The official report sets forth all the facts requisite to an adequate comprehension of the various special points ruled in the head-notes. Touching the general grounds of the motion for a new trial, it is enough to say that the evidence showed with full legal certainty that the killing was murder. In all material respects the evidence on the second trial was substantially the same as on the first,. In reviewing the first trial this court felt no dissatisfaction with the verdict itself. The grant of a new trial was based exclusively upon error committed by the presiding judge. Groom v. The State, 85 Ga. 718. The second trial was free from any error sufficiently material to require, or even to justify another trial in so plain a case..
The eulogy of the Chief Justice indulged in by one of the counsel for the State, even had it been less exaggerated and extravagant, or more deserved, was out of time and out of taste. The subject of it condemns it as a gross irrelevance to the matter in hand at the trial, and his associates both fully agree with him. He is far from being indifferent to compliment or praise, but his sense of justice and propriety repels with moderate indignation all praise accorded him, however sincere, which has for its object, the influencing of juries in deciding cases. There is not a shadow of legitimacy in the use of such means for such an end. No doubt the presiding judge, without any request from the accused or his counsel, ought to have interposed and cut short, or wholly prevented, the improper and irrelevant declamation of the State’s advocate; and were, the guilt *435of the accused doubtful, the failure to do so might be good cause for a new trial. But we think it affords no absolute right to a new trial irrespective of the substantial merits of the case. For it to have this effect, there should have been a motion to withdraw the case from the jury and declare a mistrial. By failing to make such a motion and by going on with the pending trial without objection, thus taking the chance of acquittal, the accused may fairly be held to have waived his right to complain.
On the whole, a majority of this court are thoroughly convinced that no error Was' committed in overruling the motion for a new trial; and though one member of the court entertains some doubt, he concurs in the judgment of affirmance. Judgment affirmed.