(concurring in result). Í would simply hold here that, limited to the facts of this case, the trial judge did not err in including an instruction on second-degree murder where the instruction was with the express consent of the defendant and her attorney.
I think the charge in this case can be justified under the rule of People v Carter, 387 Mich 397, 422-423; 197 NW2d 57 (1972).
"In a criminal case, if there is a request to charge as to a lesser included offense, but there is no evidence of such a lesser included offense, or the facts are such that the court or the jury would be obliged to conclude that the defendant was guilty of the offense charged or not guilty, no charge as to a lesser included offense need be given.
"But if the evidence is subject to different interpretations that would justify a finding of a lesser offense, a charge as to such lesser offense, especially if one is requested, should be given.”
*417The posture of this case would place any trial judge on the horns of a dilemma. If the defense had insisted on a verdict of felony murder or a verdict of not guilty, we would have a different question here before us. However, the defense in this case was alibi: that the defendant was not present at the scene of the crime, and was in fact home in bed at the time of the occurrence. The trial judge, under the circumstances, volunteered to give the charge of felony murder, a charge of second-degree murder and a charge of manslaughter. Defendant and her attorney conferred about the matter, a record was made, and defendant rejected a charge of manslaughter but accepted a charge of first-degree felony murder and second-degree murder. On these facts I do not think we have error to consider on that question.
This may appear to be a fence-straddling position between People v Bufkin, 43 Mich App 585; 204 NW2d 762 (1972), lv pending, and People v Wimbush, 45 Mich App 42; 205 NW2d 890 (1973), lv den, 390 Mich 770 (1973), but I believe we are justified in avoiding taking that issue head-on because of the three striking aspects in this case which differentiate it from Bufkin and Wimbush:
1. The defense in this case was alibi.
2. The triggerman who testified to defendant’s participation had pleaded guilty to second-degree murder, which fact (as well as his sentence) was known to the jury.1
*4183. There was no objection to the instruction as given.2
I concur in affirmance.
"The Court: Since it was brought out what the sentence recommendation was, perhaps I might ask Mr. Symington what sentence was actually imposed on you for this crime for which you pleaded guilty to murder in the second degree?
"Mr. Symington: 20 to 40 years.”
MCLA 768.29; MSA 28.1052, GCR 1963, 516.2. People v Manuel Johnson, 58 Mich App 347, 355; 227 NW2d 337 (1975).