(concurring). I agree that it was fundamental error requiring a new trial not to have had the jury made aware that Roseboro, who was one of the four persons involved in the September 5, 1971 incident, had at one time stated under oath that he and not defendant had actually stabbed Nigro. However, I cannot subscribe to the criticism of the trial judge’s handling of the Roseboro situation when *381it was presented to him during the early stages of defendant’s trial. The majority opinion describes it as the trial judge being informed “that Roseboro wanted to testify for defendant.” It was much more than that.
As I read the transcript, when defendant’s counsel and the assistant prosecutor sought a conference with the trial judge they must have had in mind the possible dismissal of the atrocious assault and battery charge against defendant. Defendant’s counsel informed the court that Roseboro had told him and the assistant prosecutor that “I don’t want to see someone blamed for something I did.” Defense counsel then suggested “* * * in the interest of justice * * * your Honor ought to hear from this individual.” The trial judge said he had discussed the matter in chambers with counsel and understood that Roseboro desired “to enter a plea of guilty yourself.” He thereupon questioned Roseboro who stated that he, not defendant, was the one who actually had stabbed Nigro and indicated that he would plead guilty to such a charge. It was at that point that the trial judge insisted that Roseboro have counsel, adding “and after you speak with counsel, if that’s your desire to plead guilty to an accusation, we’ll proceed in that way.”
While nothing was said directly about dropping the charge against defendant, I think it is implicit in the overall picture. There was no purpose in defense counsel and the prosecutor taking up with the court the matter of Roseboro’s “desire” to plead guilty to the stabbing, unless it included consideration of the dismissal of the atrocious assault and battery charge against defendant. Certainly, if the State had filed an accusation against Roseboro, as the trial judge indicated would be done, and Roseboro pleaded guilty, it would have been incongruous for the State to thereafter contend that it was really defendant, and not Roseboro, who stabbed Nigro. (No theory of aiding and abetting is involved.)
In the circumstances, I think the trial judge acted quite properly.
Sullivan, J., concurs in result.
*382For reversal and remandment — Acting Chief Justice Jacobs, Justices Hall, Sullivan, Pashman and Clifford and Judges Oonford and Collester—7.
For affirmance—None.