Per Curiam.
The issue in this case is whether the district judge who presided over the defendant’s preliminary examination erred in denying the prosecutor’s motion to amend count ii to charge third-degree criminal sexual conduct, instead of gross indecency between males. We are persuaded that the amendment should have been allowed.
i
The defendant was charged in a complaint and warrant with gross indecency between males1 and kidnapping.2 The alleged victim was a thirteen-year-old boy with whom the defendant was acquainted.
The boy and a neighbor were the only witnesses at the defendant’s preliminary examination. The boy testified that the defendant had sexually assaulted him, and then forced him into his vehicle the next day upon learning that the boy had [361]*361reported the assault to his mother. The neighbor witnessed the incident on the second day.
At the conclusion of the preliminary examination, the assistant prosecutor moved to amend the information to charge third-degree criminal sexual conduct,3 instead of gross indecency between males. She explained that the victim had testified to sexual penetration, whereas authorities previously had been aware only of sexual contact.
The district judge refused to permit the amendment, reasoning:
You can’t increase the penalty unless you’ve given prior notice that you intend to do that no matter what the witness says in open court.[4]
Accordingly, the court bound the defendant over for trial on charges of gross indecency and kidnapping.
The prosecution appealed to the circuit court, which affirmed the district judge’s ruling. The Court of Appeals then denied the prosecutor’s application for leave to appeal,5 but this Court remanded the matter for consideration as on leave granted.6
In an unpublished opinion per curiam,7 the Court of Appeals subsequently affirmed the circuit court’s decision. The panel said that although the lower courts had the authority to amend the information at the conclusion of the preliminary exami[362]*362nation, the error was harmless. The Court of Appeals reasoned that amendment would have been proper only if there were no unfair surprise or prejudice to the defendant, and that those criteria were not met here.
The prosecution has applied for leave to appeal, asking this Court to decide the issue.
ii
The right to a preliminary examination in Michigan is a creation of statute.8 There is no federal or state constitutional requirement. People v Johnson, 427 Mich 98, 103; 398 NW2d 219 (1986); People v Hall, 435 Mich 599, 603; 460 NW2d 520 (1990).
The primary function of the preliminary examination is. to determine whether a crime has been committed and, if so, whether there is probable cause to believe that the defendant committed it. The preliminary examination thus serves the public policy of ceasing judicial proceedings where there is a lack of evidence. Johnson at 104-105.
At the same time, the preliminary examination helps to satisfy the constitutional requirement that the defendant "be informed of the nature of the accusation” against him. Id.; Const 1963, art 1, § 20.
Absent the required showing of probable cause by the prosecution, there cannot be a proper bind-over. It is the bindover, or waiver, that authorizes the prosecution to file an information against the defendant in circuit court:
An information shall not be filed against any person for a felony until such person has had a preliminary examination therefor, as provided by [363]*363law, before an examining magistrate, unless that person waives his statutory right to an examination. [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 Kahler, 93 Mich 625, 627; 53 NW 826 (1892). Rather the information is "presumed to have been framed with reference to the facts disclosed at the examination which succeeds the arrest.” Id. Indeed, an examining magistrate may examine not only the truth of the charge in the complaint, but also other pertinent matters related to the charge. The magistrate is not bound by the limitations of the written complaint. People v Dochstader, 274 Mich 238, 243; 264 NW 356 (1936).
in
In the instant case, the defendant was charged with gross indecency between males. In order to secure a bindover to circuit court for trial, the prosecution was required to prove that the defendant voluntarily committed a sexual act with the alleged victim, and that the victim was younger than sixteen. MCL 750.338; MSA 28.570.9 The prosecution unquestionably satisfied its burden by virtue of the victim’s testimony at the preliminary examination.
On the basis of the victim’s testimony that the defendant’s penis had penetrated the victim’s anus, the prosecution sought to have the defendant bound over for trial on the more serious charge of third-degree criminal sexual conduct. The assistant prosecutor explained that she had not been aware of the penetration before the [364]*364preliminary examination because the investigative report described sexual contact only.
