(dissenting). The definitions and the array of possible components of "lesser included offenses” of the one(s) charged have fueled many appellate confrontations in Michigan. This is not surprising as courts have interpreted a jerry-built system of statutory criminal laws in an inconsistent manner.
It was our purpose to provide some uniformity and direction in nine simultaneously released opinions.
Although I agree with some of those decisions, I believe the theory of lesser included offenses adopted in this case will only serve to further blur the lines of responsibility in the criminal justice process.
My colleagues define "lesser included offenses” as necessarily included offenses plus "cognate”, *396"related” or "allied” offenses. The latter may "contain some elements not found in the higher offense”.
They say with truth that "while there is comparatively little difficulty with the necessarily included lesser offenses, the cognate lesser included offenses are much more difficult to ascertain, conceptually as well as practically”.
A glance at this twice tried, three times1 appealed case illustrates the problems we would visit upon bench and bar.
Two divergent lines of testimony were presented:
1. The eyewitness said defendant stood in the kitchen door raised the gun to his shoulder with his finger on the trigger, aimed it at decedent and pulled the trigger, killing her. The witness said she saw the shot hit decedent. Defendant then told her to "get the hell on out”.
a. The first policeman to arrive at the scene quoted defendant as saying, "I have done something I’ve been wanting to do for a long time.”
b. The eyewitness’ son said defendant told him to call the police because he had killed his wife.
c. A doctor testified that decedent’s wound was parallel to the place of entry, indicating that the shotgun had been raised to at least head level.
2. Defendant claimed the gun was held down by his side, that he neither loaded it nor aimed it and he did not remember his finger being on the trigger. He said he took the shotgun from the closet to frighten the female guest away. He testified that he merely stood with his back against one side of the kitchen door frame with the gun held at his side. Defendant said the guest rushed by him, bumped him and moved him around so that the gun slammed against the door *397frame, discharged and killed his wife. His sole claim during trial was that he had done nothing. It was an accident.
a. Defendant denied making remarks to either the officers or to the guest’s son.
The information charged that the defendant:
"[W]illfully, feloniously, maliciously, and with a design to effect the death of one Phyllis Grace, did kill and murder the said person with a shotgun said act not being justifiable or excusable but without premeditation or deliberation.”
The jury was specifically instructed on the elements of second-degree murder and voluntary manslaughter.
Following the charge, defendant’s counsel orally requested an instruction on the misdemeanor offense of careless, reckless or negligent discharge of a firearm. The judge denied this request saying that there was no evidence to support the giving of, such instruction.
The decision to charge an individual with a certain crime is the prosecutor’s responsibility. We have held that the courts may not interfere with this process. See Genesee Prosecutor v Genesee Circuit Judge, 386 Mich 672; 194 NW2d 693 (1972), and People v Curtis, 389 Mich 698; 209 NW2d 243 (1973).
After the crime is charged and a trial held, MCLA 768.32; MSA 28.1055 permits the jury to consider other offenses:
"Upon an indictment for any offense, consisting of different degrees, as prescribed in this chapter, the jury may find the accused not guilty of the offense in the degree charged in the indictment and may find such accused person guilty of any degree of such offense, *398inferior to that charged in the indictment, or of an attempt to commit such offense.”
The jury is not free to convict for any felony or misdemeanor. The statute only permits consideration of degrees (or an attempt) of the offense charged.
The Genesee Prosecutor decision recognized these two points: the prosecutor determines the initial charge and not every offense possibly committed during the crime is covered by MCLA 768.32:
"For an offense to be lesser included it must contain some, but not all of the elements of the higher offense and there must be no additional elements in the 'included’ offense which are not a part of the 'higher’ offense. The supposed 'lesser’ offense here requires proof of driving away the automobile but proof of 'driving away’ is not required of the prosecution to secure a conviction of unlawful possession of a motor vehicle known to be stolen. Although related, the two offenses are separate and distinct and the prosecutor has discretion to proceed under one or the other or both, if warranted by the facts. People v Morton, 16 Mich App 160 [167 NW2d 834] (1969), reversed on other grounds, 384 Mich 38 [179 NW2d 379] (1970); see also People v Kruper, 340 Mich 114, 121-122 [64 NW2d 629] (1954).” Genesee Prosecutor, supra, at 684.
The trial judge is responsible for instructing the jury on the elements of the offense charged.2 He or *399she should instruct on those offenses which are properly for the jury’s consideration under MCLA 768.32. These should be determined by reference to the offense charged and the evidence presented.
