(dissenting) :
I respectfully dissent.
I would hold that the trial judge exceeded the bounds of judicial discretion in refusing to permit the prosecuting attorney to take the stand to correct apparently perjured testimony offered by his own witness.
This case is freakish but one that involves the broad principle overriding all rules of the game in a system based on the fiction that a trial is a duel between two equal adversaries. That principle is the concept of fundamental fairness. It is what due process is all about. Brady ' v. Maryland, 1963, 373 U.S. 83, 83 S.'Ct. 1194, 10 L.Ed.2d 215 rests squarely on it.
In Brady the Supreme Court held that “suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” 373 U.S. 87, 83 S.Ct. 1196. But, the Court says, the prosecutor did not suppress any evidence; he made it known to the defendant’s counsel and to the trial judge; and the trial judge, after weighing competing values, properly exercised discretion in declining to allow the prosecutor to testify.
This reasoning does violence' to the principle of fundamental fairness in trial process. If the prosecutor had withheld the information, unquestiona*286bly Brady would have controlled this case. The referee’s ruling here had the same effect of suppressing evidence favorable to the accused as if the evidence had been withheld by the prosecutor.
A criminal trial is unlike a football game. The referee’s decision to allow a fifth down is not subject to review. The trial judge’s ruling is more a clearly erroneous call than a judgment call, but in this contest even the referee’s judgment calls are subject to review.
Defense counsel fully protected the defendant’s rights. He entered an objection, based on Brady, as soon as Mrs. Rosch gave the disputed testimony. During the recess that followed the prosecutor offered to testify that contrary to what Mrs. Rosch had said, she had not told him that she could identify Davila-Nater. When the trial resumed, defense counsel called the prosecutor as a witness. The trial judge refused to allow him to take the stand. Defense counsel objected. The prosecutor was in court: there was no obligation to substitute a stipulation for live testimony and there is no reason to think that the trial judge would have permitted the admission of any stipulation, written or oral, after having refused to allow the prosecutor to testify.
There is no doubt that the ruling prejudiced the defendant. Mrs. Rosch’s testimony surprised the defense counsel. In his opening statement the prosecutor had said that Mrs. Rosch would not identify Davila-Nater. If he had been allowed to take the stand his testimony would have shattered or at least cast doubt on the credibility of the only eyewitness who was not a co-conspirator. It is meaningful indeed that the jury acquitted the defendant of the charges based on the second robbery — when the teller was unable to make an ir.-court identification.
I would reverse for a new trial. The district judge’s ruling was such an abuse of discretion as to violate the principle of fundamental fairness that constitutes the core of procedural due process.