In order to secure a bindover for trial on a charge of third-degree esc, the prosecution was required to prove that the defendant penetrated the victim’s anus with his penis for a sexual purpose, and that the victim was between the ages of thirteen and sixteen. Again, the victim’s testimony met the prosecutor’s burden. Any penetration, no matter how slight, is sufficient to satisfy the "penetration” element of third-degree esc. MCL 750.520d, 750.520a(1); MSA 28.788(4), 28.788(1)(I).10
Having determined that there were sufficient proofs presented at the preliminary examination to support a bindover on either a charge of gross indecency or a charge of third-degree esc, the question then becomes whether the amendment requested by the prosecution would have caused unacceptable prejudice to the defendant because of unfair surprise, inadequate notice, or insufficient opportunity to defend. These factors are relevant to the defendant’s right to a fair opportunity to meet the charges against him. Johnson at 109. We hold that the amendment would not have caused such prejudice.
First, the defendant has not suggested, nor are we able to discern, how his attorney’s questioning of the alleged victim at the preliminary examination would have been different had the defendant initially been charged with third-degree criminal sexual conduct. There is no dispute concerning the victim’s birth date, and his testimony was adequate to show either the "sexual contact” element of gross indecency or the "penetration” element of third-degree esc.
[365]*365Second, we note that the assistant prosecutor suggested to the district judge that the victim be recalled to answer additional questions, in light of the motion to amend the charge.
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Per Curiam.
The issue in this case is whether the district judge who presided over the defendant’s preliminary examination erred in denying the prosecutor’s motion to amend count ii to charge third-degree criminal sexual conduct, instead of gross indecency between males. We are persuaded that the amendment should have been allowed.
i
The defendant was charged in a complaint and warrant with gross indecency between males1 and kidnapping.2 The alleged victim was a thirteen-year-old boy with whom the defendant was acquainted.
The boy and a neighbor were the only witnesses at the defendant’s preliminary examination. The boy testified that the defendant had sexually assaulted him, and then forced him into his vehicle the next day upon learning that the boy had [361]*361reported the assault to his mother. The neighbor witnessed the incident on the second day.
At the conclusion of the preliminary examination, the assistant prosecutor moved to amend the information to charge third-degree criminal sexual conduct,3 instead of gross indecency between males. She explained that the victim had testified to sexual penetration, whereas authorities previously had been aware only of sexual contact.
The district judge refused to permit the amendment, reasoning:
You can’t increase the penalty unless you’ve given prior notice that you intend to do that no matter what the witness says in open court.[4]
Accordingly, the court bound the defendant over for trial on charges of gross indecency and kidnapping.
The prosecution appealed to the circuit court, which affirmed the district judge’s ruling. The Court of Appeals then denied the prosecutor’s application for leave to appeal,5 but this Court remanded the matter for consideration as on leave granted.6
In an unpublished opinion per curiam,7 the Court of Appeals subsequently affirmed the circuit court’s decision. The panel said that although the lower courts had the authority to amend the information at the conclusion of the preliminary exami[362]*362nation, the error was harmless. The Court of Appeals reasoned that amendment would have been proper only if there were no unfair surprise or prejudice to the defendant, and that those criteria were not met here.
The prosecution has applied for leave to appeal, asking this Court to decide the issue.
ii
The right to a preliminary examination in Michigan is a creation of statute.8 There is no federal or state constitutional requirement. People v Johnson, 427 Mich 98, 103; 398 NW2d 219 (1986); People v Hall, 435 Mich 599, 603; 460 NW2d 520 (1990).
The primary function of the preliminary examination is. to determine whether a crime has been committed and, if so, whether there is probable cause to believe that the defendant committed it. The preliminary examination thus serves the public policy of ceasing judicial proceedings where there is a lack of evidence. Johnson at 104-105.
At the same time, the preliminary examination helps to satisfy the constitutional requirement that the defendant "be informed of the nature of the accusation” against him. Id.; Const 1963, art 1, § 20.
