the heart, a vital part of the body, do not raise an inference of premeditation. Oster at 497; People v Hoffmeister, 394 Mich. 155, 159; 229 N.W.2d 305 (1975). Use of a lethal weapon alone is insufficient to find premeditation and deliberation. People v Bargy, 71 Mich. App. 609; 248 N.W.2d 636 (1976). There was no evidence that defendant "acquired or positioned" his knife with the thought beforehand to kill Tower. Shortly after the incident, defendant told one of his party companions that the victim had jumped him and he had to defend himself.

Evidence that the fighting between the defendant and the victim had ended, that the defendant was in control of the situation, or that the victim was in retreat before defendant pulled out the knife is supportive of a finding of premeditation and deliberation. See People v Tilley, 405 Mich. 38; 273 N.W.2d 471 (1979). There was no such evidence presented here.

Finally, defendant's post-homicide conduct in leaving the scene and disposing of his shoe could be consistent with premeditation and deliberation. Leaving the scene of a crime and disposing of one's shoe, however, are just as consistent with an unpremeditated murder. Defendant's subsequent actions could have been the result of panic, especially in light of his steadfast contention that he was in fear of the victim's wielding knife. "Although these actions may be indicative of defendant's post-murder state of mind, they suggest little or nothing about his thoughts before or during the murder." People v Williams, 422 Mich. 381, 405; 373 N.W.2d 567 (1985) (CAVANAGH, J., dissenting, joined by LEVIN, J.); Hoffmeister at 161, n 7; People v Morrin, 31 Mich. App. 301, 332; 187 N.W.2d 434 (1971), lv den 385 Mich. 775 (1971).

The prosecution's argument that premeditation could be inferred from the evidence that, while getting the knife out, opening it up, and ultimately lunging across to stab the victim, the defendant had made a conscious decision to murder the victim, is improbable. One cannot instantaneously premeditate a murder. People v Jesse Smith, 81 Mich. App. 190, 199; 265 N.W.2d 77 (1978); People v Meier, 47 Mich. App. 179, 191; 209 N.W.2d 311 (1973). A sufficient time lapse to provide an opportunity for a second look may be merely seconds, minutes, hours, or more, depending on the totality of the circumstances surrounding the killing. Jesse Smith at 199. In light of the other circumstances surrounding this killing, two seconds were not sufficient time for a "second look." It strains the imagination to conclude that two seconds would be sufficient for the defendant, who did not know the victim, to form the intent to kill, to deliberate on such intention, and to conduct the act itself. Additionally, there was no evidence of a plan to kill Tower.

The time span necessary to establish premeditation and deliberation must occur between the initial homicidal intent and the ultimate action. People v Hoffmeister, supra. It would be a perversion of terms to apply the term "deliberate" to any act which is done on a sudden impulse, for example when a homicide occurs during a sudden affray. People v Tilley, supra at 44-45; Nye v People, 35 Mich. 16, 19 (1876). Virtually all of the evidence adduced at preliminary examination suggests the killing occurred as a response to circumstances which defendant was presented with upon his entry into the bathroom. There is no basis in this record for an inference that defendant, in a cool state of mind, measured, evaluated and subjected his responses to a "second look" in between the stab wounds. Hoffmeister, at 159.

Notwithstanding the reasons and supporting case law cited above, the lead opinion asserts that the lapse of time between attacks, the use of a knife, and the alleged pursuit of the retreating victim, infers premeditation and deliberation. The lead opinion states that the magistrate recognized that pursuit of a fleeing victim can indicate premeditation and deliberation. Had the magistrate articulated that he found premeditation and deliberation upon the basis of such testimony, such an inference might well be proper. However, at bind-over the magistrate stated:

I do find that there was a murder committed by Mr. Johnson in his hand with a knife, and that because the weapon being used was that of — the murder was committed with malice, and the matter will be sent to Circuit Court for trial on the charge of Open Murder, based upon the testimony received at this Preliminary Examination. [Emphasis added.]

The magistrate's comments do not indicate that he found premeditation, but only that he found malice and was compelled to rely on Strutenski and its progeny when he held that the "Magistrate [is] not required to specify the degree of murder" on an open murder charge.

