dissenting.
The point on which the majority of the court think that the court below should be reversed and a new trial be granted, is embodied in the fourth ground of the motion for a new trial, which is as follows: “Because the court erred in permitting T. J. Folds over defendant’s objection to testify as to a conversation he heard between defendant and a brother of witness a day or two after the fight took place, the examination of said Folds having taken place out of hearing of the jury, to determine whether his testimony as to said confession should go to the jury; when said Folds said, £I am sorry now that I did not break every bone in his body.’ The court permitted this testimony, over defendant’s objection, to be stated in hearing of the jury, but after the witness modified by saying, £ defendant said he made the remark because the prosecutor had aggravated him so since the difficulty,’ the-court ruled the testimony out, not until it had been stated in presence of the jury.” Before certifyingthe correctness of this ground, the court modified it by a note, which is as follows:
“The testimony was ruled out, on motion of defendant’s attorney, and the court stated at the time to the jury that they were not to consider the evidence ruled out.”
It will thus be seen that the presiding judge followed the practice commended in the case of Hall vs. The State, 65 Ga., 36, had the examination upon the admissibility of the evidence in this case conducted out of the hearing of the jury, and admitted or decided to admit this saying of defendant • “ I am sorry now that I did not break every bone in his body but after that much had. gone, to the *61jury, and the witness added that “ defendant said he made the remark because the prosecutor had aggravated him so since the difficulty,” on motion of defendant’s counsel, the whole of it was ruled out, and the court told the jury not to consider it at ¿11. So that the question here is whether, when a judge admits a saying like this, and then a motion is made to rule it out by the defendant, and it is ruled out, a new trial should be granted on that ground. In my judgment, the court below was right in overruling the motion for a new trial on this ground. The evidence which the jury heard is simply the expression of regret by defendant that he had not broken every bone in the prosecutor’s body, because he had aggravated him so since the difficulty. Even if the rule were that the withdrawal of evidence illegal, and the charge not to consider it, would hot heal the error of its admission, in some exceptional' cases, in my judgment, this is not a case' to be excepted. The assault and battery was not denied. Every witness proved it—the defendant’s statement admitted it—the only question was, did the opprobrious words used by the prosecutor justify it ? The sayings admitted were, therefore, in no conceivable view that I can take, so important as to make this case an exception to the general rule that, where a judge admits evidence illegally* but afterwards rules it out, and tells the jury not to consider it, a new trial will not be granted. I do not recall a single case where, such being the facts, a case was ever reversed on that ground by this court.
In respect to the analogy between this case and the case of Hall vs. The State, in 65 Ga., 36, my eyes are too dull to. see it.
■ That is a case where the whole examination touching confessions of the defendant, and how far extorted by fear, was had in the- hearing of the j ury, where there was no evidence of guilt, except circumstantial; but the confessions of the defendant alone involved him in guilt;where the issue was murder, and-who committed the horn-*62icicle; where a pistol was fired just over the defendant’s head to make him confess; where the scene occurred m the court-house, and the guard itself thus illegally extorted the confessions; where the evidence was not admitted, and therefore not ruled out on motion of defendant’s counsel, as here ruled; where the jury were not told, as here, not to consider it, but where every man on the jury knew that defendant had confessed his guilt, just as well as if he had confessed it to them, and believed it, though it was extorted ; and where the preservation of the great rule that extorted confessions should not criminate men, constrained this court to rule that, in that case, “impartial justice” to the negro “ demanded a new trial.”
Mark the language of the accurate and cautious judge who delivered the opinion in Hall vs. The State, supra: “ It is the unanimous judgment of this bench that, where such preliminary examinations as this are to be had, the better practice is, and impartial justice demands it, that the jury should be retired from the box whilst the admissibility of the evidence is considered by the court.” The words, “ as this,” with the word “ such,” qualify the sentence, and control the meaning of the judge; and great would be the astonishment of Judge Crawford to ascertain that the principle thus declared and qualified had been applied to a case such as this now at bar. ■ Indeed, in 65 Ga., 509, Judge Crawford himself alludes to the ruling in Hall vs. The State, and again emphasizes the elaborate statement made of the facts there, and the difficulty of dislodging such impressions from the jury.
I forbear to say aught about the facts of the case—the age of the prosecutor and the vigorous manhood of the defendant; the provoking language of the man of seventy-six, who was beaten, and the energetic assault of the man of twenty-five, who jerked him out of his buggy by the beard, to the ground, and pummelled him there, with demands that he take back the provocation, because the jury has passed on all that; nor shall I cite the numerous *63cases where this court has ruled that even the erroneous charge of the court, or the illegal admission of evidence, though not withdrawn, would not suffice to grant a new trial here, over the discretion of the presiding judge, unless that discretion has been abused; ñor show that this case falls within many of them, even if the evidence had not been withdrawn at all.
It is the principle ruled from which I dissent; and the duty which I owe to the state, not to permit such a principle to be applied to such a case without protest, requires me, with the utmost respect for my able and learned colleagues, to dissent from the judgment of reversal.