Concurring Opinion by
Mr. Justice Roberts:I would decide this ease on the basis of the failure by counsel at the trial to except to that portion of the charge to which objection is now made. This should be conclusive of the claim. See Commonwealth v. Chambers, 432 Pa. 253, 247 A. 2d 464 (1968); Com*72monwealth v. Simon, 432 Pa. 386, 248 A. 2d 289 (1968) (opinion in support of the order); Commonwealth v. Williams, 432 Pa. 557, 248 A. 2d 301 (1968) (dissenting opinion). However, I also must point out the inconsistencies in the majority opinion. First, it correctly notes that no objection was made to the charge. Then it proceeds to decide the charge error on its merits, only to indicate by implication that there was no need to reaeh the substantive question because the error was neither basic nor fundamental. As I said in Commonwealth v. Johnson, 433 Pa. 34, 248 A. 2d 840 (1969) (concurring opinion), this. Court must consistently apply its own basic and fundamental test to those cases where the error to which objection is made was not raised in the court below. The only reasonable alternative is to adopt the standard which I have urged in both Simon and Williams. But without doubt it is improper to apply the basic and fundamental error test in some cases and not in others.
I concur in the result.