A jury convicted defendant of first-degree (felony) murder. MCL 750.316; MSA *63828.548. He was sentenced to life imprisonment without parole, and appeals by right.
With respect to the element of malice in the jury instructions on first-degree murder, the court charged that defendant might be found guilty if defendant "consciously intended to commit the crime of robbery”. Although this was error, People v Fountain, 71 Mich App 491; 248 NW2d 589 (1976), the appropriate remedy is not a reversal of defendant’s conviction and a remand for retrial. The error in these instructions is that they allowed the jury to convict the defendant of murder without finding that he acted with malice. However, as was explained in People v Clark, 5 Mich App 672, 676; 147 NW2d 704, 706 (1967), lv den, 379 Mich 763 (1967), murder, absent malice, is manslaughter, " 'the unlawful killing of another without malice, express or implied.’ 'Manslaughter is distinguished from murder in that the element of malice, express or implied, which is the very essence of murder is absent.’ ” (Citations omitted.) Thus, even if the jury here convicted the defendant without a finding of malice, their verdict, on these instructions, is tantamount to a conviction of manslaughter. Cf. People v Jenkins, 395 Mich 440, 442-443; 236 NW2d 503, 504 (1975).
Accordingly, defendant’s conviction for first-degree murder is reversed and the case remanded for entry of a judgment of conviction of the lesser included offense of manslaughter and for resentencing. If, however, the prosecuting attorney is persuaded that the ends of justice would be better served, upon notification to the trial court before resentencing, the trial court shall vacate the judgment of conviction and grant a new trial on the charge that the defendant committed the crime of first-degree murder. See People v Jenkins, supra, 395 Mich at 442-443; 236 NW2d at 504.
Should the prosecutor elect to retry defendant *639the jury should be instructed that malice is a permissible inference that the jury may draw from the use of a deadly weapon, and not a presumption. See People v Martin, 392 Mich 553, 561; 221 NW2d 336, 340 (1974). Also, upon proper request defendant shall be entitled to an instruction on the lesser included offense of robbery. MCL 750.530; MSA 28.798. People v Ora Jones, 395 Mich 379; 236 NW2d 461 (1975). See People v Anderson, 62 Mich App 475, 482; 236 NW2d 620, 624 (1975).
R. M. Maher, P. J., concurred.