PEOPLE OF MI V TANNICA HENRY
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
September 26, 1997
Plaintiff-Appellant,
v
No. 195385
Recorder’s Court
LC No. 96-002650
TANNICA HENRY,
Defendant-Appellee.
Before: Markman, P.J., and McDonald and Fitzgerald, JJ.
PER CURIAM.
After a preliminary examination, defendant, Tannica Henry, was bound over for trial on charges
of second-degree murder for the shooting of her husband, MCL 750.317; MSA 28.549, and
possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2).
Defendant then moved to quash the information, the trial court granted defendant’s motion and the case
was dismissed without prejudice. The prosecutor now appeals as of right from the trial court’s order
granting defendant’s motion to quash the information. We reverse and remand with instructions to bind
defendant over for trial on charges of second-degree murder and felony-firearm.
In reviewing a trial court’s decision regarding a motion to quash an information, this Court
determines whether the district court abused its discretion in binding the defendant over. People v
Peebles, 216 Mich App 661, 664; 550 NW2d 589 (1996). Although a reviewing court may not agree
with the findings of the magistrate, it has no right to substitute its judgment absent a clear abuse of
discretion. See People v Doss, 406 Mich 90, 101; 276 NW2d 9 (1979). An abuse of discretion
occurs only when the result is “so palpably and grossly violative of fact and logic that it evidences not
the exercise of will but perversity of will, not the exercise of judgment but defiance thereof, not the
exercise of reason but rather of passion or bias.” People v Talley, 410 Mich 378, 387; 301 NW2d
809 (1981).
The function of the magistrate at a preliminary examination is to determine whether a crime has
been committed and whether there is probable cause for charging the defendant with that crime. MCL
766.13; MSA 28.931; People v King, 412 Mich 145, 152-153; 312 NW2d 629 (1981). To bind a
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defendant over for trial, there must be some evidence of each element of the crime charged, or evidence
from which those elements may be inferred. Doss, supra at 100-101. The ultimate determination,
however, must be based on an examination of the matter as a whole. King, supra at 154. The
magistrate should not discharge the defendant if the evidence at the preliminary hearing conflicts or
raises a reasonable doubt about defendant’s guilt. Such issues should instead be resolved by the trier of
fact. King, supra at 153-154; Neal, supra at 654.
The elements of second-degree murder are (1) that a death occurred, (2) that it was caused by
the defendant, (3) that the killing was done with malice, and (4) without justification or excuse. People
v Smith, 148 Mich App 16, 21; 384 NW2d 68 (1985). Malice requires either an intent to kill, an
intent to do great bodily harm, or an intent to create a high risk of death or great bodily harm with
knowledge that such is the probable result. People v Neal, 201 Mich App 650, 654; 506 NW2d 618
(1993). Malice may be inferred from the use of a deadly weapon. People v Turner, 213 Mich App
558, 567; 540 NW2d 728 (1995); Smith, supra at 21.
At the preliminary examination in the instant case, it was undisputed that the decedent,
defendant's husband, died of a single gunshot wound to the chest and that defendant pulled the trigger of
the gun. At issue was whether there was sufficient evidence that defendant did so with malice and
without justification or excuse.
Defendant asserted in her statement to the police that she discharged the gun accidentally, as a
matter of reflex, when her philandering husband returned home in a drunken and abusive state.
However, because malice may be inferred from the use of a deadly weapon, see Turner, supra at 567,
and because defendant earlier told an emergency police operator that she had a gun and was prepared
to use it on the decedent if he returned to the apartment, there was also evidence supporting a finding of
malice as opposed to one of accident. Where there is evidence both supporting and negating a finding
of malice, the issue of the existence of malice should be resolved by the trier of fact. Neal, supra at
655; Wayne County Prosecutor v Recorder’s Court Judge, 92 Mich App 119, 123; 284 NW2d
507 (1979). Moreover, although defendant told the police that the decedent had beat her on the night
of the shooting as well as in the past, she did not claim that she shot him in self-defense. Her claim to
the police that the shooting was accidental is inconsistent with her theory that the shooting was justifiable
as self-defense because self-defense requires a finding that defendant acted intentionally. See People v
Heflin, 434 Mich 482, 503; 456 NW2d 10 (1990). Therefore, the issue of whether the killing was
justified should be left for resolution by the trier of fact. See Doss, supra at 103; People v Hampton,
194 Mich App 593, 598; 487 NW2d 843 (1992); Smith, supra at 21-22. Accordingly, we hold that
the district court did not abuse its discretion when it found that a crime had been committed and that
there was probable cause to believe that defendant had committed the crime. Peebles, supra at 664.
In so holding, we do not address the wisdom of the prosecutor's decision in bringing the instant charge
but only whether there was sufficient evidence to justify the decision of the district court.
Reversed and remanded with instructions to bind defendant over for trial on charges of second
degree murder and felony-firearm.
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/s/ Stephen J. Markman
/s/ Gary R. McDonald
/s/ E. Thomas Fitzgerald
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