(concurring in part; dissenting in part). Defendants Andrew Carter and Andrew Bufkin, having been charged with first-degree murder resulting from an attempted robbery, MCLA 750.316; MSA 28.548, were convicted by a jury of second-degree murder, MCLA 750.317; MSA 28.549. Each defendant appeals as of right.
The uncontradicted testimony at the trial indicated that Edward Koc, an insurance agent, was approached by a single armed assailant who shot and killed him. The assailant escaped in a car driven by another party who was waiting nearby. The people’s theory upon which they tried the case was that the killing had resulted from an attempted robbery in which Andrew Carter had driven the car and Andrew Bufkin had done the actual shooting. The trial judge charged:
"Now, if you find that the facts as you have heard them, the testimony indicates to you that there was an attempt to commit a robbery then, I say that you are limited to first-degree murder. As to. both or either of the defendants. However, if you find otherwise, then you may consider the lesser included crimes of murder in the second degree and manslaughter.”
At the conclusion of his charge, the judge reiterated this statement and in addition stated:
*593"Now, before the driver of the car, or alleged accessory in this case can be found guilty of murder in the first degree, you must be convinced beyond a reasonable doubt that he intended to participate in a robbery of the deceased, Edward Koc.”
When the jury returned asking that the instructions be repeated, the judge again stated:
"[I]f you find from the facts that no robbery was committed only then may you consider second-degree murder or manslaughter and not guilty. Those are the four verdicts you can arrive at, first-degree murder, second-degree murder, manslaughter and not guilty and you may find for either or both of the defendants. This is what you’re limited to, is that correct?”
Thus the inescapable conclusion of the jury’s conviction of both defendants of second-degree murder is that no robbery or attempted robbery was involved in this killing.
After the verdict of second-degree murder was returned, defendant Andrew Carter immediately moved for a judgment of acquittal notwithstanding the verdict alleging insufficient evidence in support of such a verdict. The trial court denied defendant’s motion.
The evidence at trial overwhelmingly supports the theory that defendant Carter was driving the car and that defendant Bufkin did the shooting. Witnesses Linda Whiting, Anita Edwards and Carl Lilly all testified that they were passengers in the car driven by defendant Carter which stopped and picked up defendant Bufkin, who was carrying a brown paper bag. After traveling a few blocks along Northfield, Bufkin asked Carter to stop the car and wait for him for a few minutes. Bufkin left the car and walked south on Northfield toward Oregon. Carter and his passengers waited several minutes and when Bufkin did not return, Carter *594apparently became impatient and started to drive away. At that time Bufkin reappeared and defendant Carter stopped the car in order to pick him up. Defendant Bufkin entered the car carrying a paper bag. Upon entering the car he told the others he had shot a man. One witness testified that defendant Bufkin said at that time that he had wanted to rob the deceased but that when the deceased refused to open the trunk of his car defendant Bufkin had shot him. J. C. Clark testified that defendant Bufkin told him he had shot a man and needed money to get out of town.
Of all the witnesses presented at trial, only one, Monwella Harvey, contradicted the evidence that defendant Carter was driving and defendant Bufkin did the shooting. She stated that she saw defendant Carter get out of a car driven by defendant Bufkin, in which only the two of them were riding. She then stated she saw defendant Carter shoot the deceased. Thus defendant Carter’s involvement in this crime is predicated solely on the truthfulness of the testimony of witness Monwella Harvey.
While normally it is held that the inconsistencies in the testimony of the witnesses presents a matter of credibility for the jury to determine and evaluate, this Court has stated a jury may not rely on the testimony of a witness who is "completely impeached”. People v White, 31 Mich App 80 (1971). Monwella Harvey was such a witness. Her testimony not only contradicted the testimony of all other material witnesses, her testimony, if believed, also completely negated the prosecution’s theory of Carter’s guilt. Miss Harvey’s testimony was nothing short of incredible. Having stated that she knew both defendants by sight, she nevertheless admitted on cross-examination that prior to *595implicating Carter and Bufkin she had on separate occasions deliberately identified three other men as the murderers. She admitted that she had deliberately identified these men in lineups and in statements to the police because she was trying to "get even” with them. In addition, details of her version of the crime were contradicted by every other witness including Leola Kelly and Carolyn White, who were not occupants of the car and were not acquainted with either of the defendants. There was, therefore, no competent evidence introduced at trial which would in any way contradict the massive amount of testimony which indicated that defendant Carter was only the driver and that defendant Bufkin did the actual shooting.
In a criminal proceeding the people must prove every element of the crime charged by direct or circumstantial evidence beyond a reasonable doubt. People v Spann, 3 Mich App 444 (1966). To constitute murder in the second degree, there must be an unlawful killing and a purpose to kill, preceding and accompanying the act, but without the deliberation and premeditation which distinguishes murder in the first degree. 3 Gillespie, Michigan Criminal. Law & Procedure (2d Ed), Homicide, § 1639, p 1973. In People v McKeller, 30 Mich App 135 (1971), we stated that the malice necessary for second-degree murder may be inferred from the type of weapon used and the manner in which the crime was committed. However, this inference goes no further than to supply the requisite intent of the actual killer and those engaged in a common design with him. As we stated in People v Cunningham, 20 Mich App. 699, 702 (1969), "It is the duty of courts to reverse criminal convictions based upon an inference upon an inference”.
*596In People v Casper, 25 Mich App 1, 5 (1970), this Court quoted People v Burrel, 253 Mich 321, 323 (1931), as follows:
" 'Mere presence, even with knowledge that an offense is about to be committed or is being committed, is not enough to make a person an aider or abettor or a principal in the second degree nor is mere mental approval, sufficient, nor passive acquiescence or consent.’ ”
In People v Walker, 40 Mich App 142 (1972), we stated that in order to support a conviction for aiding and abetting there must be evidence of a common intent and concert of action.
There was no competent evidence presented at trial which would indicate that défendant Carter did the shooting. Nor was there any evidence produced which would indicate that Carter had any common design with defendant Bufkin other than the hypothesized robbery which the jury expressly rejected in its verdict of second-degree murder. As the prosecutor himself stated in his brief, "If there was no robbery or attempted robbery, then only the shooter could be convicted”. Accordingly, the trial court should have granted defendant Carter’s motion for acquittal notwithstanding the verdict.
As to defendant Bufkin, he also had had his motion for a judgment of acquittal notwithstanding the verdict denied by the trial court. Our extensive review of the record indicates that there was sufficient evidence to convict him of second-degree murder. Where no request to charge on the lesser offense has been made but evidence exists to support a conviction of the lesser offense, the trial judge may, sua sponte, instruct on the lesser offense. People v Miller, 28 Mich App 161 (1970). *597Thus, the trial judge correctly charged the jury as to second-degree murder in regard to defendant Bufkin. Nor did defendant Bufkin object to the instruction as given. This Court has repeatedly held that a defendant’s failure to make a timely objection to a jury instruction waives any possible right he might have to object on appeal absent manifest injustice. People v Terrell, 38 Mich App 162 (1972). A careful examination of the record indicates no such injustice resulted to Andrew Bufkin from the instructions given to the jury.
As to defendant Andrew Bufkin, I would affirm with the majority; however, I would reverse as to defendant Andrew Carter and order his discharge.