(dissenting).
Taylor was charged with second-degree murder. By statute this charge includes the offenses of voluntary and involuntary manslaughter. Taylor waived his right to a jury and the case was tried to the court on July 13, 1988. On August 5, 1988, the court filed its written findings of fact, conclusions of law and ruling.
The district court correctly recognized that to convict Taylor of murder the State must prove he killed Sylvester Koester with malice aforethought. Iowa Code § 707.1 (murder defined). After considering all the evidence presented at trial, the trial court specifically found the State had failed to prove malice aforethought and found Taylor not guilty of murder. The court then considered the statutory included offense of voluntary manslaughter. Iowa Code § 707.4.
The court in its written finding and conclusion stated:
To find the defendant guilty of voluntary manslaughter the evidence must establish beyond a reasonable doubt that:
(1) That on February 23, 1988, the defendant did grab Sylvester Koester and shake him violently.
(2) That such violent shaking was done solely by reason of passion resulting from frustration the defendant experienced when the child was crying, fussing and irritable.
(3) That Sylvester Koester died as a result of being violently shaken.
The court then concluded that the evidence established each of the above elements beyond a reasonable doubt and found that Taylor was guilty of voluntary manslaughter.
The trial court erred in two respects. First, the court failed to recognize that adequate provocation is an element of the offense of voluntary manslaughter. Second, the court failed to recognize that it cannot consider a statutorily-included offense where there is no factual basis for doing so.
I. Provocation.
The majority opinion does not expressly recognize adequate provocation is an element of the offense of voluntary manslaughter in Iowa. I believe it is. Our early cases recognized provocation as one of the essential features of the offense. Because manslaughter was not defined by statute in Iowa until 1978, we applied the common-law definition. As stated in State v. Boston, 233 Iowa 1249, 1255, 11 N.W.2d 407, 410 (1943):
The common law definition, the unlawful killing of another without malice express or implied, prevails in Iowa. It is commonly divided into voluntary and involuntary manslaughter. The former is committed in a sudden heat of passion due to adequate provocation. Involuntary manslaughter is an unintentional killing without malice in the doing of an unlawful act not amounting to a felony or of some lawful act not amounting to a felony or of some lawful act in an unlawful manner.
The common-law definitions of manslaughter were substantially codified by the adoption of the Iowa Criminal Code.
We continued to recognize provocation as an essential element of voluntary manslaughter after the adoption of the Code. In State v. Ingers, 292 N.W.2d 119, 122 (Iowa 1980), we approved the court’s instruction requiring the State to prove provocation. We held section 707.4 required both a subjective and objective standard be met before a defendant can be convicted of voluntary manslaughter. In State v. Ware, 338 N.W.2d 707, 714-15 (Iowa 1983), we stated a factual prerequisite of the crime is that the defendant must have acted “solely as a result of sudden, violent, and irresistible passion resulting from serious provocation....” Because there was no evidence that the defendant acted out of passion resulting from serious provocation, we held voluntary manslaughter was not a factually-supported lesser-included offense of murder. Id.
Relying on these and other authorities the court of appeals affirmed a voluntary manslaughter conviction where it found *609substantial evidence to support the submission of the offense. State v. Kinzenbaw, 344 N.W.2d 258 (Iowa App.1983). After recognizing the State was required to prove the elements of voluntary manslaughter beyond a reasonable doubt, the court found a jury question was generated on the issue of whether the killing was done intentionally by reason of passion resulting from serious provocation. Id. at 259. In State v. Thongvanh, 398 N.W.2d 182, 189 (Iowa App.1986), the court found voluntary manslaughter was not a factually-supported lesser-included offense where there was no evidence of irresistible passion resulting from serious provocation.
Furthermore, the Iowa Criminal Jury Instructions identify serious provocation as an element of the offense of voluntary manslaughter. Iowa Criminal Jury Instructions 700.15 (1989).
The majority held the district court erred in finding provocation. I would conclude there was no evidence of adequate provocation to support Taylor’s conviction of voluntary manslaughter.
II. Lesser-included Offenses.
In State v. Jeffries, 430 N.W.2d 728 (Iowa 1988), we modified our prior law relating to lesser-included offenses. We recognized that before submitting statutorily-mandated lesser-included offenses, such as voluntary manslaughter, the trial court must apply the factual test to determine if sufficient evidence exists to submit the lesser-included offense. Id. at 737. Further caution was given in State v. Royer, 436 N.W.2d 637, 642-43 (Iowa 1989), where we stated:
In the case of statutorily mandated lesser-included offenses, however, a factual test is necessary because the lesser-included offense usually contains elements not found in the greater offense.... Consequently, the necessary factual test is whether substantial evidence of each necessary element of the lesser-included offenses has been produced.
Under this test, voluntary manslaughter should not have been considered by the district court. The requisite element of provocation was not supported by evidence.
III. Prejudicial Error.
The majority, after recognizing the district court had erred, finds the error was not reversible. The cases cited in support suggest there is no prejudicial error if a defendant charged with murder is convicted of voluntary manslaughter although the necessary element of provocation did not exist. They suggest the defendant cannot complain because the error worked to his advantage. The majority opinion adopts this reasoning. I am unwilling to assume the trial court would have found Taylor guilty of murder had the court correctly applied the law of voluntary manslaughter. I accept the district court’s finding that the State failed to provide sufficient evidence of malice aforethought. It would appear to be highly prejudicial to find Taylor guilty of voluntary manslaughter without evidence of provocation.
The North Carolina Court of Appeals decision cited by the majority does not indicate whether the defendant requested the submission of a voluntary manslaughter instruction or if he objected to its submission to the jury. We have used similar language where the defendant, charged with murder, did not object to a voluntary manslaughter instruction. State v. Thompson, 326 N.W.2d 335 (Iowa 1982) (defendant should not be allowed to gamble on the verdict and then complain). We have also held the submission of the lesser-included offense of voluntary manslaughter is harmless error if the jury returns a verdict of guilty to the greater offense of murder. State v. Hilleshiem, 305 N.W.2d 710 (Iowa 1981).
Unlike the Thompson case, this case was tried to the court. No instructions or charges were given to a jury. There was no opportunity to object to the court’s consideration of voluntary manslaughter until Taylor knew the court had found him guilty of the offense. It is sufficient that Taylor gave the court an opportunity to correct error. He did so in his letter to the court, treated as a motion for new trial and submitted before sentencing, in which he *610claimed the State failed to establish a factual basis for the charge of voluntary manslaughter. The defendant thus preserved error on this issue.
It is the duty of this court to correct, not overlook, preserved error. The district court’s error was unfortunate, but the remedy does not lie in affirming the conviction. The question on review is not whether the defendant committed murder but whether he committed voluntary manslaughter. A conviction of voluntary manslaughter without sufficient evidence of provocation cannot stand. I would reverse the voluntary manslaughter conviction and remand to the district court in order that the district court may proceed under Iowa Rule of Criminal Procedure 23(2)(c) as to the lesser-included offense of involuntary manslaughter. See Iowa Code § 707.5(1); State v. Caldwell, 385 N.W.2d 553, 556 (Iowa 1986) (discussion of elements of offense).
McGIVERIN, C.J., and HARRIS, J., join this dissent.