THE CODE OF CRIMINAL PROCEDURE
Act 175 of 1927
767.42 Preliminary examination as prerequisite to filing of information; remand where right waived without benefit of counsel; fugitives from justice.
Sec. 42.
(1) An information shall not be filed against any person for a felony until such person has had a preliminary examination therefor, as provided by law, before an examining magistrate, unless that person waives his statutory right to an examination. If any person waives his statutory right to a preliminary examination without having had the benefit of counsel at the time and place of the waiver, upon proper and timely application by the person or his counsel, before trial or plea of guilty, the court having jurisdiction of the cause, in its discretion, may remand the case to a magistrate for a preliminary examination.
(2) An information may be filed without a preliminary examination against a fugitive from justice, and any fugitive from justice against whom an information shall be filed may be demanded by the governor of this state of the executive authority of any other state or territory, or of any foreign government, in the same manner and the same proceedings may be had thereon as provided by law in like cases of demand upon indictment filed.
History: 1927, Act 175, Eff. Sept. 5, 1927 ;-- CL 1929, 17256 ;-- CL 1948, 767.42 ;-- Am. 1957, Act 38, Eff. Sept. 27, 1957 ;-- Am. 1974, Act 63, Eff. May 1, 1974
Compiler's Notes:
Section 2 of Act 63 of 1974 provides: “To give judges, prosecutors, and defense counsel a reasonable opportunity to become aware of and familiar with the time periods and sequence prescribed in this amendatory act and the effects of noncompliance, sections 20 and 21 of chapter 8 of Act No. 175 of the Public Acts of 1927, being sections 768.20 and 768.21 of the Michigan Compiled Laws, as amended by this amendatory act shall take effect May 1, 1974, and apply to cases in which the arraignment on an information occurs on or after that date. The other provisions of this amendatory act shall take effect May 1, 1974 and apply to offenses committed on or after that date.”
FormerLaw Notes:
See section 8 of Act 138 of 1859, being CL 1871, § 7944; How., § 9555; CL 1897, § 11940; and CL 1915, § 15767.
Notes of Decisions
Cited in
56
cases (
13 in the last 5 years), 1951–2026 · leading case:
People v. Johnson, 398 N.W.2d 219 (Mich. 1986).
People v. Johnson, 398 N.W.2d 219 (Mich. 1986).
· cites it 6× “MCL 767.42; MSA 28.982 provides that a preliminary examination, unless waived, is a "condition precedent" to the filing of an information by the prosecutor.”
People v. Glass, 627 N.W.2d 261 (Mich. 2001).
· cites it 4× “MCL 767.42. The accused and the state are entitled to a "prompt" examination.”
People v. Hall, 460 N.W.2d 520 (Mich. 1990).
· cites it 4× “MCL 767.42; MSA 28.982. As this Court stated in People v Dochstader, 274 Mich 238, 244 ; 264 NW 356 (1936): This binding conclusion and finding of the examining magistrate is a judicial determination, and constitutes the basis of the right of the prosecuting attorney to proceed…”
People v. McGee, 672 N.W.2d 191 (Mich. Ct. App. 2003).
· cites it 2× “MCL 767.42(1); Hunt, supra at 362-363 . Because the elements of the charged offense are completely different from the elements of the added charge of perjury in a court proceeding, MCL 767.”
People v. Phillips, 330 N.W.2d 366 (Mich. 1982).
· cites it 3× “We recounted in Dunigan the statutory basis for entitlement to a preliminary examination in this state and observed that both the statute, MCL 767.42; MSA 28.982, and our opinion in People v Duncan, 388 Mich 489 ; 201 NW2d 629 (1972), provide that no information charging a…”
People v. Denio, 564 N.W.2d 13 (Mich. 1997).
· cites it 2× “Specifically, a prosecutor cannot file an information for a felony until an examining magistrate at a preliminary examination has determined that probable cause exists that the defendant committed the charged crimes.”
People v. Jones, 650 N.W.2d 717 (Mich. Ct. App. 2002).
· cites it 2× “42(1), noted: “An information shall not be filed against any person for a felony until such person has had a preliminary examination therefor, as provided by law, before an examining magistrate, unless that person waives his statutory right to an examination.” B. PROSECUTION’S…”
People v. Hunt, 501 N.W.2d 151 (Mich. 1993).
· cites it 2× “[MCL 767.42(1); MSA 28.982(1).] However, the information "is not predicated upon the complaint or the examination upon which the warrant issues.”
People v. Duncan, 201 N.W.2d 629 (Mich. 1972).
· cites it 2× “" This section is now in MCLA 767.42; MSA 28.982. [6] This is the same wording as the present MCLA 766.”
People v. Harrington, 256 N.W.2d 52 (Mich. Ct. App. 1977).
· cites it 4× “MCLA 767.42(1); MSA 28.982 provides in part: "An information shall not be filed against any person *120 for a felony until such person has had a preliminary examination therefor".”
People v. Erskin, 285 N.W.2d 396 (Mich. Ct. App. 1979).
· cites it 2× “982(1), which provides in pertinent part: "An information shall not be filed against any person for a felony until such person has had a preliminary examination therefor, as provided by law, before an examining magistrate, unless that person waives his statutory right to an…”
People v. Dunigan, 298 N.W.2d 430 (Mich. 1980).
· cites it 3× “MCL 767.42; MSA 28.982. The motion to quash should have been granted.”
— Mich. Comp. Laws § 767.42(1) — 35 cases
People v. McGee, 672 N.W.2d 191 (Mich. Ct. App. 2003).
“MCL 767.42(1); Hunt, supra at 362-363 . Because the elements of the charged offense are completely different from the elements of the added charge of perjury in a court proceeding, MCL 767.”
People v. Johnson, 398 N.W.2d 219 (Mich. 1986).
“MCL 767.42; MSA 28.982 provides that a preliminary examination, unless waived, is a "condition precedent" to the filing of an information by the prosecutor.”
People v. Jones, 650 N.W.2d 717 (Mich. Ct. App. 2002).
“42(1), noted: “An information shall not be filed against any person for a felony until such person has had a preliminary examination therefor, as provided by law, before an examining magistrate, unless that person waives his statutory right to an examination.” B. PROSECUTION’S…”
People v. Hunt, 501 N.W.2d 151 (Mich. 1993).
“[MCL 767.42(1); MSA 28.982(1).] However, the information "is not predicated upon the complaint or the examination upon which the warrant issues.”
People v. Harrington, 256 N.W.2d 52 (Mich. Ct. App. 1977).
“MCLA 767.42(1); MSA 28.982 provides in part: "An information shall not be filed against any person *120 for a felony until such person has had a preliminary examination therefor".”
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