¶1Relator, who was charged with the crime of manslaughter, was granted a writ of habeas corpus against the respondent, the sheriff of Dodge County, Nebraska, who prosecutes this appeal.
¶2Relator contended the evidence introduced at thei preliminary hearing before a justice of the peace was insufficient to show that a crime was committed, and further there was no probable cause to believe she committed the offense.
¶3On March 24, 1966, a fire broke out at the home of the relator in Fremont, Nebraska. The alarm was turned *511in at 9:45 a.m. The fire department arrived within 10 minutes thereafter. The firemen broke into the house and removed three children, aged 3% years, 1% years, and 6 months, who were alone in the house. Relator, their mother, was gone, and the door was locked on the outside with a hook and eye fastener to keep the children inside. The 6-month-old baby was found dead in its crib, with severe bums over 80 percent of its body. The autopsy report indicates that the baby was alive and well before the fire. The other two children were hospitalized.
¶4Relator was located by a social worker who telephoned a downtown bar where relator said she was having a bottle of pop. Relator had been leaving the children alone during the early part of the morning for several weeks before the fire. She put the hook on the outside of the door after a social worker had found the children outside the house on a previous occasion. Relator told an investigator that she was waiting at the bar for a cab she had called to' return home. The call for a cab was verified. Subsequently relator admitted that she had been at the apartment of a bartender she had been seeing for sometime, and that she had gone to the bar to call the cab. After she was located at the bar she did not wait for the cab but went directly to the police station where she arrived at 10:30 a.m.
¶5The district court found the evidence insufficient to establish the crime of manslaughter, determined that relator’s statements and admissions secured during the investigative, process were inadmissible at the preliminary hearing, and granted the writ. We first address ourselves to the last point.
¶6A preliminary hearing did not exist at common law. In this jurisdiction it is provided for by statute. Its functional purpose is stated in section 29-506, R. R. S. 1943. A preliminary hearing before a magistrate is not a criminal prosecution or trial within the meaning of our *512Constitution. See Roberts v. State, 145 Neb. 658, 17 N. W. 2d 666.
¶7We have repeatedly held that a preliminary hearing is in no sense a trial of the person charged in regard to his guilt or innocence. Its purpose is to ascertain whether or not a crime has been committed, and whether or not there is probable cause to believe the, accused committed it. Fugate v. Ronin, 167 Neb. 70, 91 N. W. 2d 240. The effect of the foregoing, if found to exist, is to hold the accused for trial in district court, which has jurisdiction to try him. See Dobrusky v. State, 140 Neb. 360, 299 N. W. 539.
¶8In a habeas corpus proceeding instituted for the purpose of testing the sufficiency of evidence taken at the preliminary examination to require a person to be tried on a criminal charge, the court will not weigh the evidence but only inquire as to the existence of evidence to sustain the charge. Neudeck v. Buettow, 166 Neb. 649, 90 N. W. 2d 254.
¶9Evidence that would justify a committing magistrate in finding that probable cause existed for the detention of a defendant need not necessarily be sufficient to sustain a verdict of guilty when he is placed on trial. Rhea v. State, 61 Neb. 15, 84 N. W. 414.
¶10The rule that the accused is entitled to the benefit of any doubt does not apply in preliminary examinations. The test if not whether guilt is established beyond a reasonable doubt but whether evidence worthy of consideration in any aspect for a judicial mind to act upon renders the charge against the accused within reasonable probabilities. Circumstantial evidence may be sufficient basis to bind the accused over to the district court. See 21 Am. Jur. 2d, Criminal Law, § 449, p. 451. In the reception of evidence a committing magistrate is not strictly governed by technical rules applicable on a final trial. Harmer v. State, 121 Neb. 731, 238 N. W. 356. We have held voluntary confessions with slight corroborative evidence sufficient for purposes of a pre*513liminary hearing. Cotner v. Solomon, 163 Neb. 619, 80 N. W. 2d 587. To change this rule when we require prompt preliminary hearings would tend to make the preliminary hearing a trial and could seriously impede criminal prosecutions. As we view the record for purposes of a preliminary hearing, there is sufficient evidence to find that there is probable cause to believe the relator committed a crime if a crime was committed.
¶11This raises the question then whether or not, assuming the evidence to be true, it constitutes a crime. Section 28-403, R. R. S'. 1943, provides: “Whoever shall unlawfully kill another without malice, either upon a sudden quarrel, or unintentionally, while the slayer is in the commission of some unlawful act, shall be deemed guilty of manslaughter; and upon conviction thereof shall be imprisoned in the Nebraska Penal and Correctional Complex not more than ten years nor less than one year.”
