(dissenting). I agree with the majority that there was no credible evidence here from which the trier of fact could conclude that the killing was the result of a sudden provocation on the part of the victim which would negate malice and thereby reduce the homicide to manslaughter. People v Townes, 391 Mich 578; 218 NW2d 136 (1974). The only credible evidence is that the victim was killed by one .32-caliber bullet in the chest fired from the defendant’s pistol, that *604the victim had just emerged from a stopped vehicle and that he was unarmed.

The thrust of the defense was that defendant was not guilty by reason of insanity. Although the defendant testified to a lapse of memory about the shooting, the evidence from the ballistics experts and the eye witnesses was overwhelming, and in his final argument defense counsel conceded certain undisputed facts:

"Now, there are some undisputed facts in this case. The gun that fired the thirty-two caliber bullet was Mr. Dominguez’s gun. He has not denied that. We are not denying that the victim was shot with any other gun [sic]. That the thirty-two bullet was removed from Mr. Jordan, we are not denying that. We are not denying the fact that it was Arthur’s pickup truck that pulled up behind this white Corvette. But we are admitting that it was his gun and admitting that he was killed with the thirty-two caliber bullet and admitting that it was his truck. Those facts alone, those undisputed facts are not conclusive of guilty beyond a reasonable doubt.”

The instruction requested on manslaughter was not perceived at trial to be based upon provocation by the victim as is argued on appeal; the instruction requested at trial was tied to the insanity defense. Again in final argument defense counsel stated:

"And, as I said before, if there is anything he should try to remember is what happened at the intersection, because the fact that he doesn’t remember precludes certain defenses that he may have to this incident. Self-defense, since he can’t remember, self-defense, being a state of his mind — if you find that he did the shooting beyond a reasonable doubt, the defense of self-defense is not available to him because he doesn’t remember.”

Without adding further analysis to the question *605of retroactive application of People v Ora Jones, 395 Mich 379; 236 NW2d 461 (1975),1 we can decide this case on the basis of the authority offered to the trial judge, namely, People v Bowen, 165 Mich 231; 130 NW 706 (1911).

Bowen is not fopr-square on the issue presented here, but it certainly did support defense counsel’s argument that:

"I feel there are sufficient facts before this jury that the jury could conclude in its deliberations that the defendant is guilty of manslaughter. And I would cite, although I do not know the name of the case without looking it up, 165 Mich 231 or 232,1 believe, that would support the theory that where insanity is a defense that has been raised by the defendant, that the better practice, at least suggested by the Supreme Court of Michigan in that case, would be to give the instruction on manslaughter as requested.”

With Bowen as authority for the proposition that a conviction for manslaughter would have been supported by the facts in this case, I would hold the trial court’s failure to so instruct reversible error.2

I would remand to the Saginaw County Circuit *606Court for entry of a judgment of conviction of the lesser included offense of manslaughter and for resentencing. If the prosecuting attorney is persuaded that the ends of justice would better be served, upon notification to the trial court before resentencing, the trial court shall vacate the judgment and conviction and grant a new trial on the charge that the defendant committed the crime of second-degree murder. People v Dancer, 396 Mich 802; 238 NW2d 29 (1976).

On August 5, 1975, the defendant was convicted, by jury verdict, of murder in the second degree, contrary to MCLA 750.317; MSA 28.549.

On September 8, 1975, the defendant was sentenced to a prison term of 10 to 20 years.

An examination of the record and briefs discloses no reversible error.

Affirmed.