Docket No. 5,676.
Decided February 28, 1969.
Appeal from Genesee, John W. Baker, J. Submitted Division 2 February 10, 1969, at Detroit. (Docket No. 5,676.) Decided February 28, 1969.
Edward Eugene Stirewalt was charged with carrying a concealed weapon. Defendant's motion to quash the information granted. The people appeal. Reversed, and information reinstated.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Robert F. Leonard, Prosecuting Attorney, and Donald A. Kuebler, Assistant Prosecuting Attorney, for the people.
BEFORE: FITZGERALD, P.J., and R.B. BURNS and BRONSON, JJ.
Edward Stirewalt was arrested on January 26, 1968, and charged with carrying a concealed weapon. A preliminary examination was conducted in the municipal court for the city of Flint, and the defendant was bound over to Genesee county circuit court. On May 2, 1968, the court, ruling on defendant's motion to quash the information, dismissed the case on the ground that the weapon was not concealed. From this dismissal the prosecutor appeals.
Pursuant to CL 1948, § 770.12 (Stat Ann 1954 Rev § 28.1109).
All that the examining magistrate need find at the preliminary hearing is that an offense has been committed, and that there is probable cause that the accused committed it. The examining magistrate does not sit as a trier of fact at the preliminary examination and he need not weigh the evidence to see if there is proof of guilt beyond a reasonable doubt. People v. Spann (1966), 3 Mich. App. 444.
CL 1948, § 766.13 (Stat Ann 1954 Rev § 28.931).
In People v. Morris (1967), 8 Mich. App. 688, and more recently in People v. Jones (1968), 12 Mich. App. 293, this Court has held that absolute invisibility in carrying a concealed weapon is not required. At the preliminary hearing it was determined that a weapon was in the defendant's pocket. There was no testimony that the gun was seen by anyone until the accused turned, at the insistence of a police officer.
A trial court has no right to substitute its judgment for that of the examining magistrate except in the case of a clear abuse of discretion, even though it may not agree with the determination. People v. Medley (1954), 339 Mich. 486; People v. Delaney (1962) 367 Mich. 694.
The issue of concealment depends on the facts of the case; and whether the weapon was concealed from "ordinary observation" is a question to be determined by the trier of fact. People v. Jones, supra. Upon a review of the transcript of the preliminary hearing, there appears to be sufficient evidence to uphold the magistrate's action.
Reversed, reinstated, and remanded.