The harmless-error doctrine recognizes that the central purpose of a criminal trial is to promote "public respect for the criminal process by focusing on the underlying fairness of the trial rather than on the virtually inevitable presence of immaterial error." Delaware v Van Arsdall, 475 U.S. 673, ___; 106 S Ct 1431, 1436-1437; 89 L Ed 2d 674, 685 (1986).

An appellate court attempting to apply harmless-error analysis under Michigan's current open murder rule is faced with a formidable burden. It must conclude that having a defendant defend on a charge of first-degree murder without the benefit of a showing of premeditation and deliberation at the preliminary examination was not prejudicial. The appellate court may also have to conclude beyond a reasonable doubt that the failure to show those same elements did not prejudice the defendant at trial. We think a court can make such a determination only in the rarest of circumstances, and a rule of reversal per se is therefore justified. See Delaware v Van Arsdall, supra (Marshall, J., dissenting).

Even if we use the standard proposed by the lead opinion — reasonable probability that the error affected the outcome of the trial — defendant's conviction should be reversed. A compromise verdict clearly indicates that the outcome of the trial was affected.

Moreover, when a higher charge, not warranted by the proofs, is submitted to the jury, "there is always prejudice because a defendant's chances of acquittal on any valid charge [are] substantially decreased by the possibility of a compromise verdict." Vail at 464. This Court long ago recognized the jury's tendency to compromise under such circumstances:

[I]t is evident to most practitioners of experience that it would be much easier to secure an acquittal if the defendant were only charged with the lesser offense than it would be were he charged with all three offenses. The tendency of jurors is to compromise their differences. Where there is only one charge they are obliged to meet the question squarely by yes or no, or disagree, but where the charges are three, the juror who thinks there should be no conviction, and the juror who thinks that a conviction should be had of the greater offense are quite liable to agree upon a conviction of the lesser offense. [ People v Gessinger, 238 Mich. 625, 628; 214 N.W. 184 (1927), cited with approval in Vail at 463-464.]

See People v Gill, 43 Mich. App. 598; 204 N.W.2d 699 (1972); see also People v Hansen, 368 Mich. 344; 118 N.W.2d 422 (1962); People v Stahl, 234 Mich. 569; 208 N.W. 685 (1926).

We, therefore, conclude that the examining magistrate abused his discretion in binding the defendant over to the circuit court on open murder on the basis of premeditation and deliberation and that the defendant was harmfully prejudiced by a compromised verdict. Accordingly, we would reverse.

III

Lastly, defendant claims that the trial court deprived him of the right to interpose the defense of self-defense by disallowing conclusory testimony as to his fear and apprehension at the time of the alleged incident. On direct examination, the pertinent colloquy was as follows:

Q. Now, you just said trying to take the knife, what did you mean by that?

A. What I mean, I grab his hand. The man is going to stab me with the knife.

Mr. Gabry: Objection, Your Honor. It calls for a conclusion.

Mr. McKaig: Your Honor, I believe that other witnesses have been allowed to testify that they thought Mr. Tower was trying to get away, and I think this is absolutely a conclusion that is proper given the defense of self-defense.

[ The] Court: But you're on direct exam. And under the rules of evidence he cannot testify as to a conclusion on direct examination.

Mr. McKaig: Your Honor, I would like the record to note I take exception to the court's ruling based on the notion that we feel the defendant ought to be allowed to testify as to what he was thinking and what his thoughts were at the time this was happening.

[ The] Court: There's a rule of evidence that prohibits you from asking on direct examination of drawing conclusions. So stick with the rules of evidence, Mr. McKaig.

The objection is sustained.

With regard to the trial court's ruling, the Court of Appeals, in its unpublished opinion, said:

Had the trial court's ruling stood alone without any further testimony regarding defendant's state of mind or belief when he was allegedly attacked by the deceased in the bathroom, error would have occurred. MRE 701 allows opinion testimony of a lay witness if it is rationally based on the witness' perception and if helpful to determination of a fact in issue. Similarly, MRE 704 states that an opinion on an ultimate issue is not objectionable. The reasonableness of Defendant's belief that he was about to be stabbed and acted in self-defense was the key element in defendant's defense. Indeed, only defendant could describe what he felt and what he perceived was about to happen.