Defendant says the judge erred by not instructing the jury on the misdemeanor charge of careless, reckless or negligent use of firearms (requested orally), on involuntary manslaughter (not requested) and on manslaughter resulting from a firearm pointed intentionally but without malice (not requested, so not required). See People v Henry, 395 Mich 367; 236 NW2d 489 (1975). There also is a question raised first in this Court concerning the adequacy of the judge’s instructions relating to the defense of accident.
I
MCLA 752.861; MSA 28.436(21) lists the ele*400ments of a charge of careless, reckless or negligent use of firearms (CRNUF):
"Any person who, because of carelessness, recklessness or negligence, but not wilfully or wantonly, shall cause or allow any firearm under his immediate control, to be discharged so as to kill or injure another person, shall be guilty of a misdemeanor, punishable by imprisonment in the state prison for not more than 2 years, or by a fine of not more than $2,000.00 or by imprisonment in the county jail for not more than 1 year, in the discretion of the court.” (Emphasis added.)
Checking these elements against those charged, we find no common factors excepting the use of a firearm and a killing. In addition, the crime described in MCLA 752.861 contains elements not appearing in the proofs or arguments (carelessness, recklessness, negligence) of defendant and not included in the murder charged. Although involving a firearm, the offenses are otherwise separate and distinct. A charge of CRNUF is not a degree of the murder charged within the meaning of MCLA 768.32.
An instruction permitting the jury to consider the offense could have infringed the prosecutor’s right to decide what crime is to be charged. MCLA 752.861 was available and could have been used. The prosecutor decided the facts demanded a charge of second-degree murder. Defendant should not be permitted to circumvent that decision by asking the court to instruct on offenses which might have been charged. Because of possible denial of due process and fundamental fairness, we do not permit courts to do this sua sponte or upon the prosecutor’s recommendation. It is also repugnant to a fair and orderly process to permit de*401fendant to require an instruction so vaguely related to the initial charge and in this case without proofs of (or even arguments about) essential elements.
Upon adoption of the majority’s version of this "cognate”, "related” or "allied” lesser included offense theory, we may expect on another similar occasion such requested instructions (among others) as:
MCLA MSA
750.316 28.548 First-degree murder
750.317 28.549 Second-degree murder
750.321 28.553 Manslaughter (voluntary and involuntary)
750.329 28.561 Manslaughter resulting from a firearm aimed or pointed intentionally but without malice
750.83 28.278 Assault with intent to murder
750.91 28.286 Attempt to murder other than assault
750.84 28.279 Assault with intent to do great bodily harm
750.86 28.281 Assault with intent to maim or disfigure
750.82 28.277 Assault with dangerous weapon (felonious assault)
752.861 28.436(21) Careless, reckless or negligent use of firearms
There also could be eight or nine misdemeanors other than CRNUF under this theory were it not for the line drawn at a maximum penalty of "one year or less” this day in People v Chamblis, 395 Mich 408; 236 NW2d 473 (1975). I do not dispute the practicality of this ordained limit, althoügh the logic is incomplete.
*402II
Issues not preserved in the trial court are brought to and heard by this Court. There are substantial reasons in the statutes, in the court rules, in the case law and in common sense for this Court to decline to hear such issues.
MCLA 768.29; MSA 28.1052 reads in part:
"The court shall instruct the jury as to the law applicable to the case and in his charge make such comment on the evidence, the testimony and character of any witnesses, as in his opinion the interest of justice may require. The failure of the court to instruct on any point of law shall not be ground for setting aside the verdict of the jury unless such instruction is requested by the accused.”
GCR 1963, 516.1 and 516.2 read in part:3
".1 Request for Instructions. At or before the close of the evidence, any party may, or at any time the court reasonably directs, the parties shall, file written requests that the court instruct the jury on the law as set forth in the request. * * * The court may make such comments on the evidence, the testimony, and the character of the witnesses as in its discretion the interests of justice require.
".2 Objections. No party may assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider the verdict, stating specifically the matter to which he objects and the grounds of his objection. Opportunity shall be given to make the objection out of the hearing of the jury.”
Honigman & Hawkins say the purpose of instructions "is to explain the issues and the legal princi*403pies applicable to the facts in issue”. By providing for requests and requiring objections, the rules establish "the foundation for appeal as to alleged errors in jury instructions”. Unobjected-to errors and failure to give an unrequested instruction will not be cause for reversal unless we are convinced that the error or omission has so damaged the integrity of the proceedings that the conviction cannot be permitted to stand.
