¶1(to concur). I concur with the results reached in the Chief Justice’s opinion, but I would make two points.
¶2First, as the prosecutor argues, the record in this case does indeed show that the court’s instruction on aiding and abetting was required by the character of defendant’s final argument, and without that final argument the court’s instruction on aiding and abetting would not have been apposite. So the law of this case on the court giving instructions without notifying counsel before their final arguments is limited by the facts in this case.
¶3Second, to review the law on counsel being advised, ordinarily counsel should be informed of instructions before closing arguments are completed in order to permit these arguments to be shaped accordingly. GCR 1963, 516.1 applies this requirement to requested instructions. The logic behind this requirement, however, is equally applicable to sua sponte instructions. Thus, the trial court may and should formulate its own instructions where the requests do not adequately cover issues in the case. However, where these issues *482were raised prior to closing argument, these too should be reviewed with counsel "in order to argue the facts in the light of the law as the court will charge the jury”. 2 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), p 565. There is no good reason why the jury should get the benefit of an argument couched in terms of, and related to, the instructions it will receive only when those instructions have been requested by counsel.
¶4Where, however, in the course of closing argument, counsel raises a brand new issue, an exception to this principle is mandated. Thus, in United States v Shirley, 435 F2d 1076 (CA 7, 1970), cited by my Brother the Chief Justice, counsel himself inserted the theory while delivering his closing argument, thus making it necessary for the trial judge to modify his charge to the jury. Since the situation which created the need for the new instruction did not arise until closing argument, it would have been impossible for the trial judge to notify counsel prior to that argument. This is precisely the situation before us today, and the reason why I find, under the facts before us, no error was committed.