We agree with the Court of Appeals. An "opinion" is an inference or conclusion drawn by a witness from the facts. Dudek v Popp, 373 Mich. 300; 129 N.W.2d 393 (1964). Opinion testimony regarding the fears of the defendant is admissible as a self-defense theory. Brownell v People, supra; People v Lilly, 38 Mich. 270 (1878).

Since an opinion includes a conclusion pursuant to MRE 701, the trial court's ruling disallowing defendant's conclusory statement as to his fear and apprehension, was in error. However, such error was harmless in light of the additional testimony presented by defendant regarding his state of mind and belief when he was allegedly attacked in the bathroom by Tower. In reviewing the record, we found, in addition to the testimony already noted, further testimony presented by defendant concerning the circumstances as they were perceived by him, and supporting his claim of self-defense, including the following:

A. When he made advances towards me, which we were very close — it's a small bedroom — he made advances towards me.

A. Bathroom.

Q. Can you tell the jury how he held the knife?

A. Yeah. It was in this position about shoulder height.

A. Well, when he made his advances I had to get ahold to him.

* * *

Q. And when you say you wrestled with him, if you can, describe what you're talking about?

A. I'm speaking of him trying to take the knife, trying to stab you with the knife. I got his hand. And he's scuffling to get loose, and I'm scuffling to hold him until I find room to run.

* * *

A. Well, when I got a chance, after we had wrestled around in there, falling against the walls and whatever, my arm didn't want to last with me any longer.

A. My injured arm. It had give out on me. Q. What happened then?

A. Well, I shoved him toward the bath tub.

Q. OK.

A. I tried to shove him in the bath tub.

Q. What happened then?

A. Well, I succeeded. He went into the shower doors, and the shower doors went over in with him, making a loud crashing noise.

A. I tried to run out of the bathroom.

Q. Did you get out of the bathroom?

A. No. The door was blocked.

* * *

Q. ( Mr. McKaig) Henry, I want to back you up again to the point where you first saw Mr. Tower with the knife in his hand.

Q. What did you think when you saw it?

A. The only thing I could think was I was fixing to get cut.

* * *

Q. And you pushed him into the bath tub?

A. Yes.

Q. When he went in the bath tub, Henry, what happened?

* * *

Q. Now, what did you do when you found you couldn't get out of the bathroom?

A. Well, I was scared. And I turned back and faced — I didn't want my back to Mr. Tower with that knife.

A. I didn't want to get stabbed or cut. I couldn't get out so I had to face him. Maybe there's a chance to grab ahold of him again.

* * *

Q. Tell the jury if he still had the knife.

A. Yes, he had the knife.

Q. What happened then?

A. I couldn't get out. So I got ahold of him, again. And we went through the same process all over again, scuffling around in there and slamming against the walls and whatever. I tried to make him lose the knife, but I was unsuccessful at that.

* * *

Q. Now, Henry, what was your state of mind at the time all this was going on?

A. I couldn't exactly explain the state of my mind to anybody because I was really shook up. I was nervous, nearly out of my mind. I was frightened, bad.

* * *

Q. You were pretty frightened in the bathroom, were you not?

Q. This person that you never knew for some reason pulled this, what's been referred to, pig sticker out?

Q. You didn't even know the man, right?

A. I didn't.

Q. You have no motive that you can think of why he would want to just get you with that knife?

Q. So you struggled and you finally escaped, and it's your testimony on direct examination, is it not, that you realized you lost your shoe and you started to go back up?

To prove self-defense, the defendant must present sufficient evidence to show that (1) the defendant honestly believed that he was in danger, (2) the degree of danger which must be feared is serious bodily harm or death, and (3) the action taken by the defendant must have appeared at the time to be immediately necessary. People v Deason, 148 Mich. App. 27; 384 N.W.2d 72 (1985). The Court of Appeals had sufficient basis upon which to believe there was enough evidence put before the jury by defendant concerning his impressions, his ability to escape, and the degree to which he felt himself threatened to make a conclusion as to whether defendant acted in self-defense.

We, therefore, conclude that defendant's last claim of error is without merit.