Absent the required showing of probable cause by the prosecution, there cannot be a proper bind-over. It is the bindover, or waiver, that authorizes the prosecution to file an information against the defendant in circuit court:
An information shall not be filed against any person for a felony until such person has had a preliminary examination therefor, as provided by [363]*363law, before an examining magistrate, unless that person waives his statutory right to an examination. [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 Kahler, 93 Mich 625, 627; 53 NW 826 (1892). Rather the information is "presumed to have been framed with reference to the facts disclosed at the examination which succeeds the arrest.” Id. Indeed, an examining magistrate may examine not only the truth of the charge in the complaint, but also other pertinent matters related to the charge. The magistrate is not bound by the limitations of the written complaint. People v Dochstader, 274 Mich 238, 243; 264 NW 356 (1936).
in
In the instant case, the defendant was charged with gross indecency between males. In order to secure a bindover to circuit court for trial, the prosecution was required to prove that the defendant voluntarily committed a sexual act with the alleged victim, and that the victim was younger than sixteen. MCL 750.338; MSA 28.570.9 The prosecution unquestionably satisfied its burden by virtue of the victim’s testimony at the preliminary examination.
On the basis of the victim’s testimony that the defendant’s penis had penetrated the victim’s anus, the prosecution sought to have the defendant bound over for trial on the more serious charge of third-degree criminal sexual conduct. The assistant prosecutor explained that she had not been aware of the penetration before the [364]*364preliminary examination because the investigative report described sexual contact only.
In order to secure a bindover for trial on a charge of third-degree esc, the prosecution was required to prove that the defendant penetrated the victim’s anus with his penis for a sexual purpose, and that the victim was between the ages of thirteen and sixteen. Again, the victim’s testimony met the prosecutor’s burden. Any penetration, no matter how slight, is sufficient to satisfy the "penetration” element of third-degree esc. MCL 750.520d, 750.520a(1); MSA 28.788(4), 28.788(1)(I).10
Having determined that there were sufficient proofs presented at the preliminary examination to support a bindover on either a charge of gross indecency or a charge of third-degree esc, the question then becomes whether the amendment requested by the prosecution would have caused unacceptable prejudice to the defendant because of unfair surprise, inadequate notice, or insufficient opportunity to defend. These factors are relevant to the defendant’s right to a fair opportunity to meet the charges against him. Johnson at 109. We hold that the amendment would not have caused such prejudice.
First, the defendant has not suggested, nor are we able to discern, how his attorney’s questioning of the alleged victim at the preliminary examination would have been different had the defendant initially been charged with third-degree criminal sexual conduct. There is no dispute concerning the victim’s birth date, and his testimony was adequate to show either the "sexual contact” element of gross indecency or the "penetration” element of third-degree esc.
[365]*365Second, we note that the assistant prosecutor suggested to the district judge that the victim be recalled to answer additional questions, in light of the motion to amend the charge. We believe that this opportunity for further questioning effectively would have counteracted any disadvantage that the defendant might have suffered as a result of the amendment.
The fact that third-degree esc carries a more severe maximum penalty than does gross indecency does not, by itself, constitute unacceptable prejudice. Here, where the elements of both offenses were shown and the defendant has not suggested anything that his attorney would have done differently, we are unpersuaded that there was unfair surprise, inadequate notice, or an insufficient opportunity to defend against the accusations lodged against him.
iv
For the reasons given, and in lieu of granting leave to appeal, we vacate the judgments of the Court of Appeals and the circuit court and we remand this matter to the district court. MCR 7.302(F)(1). The district court, upon proper motion by the prosecutor, shall amend count n to charge third-degree criminal sexual conduct instead of-gross indecency. Upon proper motion by counsel for the defendant, the district court may permit further questioning of the alleged victim.
We vacate our order of November 24, 1992, that stayed proceedings in the circuit court pending further order of this Court.
We do not retain jurisdiction.
Brickley, Boyle, Riley, Griffin, and Mallett, JJ., concurred.
[366]*366Cavanagh, C.J., concurred only in the result.