The judge should not dismiss the case simply because the judge has determined that the State should not have prosecuted the case due to the remote or nonexistent possibility of a conviction. As the examining magistrate herein, the judge properly found the State had established, for preliminary examination purposes, that there was probable cause to believe defendant had committed second-degree murder as charged by the State. At that point he had no alternative but to bind the defendant over to stand trial for second-degree murder. In so doing, he not only invaded the province of the jury, but also invaded the province of the prosecution to determine on what charge it would proceed. It should be repeated there was no failure of proof on the charged crime for preliminary examination purposes.
Nothing is to be gained from belaboring the matter further.
We conclude the district court erred in binding the defendant over on voluntary manslaughter rather than the charged crime of second-degree murder. The judgment of the district court is reversed and the case is remanded with instructions to bind the defendant over for trial on the charge of second-degree murder. Reversed and remanded with instructions.