¶12Section 38-116, R. R. S. 1943, provides: “It shall be unlawful, and it is hereby declared to be cruelty for any person employing or having the care, custody or control of any child, willfully or negligently to cause or permit the life of such child to be endangered, or the health of such child to be injured, or willfully to cause or permit such child to be placed in such a situation that its life or health may be endangered, or to cause or permit such child to be overworked, cruelly beaten, tortured, tormented or mutilated.”
¶13Relator was in violation of a positive statute, section 38-116, R. R. S. 1943, when she locked her 3 children under 4 years of age in the house and took off on her own pleasure. Her husband left the home before 7 a.m. She got up shortly thereafter and drank some coffee. There is no evidence as to the exact time she left home, but she walked downtown and spent some time in her paramour’s apartment. Relator did state she usually went downtown about 9 a.m. She would get back in time, to get lunch for her husband who came home at noon. In any event, she was unavailable from before 9 a.m. until *514she was located at the bar about 10:25 a.m. The fire alarm was turned in at 9:45 a.m. It must be conceded that the children were incapable of taking care of themselves. Relator was courting trouble. The law holds one so situated that his act may endanger the life of another to a high degree of caution, and he may be criminally responsible for loss of life consequent on his failure to exercise a proper degree of caution. When we apply the test of the reasonable man, we are forced to the conclusion that relator was deliberately jeopardizing the lives and safety of the children. She had a legal duty to see that they were protected, but left them unattended for long periods of time. Such neglect is criminal in its character and where it results in death will sustain a conviction for manslaughter. The negligence on which a charge of involuntary manslaughter is predicated may be the omission of an act which it is a person’s duty to perform. 1 Wharton’s Criminal Law and Procedure, § 296, p. 621.
¶14In Stehr v. State, 92 Neb. 755, 139 N. W. 676, 45 L. R. A. N. S. 559, Ann. Cas. 1914A 573, we said: “For a parent having special charge of an infant child to so culpably neglect it that death ensues as a consequence of such neglect is manslaughter, although death or grievous bodily harm were not intended.” That case involved neglect to seek medical aid for a stepson who had frozen his feet.
¶15The degree of negligence which will make one criminally responsibile for a neglect of duty is difficult to define. Obviously, it is not any slight breach of duty but rather a gross failure to do what is required of one. On the record herein, we cannot say as a matter of law relator could not be guilty of manslaughter. Culpable neglect in omitting to perform a legal duty will sustain a manslaughter conviction. Relator had a legal duty to protect the children. She deliberately locked them in the house alone while she went off to pursue her own pleasures. As a result, one of them was burned to death. *515It is for a jury to determine whether the conduct of relator crosses the line where her breach of duty renders her criminally negligent.
¶16For the reasons given, we reverse the judgment of the trial court and remand the cause with directions to return relator to the custody of respondent to stand trial.
¶17Reversed and remanded with directions.
¶18dissenting.
¶19We respectfully dissent. The district judge in granting the writ of habeas corpus here specifically stated the basis for the order. He did not believe the evidence introduced at the preliminary hearing established the crime of manslaughter. Miranda v. Arizona, 384 U. S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694, 10 A. L. R. 3d 974, was effective. Objections were interposed and argued on the basis of Miranda, both at the preliminary examination and in the briefs here. The trial judge specifically found that: “… substantially all the evidence even if it does establish a crime was obtained in my opinion in violation of the rules set forth in the Miranda decisions and therefore inadmissible …
¶20It is deemed necessary to review the record with respect to the statements of the defendant, the facts surrounding the taking of them, and which portion of the evidence at the preliminary hearing was established by the defendant’s statements.
¶21Shortly before 10:35 a.m., detective Homes of the Fremont police department was just leaving the police station with a camera to go- to the scene of the fire when he was met by the county attorney on the steps of the police station. The county attorney told him that Mrs. Delay would be coming in to the station and identified Mrs. Delay when she came.
¶22The defendant’s first statement was taken from her by detective Homes at the police station commencing at 10:35 a.m. Detective Homes at that time advised the defendant that she did not have to tell him anything and that anything she said could be used in court against her. *516He typed the statement as he talked to her. This first statement showed that on that morning the defendant had gotten up sometime after 7 a.m., had some coffee, and that the children were still in bed asleep when she left the house; that she had walked downtown and had just run out of the house for a little while; that she had stopped at Saeger’s Bar and had a bottle of pop; that this was the first and only place she went downtown; and that while there, she was contacted by a representative of the welfare department who told her that there had been a fire at her house and she was supposed to call the police department. She hung up the telephone and walked directly to the police department.
¶23At this point appears the only blank line in the statement. The remainder of this first statement deals with her prior habits and customs when she left the children alone and revealed also that she was familiar with and frequently visited at least two local bars. The first statement was completed at approximately 11:15 a.m.
¶24Detective Homes testified that he was conferring with the county attorney on and off all day long; and that he talked to him at noon and gave him the information obtained from the defendant. The defendant was never told at any time that she was free to leave and when she left the room to use the restroom, Mrs. Losee, the police clerk, went with her.