The trial judge instructed the jury on the elements of second-degree murder and voluntary manslaughter. He did not instruct on involuntary manslaughter. No request for such instruction was made and no argument or proofs were offered by defendant.
MCLA 750.321; MSA 28.553 reads:
"Any person who shall commit the crime of manslaughter shall be guilty of a felony punishable by imprisonment in the state prison, not more than 15 years or by fine of not more than 7,500 dollars, or both, at the discretion of the court.”
The statutes do not define manslaughter. Our courts have based their interpretation upon the common law versions of "voluntary” and "involuntary” manslaughter.4
*404Defendant was not prejudiced by the lack of an instruction on involuntary manslaughter. Such an instruction was not appropriate. The elements are inconsistent with and even opposite to those of the crime charged in this case or the evidence before the jury. Elements not included in the murder charge, such as criminal or gross negligence, or the negligent omission to perform a legal duty, or an unlawful act not amounting to a felony nor normally tending to cause death, would have to be proved to sustain involuntary manslaughter. Involuntary manslaughter is not a degree of the murder charged within the meaning of MCLA 768.32.
As in Genesee Prosecutor, "the two offenses are separate and distinct and the prosecutor has discretion to proceed under one or the other or both, if warranted by the facts”. The prosecutor elected to charge second-degree murder. The prosecutor elected not to charge involuntary manslaughter because neither version of the . incident provided the necessary factual basis. The prosecutor’s exercise of discretion should not be disturbed.
Ill
If an accused requests proper instructions on a *405defense the trial court is obligated to grant the request if the evidence supports such charge. The jury should be then instructed as to the nature of the defense and the law applicable to the defense.5
No such request was made in this case. Defendant only raises the instruction as an issue on appeal to this Court. I am persuaded that the defense perceived no viable issue because the jury could not have been misled.
Throughout the trial, from opening statement through closing statement, defendant maintained that the shooting was an accident. In fact the only two theories advanced and the only supportive proofs were as to "accident” or "intentional killing”.
Proceeding into his instructions to the jury, the trial judge listed the four classifications of homicide — felonious, justifiable, excusable and accidental. He specifically said that only felonious homicides were punishable. All elements of the crimes charged were given to the jury, as was the applicable law. To determine whether defendant intended to kill Phyllis Grace, the jury was to "examine all of the circumstances and facts of the case as disclosed by the testimony and evidence of the case”. If the jury was not persuaded beyond a reasonable doubt that defendant had an intent to kill, it would have to return a verdict of innocent. There was no request and no need for additional instructions.
*406Conclusion
The majority has stated that it is our intention to adopt a court rule clarifying lesser included offenses. Until that time, judges will be required to give only requested appropriate instructions as to those offenses (excepting in first-degree murder cases). See People v Henry, 395 Mich 367; 236 NW2d 489 (1975).
I find merit in that opinion, but disagree with the interim theory of what is appropriate if requested.
The "cognate”, "related”, or "allied” lesser offense (it is not in reality "included”) theory as here presented conjures up visions of increased rather than diminished confusion.
It invites appeals because of its formlessness. It blurs the roles of prosecutor, judge and defense counsel. If not contrary to our statutes, it adds a new act or section to the existing legislation.
It threatens due process as to defendant and fundamental fairness as to the people in the preparation and presentation of the case.
Unless the tendencies of past history are altered, we can anticipate in some cases a result opposite that desired by my colleagues. Considering the number of offenses by our definition "related” or "allied” to this or other major crimes, juries presented with foreseeable smorgasbords of possibilities conceivably will return unjustifiable verdicts of guilty.
In my opinion, the theory adopted today neither promotes the efficient and careful operation of the criminal justice system nor is likely to result in a fairer trial for the defendant.
Defendant received a fair trial and the process was not violated. I would affirm the conviction.
Addendum, December 18, 1975: The prevailing *407opinion was changed at this time to try further to define "cognate” offenses. My objections basically remain, so the dissent is submitted as originally written.
32 Mich App 309; 188 NW2d 190 (1971), reversed the conviction and remanded for new trial. 45 Mich App 373; 206 NW2d 453 (1973) affirmed the second conviction.
