(concurring). I concur in the *150result but write to record my disagreement with the majority’s endorsement of People v Fountain, 71 Mich App 491; 248 NW2d 589 (1976). Malice is a state of mind and the rule ought to be that whether the instruction uses the word murder or killing in connection with the underlying felony, an omission to instruct on malice would not be reversible error unless properly preserved for review by objection or by the trial court’s refusal to give a properly requested instruction. Were I at liberty to exercise my own judgment on the law as the law should be, I would unhesitatingly vote to affirm this defendant’s slaying of a gas station attendant when the attendant refused to give up the money after four eyewitnesses all agreed that the armed robber demanded money and threatened to shoot one of the attendant’s children. It seems to me that the right result obtained and any error was harmless.
In addition to the authorities cited in the majority opinion the Supreme Court has recently held that manslaughter is not a necessarily included offense but may be so if the evidence adduced at trial would support a verdict of guilty of that crime. People v Van Wyck, 402 Mich 266; 262 NW2d 638 (1978). On the facts of this case there is no doubt that the shooting occurred during a struggle between the decedent and the robber after another witness had reached for the gunman’s hand. I suppose the jury could have believed that the gun discharged accidentally in violation of MCL 750.329; MSA 28.561 and that defendant was drunk or otherwise incapable of felonious intent and I therefore reluctantly concur in the result.