¶25At 2:20 p.m. that afternoon, detective Homes took another statement from the defendant. Essentially, this statement had nothing whatever to do with her actions or conduct on the day of the fire, but dealt only with her conduct in connection writh the children prior to that day. This statement showed that about 2 months before, she had started as a regular thing to leave the children home alone, usually in the mornings; that she never had anyone stay with them; and that the times she left were sometimes before 9 a.m. and her return was sometimes as late as shortly before noon. It also showed *517that a representative of the welfare department had given her “the devil” for leaving the children alone. This statement was concluded and signed by the defendant at approximately 2:50 p.m.
¶26At 3:40 p.m., the defendant asked to consult with a lawyer when she was told she would be held on a charge of manslaughter. She talked to her lawyer briefly by telephone and she and detective Homes were told that he would be there at approximately 5 p.m. The defendant was booked on a manslaughter charge at 5 p.m. and taken to jail. At 9:30 p.m. that night, detective Homes and another police officer went to the jail and again began “visiting” with the defendant. In detective Homes’ words, they were “trying to fix the time she would have left the house.”
¶27At this conversation, the defendant told them that upon leaving the house she had gone to the apartment of a bartender, and that she had been going there for several months; and that she was there that morning after leaving the house, and had gone from the apartment to Saeger’s Bar to call a taxicab and go home at the time she, received the call to contact the police. She also told them that some weeks before she had installed a hook and eye lock on the outside of the one door to the house which was not obstructed. This was after a welfare department representative had found her children running around outside. She also told them that she had been locking the lock for several weeks, and had locked it that morning when she left.
¶28All of these statements of the defendant, both written and oral, were admitted over strenuous objection at the preliminary hearing. At none of them were the required Miranda warnings given, and the last and most damaging one was taken after the officers knew the defendant had a lawyer.
¶29Except for the defendant’s own statements, the evidence at the preliminary hearing established only that there had been a fire at defendant’s house at 9:45 a.m.; *518her children were in the house alone; that no one, including the fireman who testified, knew how the fire commenced nor how long it had been burning; that the defendant was not present; and that her daughter was dead as a result of the fire.
¶30This case is subject to the requirements of Miranda as well as prior and related cases dealing with in-custodial interrogation and the right to counsel. It seems crystal clear that the constitutional requirements applicable to in-custody interrogation of the defendant were not met. If trial had been involved rather than a preliminary hearing, the statements of the defendant could not have been introduced in evidence. Her own statements were the only evidence which might have completed the required proof that a crime had been committed.
¶31In 22 C. J. S., Criminal Law, § 340, p. 879, it is stated: “… although the magistrate is not strictly governed by technical rules in the reception of evidence, the admissibility of evidence at the preliminary examination is governed by the same rules as those governing admissibility at trial.” It is also stated: “… the principle, stated infra § 345, that less evidence is required to hold accused for trial than is exacted to support a conviction, does not go to the competency, relevancy, or character of the evidence.”
¶32In Cotner v. Solomon, 163 Neb. 619, 80 N. W. 2d 587, we held that the sufficiency of evidence adduced at a preliminary examination to hold an accused to answer for a crime with which he is charged may be raised and tried in habeas corpus proceedings, and also held that even a voluntary confession is insufficient standing alone to prove that a crime has been committed.
¶33At a preliminary hearing we see no justifiable reason why the admissibility of a confession, admission, or statement of a defendant stemming from custodial interrogation should not be governed by the same constitutional rules as those governing its admissibility at trial. This *519is emphatically true where the confession, admission, or statement is necessary to prove the essential requirement at a preliminary hearing that a crime has been committed.
¶34The prosecution at the preliminary hearing only had the burden of establishing a body of facts sufficient to show that the crime of manslaughter was committed and that there was probable cause to believe the defendant committed it. It should' not be permitted to flesh out the bare bones of the factual skeleton with confessions, admissions, or statements of the accused, obtained in violation of her constitutional rights, which would be inadmissible at the trial itself. When such statements are admitted not only to prove probable cause that the defendant was the one chargeable with responsibility, but also to establish the essential foundation fact that a specific crime has been committed, the effect of the error may well be compounded later. From the standpoint of efficient judicial administration, it is far better to correct such an error at an early stage when it may still be remediable.
¶35While we can say nothing favorable as to the conduct of the defendant, either as a mother or otherwise, and this dissent in no way reflects a determination that she was innocent of any crime other than manslaughter, she is entitled to the constitutional rights of every citizen.
¶36The district court found that the evidence introduced at the preliminary hearing in this case did not establish the crime of manslaughter, and that substantially all of the evidence at the preliminary hearing was obtained in violation of the constitutional rights of the defendant and was, therefore, inadmissible. We believe that the determination was correct in all respects and should have been affirmed.