In People v MacPherson, 323 Mich 438; 35 NW2d 376 (1949), the Court reversed defendant’s conviction because the instructions omitted an element of the offense charged. The trial court had a duty to detail accurately "the elements of an offense, and what must be proved in order to establish such elements”, (p 448.) The Court said at 452:
"Subject to the exception recognized when a fact is not in dispute and is established by competent proof beyond any reasonable doubt, it is the duty of the trial court in a criminal case to indicate to the jury with reasonable certainty the offense with which the defendant is *399charged. As we said in People v Ring, 267 Mich 657, 661 [255 NW 373 (1934)] (93 ALR 993):
" 'The office of the charge is to apprise the jury of the questions involved and the rules of law applicable thereto.’ ”
The Court specifically noted it was dealing with a charge defining the elements of the offense. Similar is People v Adams, 389 Mich 222; 205 NW2d 415 (1973).
The instructions were the basis for a reversal in People v Liggett, 378 Mich 706; 148 NW2d 784 (1967). The Court listed these principles at 714:
"It is settled law of this State that the trial judge should instruct the jury in criminal cases as to general features of the case, define the offense and indicate that which is essential to prove to establish the offense, even in the absence of request. A case may be reversed because the charge omits a legally essential ingredient. People v Prinz, 148 Mich 307 [111 NW 739 (1907)]; People v Kanar, 314 Mich 242, 254 [22 NW2d 359 (1946)]; People v Hearn, 354 Mich 468 [93 NW2d 302 (1958)]. Similarly, without a request, a case may be reversed because of an erroneous or misleading charge as opposed to one which merely omits a pertinent though not legally necessary point. People v MacPherson, 323 Mich 438, 448 et seq. [35 NW2d 376 (1949)]; People v Guillett, 342 Mich 1, 7 [69 NW2d 140 (1955)]; People v Oberstaedt, 372 Mich 521, 526 [127 NW2d 354 (1964)]. Defendant has a right to have a properly instructed jury pass upon the evidence. People v Visel, 275 Mich 77, 81 [265 NW 781 (1936)].”
The conviction was reversed because the trial court at least 11 times incorrectly identified the two defendants.
See GCR 1963, 785.1 making these applicable to criminal trials.
In People v Townes, 391 Mich 578; 218 NW2d 136 (1974), this Court discussed the necessary elements of voluntary and involuntary manslaughter:
"A defendant properly convicted of voluntary manslaughter is a person who has acted out of a temporary excitement induced by an adequate provocation and not from the deliberation and reflection that marks the crime of murder. People v Younger, [380 Mich 678; 158 NW2d 493 (1968)] supra, 681-682; People v Droste, 160 Mich 66, 79; 125 NW 87 (1910); People v Bucsko, 241 Mich 1, 3; 216 NW 372 (1927).
"The elements of involuntary manslaughter, although not completely exclusive of those found in voluntary manslaughter are distinguishable in several respects. They define a crime that originates out of circumstances often quite different from those found in voluntary manslaughter and apply to a defendant who did not proceed with the intent to cause death or serious bodily injury. In the leading case of *404People v Byczek, 224 Mich 106, 110; 194 NW 609 (1923), the Court approved the following definition of involuntary manslaughter:
"' "Involuntary manslaughter is the killing of another without malice and unintentionally, but in doing some unlawful act not amounting to a felony nor naturally tending to cause death or great bodily harm, or in negligently doing some act lawful in itself, or by the negligent omission to perform a legal duty.” ’
"The usual situations in which involuntary manslaughter arise are either when death results from a direct act not intended to produce serious bodily harm, People v Carter, 387 Mich 397, 419; 197 NW2d 57 (1972), People v Austin, 221 Mich 635, 643-645; 192 NW 590 (1923), or when death results from criminal negligence. People v Stubenvoll, 62 Mich 329; 28 NW 883 (1886); People v Townsend, 214 Mich 267; 183 NW 177; 16 ALR 902 (1921).”
See People v Coston, 187 Mich 538; 153 NW 831 (1951), and People v Miller, 250 Mich 72; 229 NW 475 (1930). The Court in People v Hoefle, 276 Mich 428; 267 NW 644 (1936), said that the trial court has a duty "if proper request is made to cover in the charge to the jury the theory upon which the defense is founded, if it is supported by competent testimony”, (p 431.) Also see People v Lane, 304 Mich 29; 7 NW2d 210 (1942), and People v Welke, 342 Mich 164; 68 NW2d 759 (1955).