dissenting. I dissent from the opinion of the majority of the court in this case; and will briefly state my reasons.
1. The general rule is that when the court has admitted illegal evidence which is subsequently ruled out, this subsequent action of the court will cure the error. Conceding that this rule is subject to exceptions, and that where the illegal evidence may have worked such harm or injury to the accused as to render it probable that the subsequent withdrawal did not heal the injury inflicted by its improper admission, the error would be sufficient ground for the grant of a new trial (McDonald v. State, 72 Ga. 55; Thompson v. State, 12 Ga. App. 201, 76 S. E. 1072), the defendant elected to cure this error by a motion to rule out the illegal evidence. His counsel must have thought that this remedy was sufficient to cure the evil done his client by the illegal admission of the evidence ruled out. Having elected to pursue this remedy, after the evidence had been illegally admitted over timely objection, and after the court had granted all that he asked for, he can not afterwards complain that his own chosen method of remedying the evil done him was insufficient.
2. Prejudicial remarks made by the court in the presence and hearing of the jury furnish no good ground for a new trial, unless a motion to declare a mistrial is made by the party aggrieved, and is refused. Perdue v. State, 135 Ga. 277 (69 S. E. 184); Moore v. McAfee, 151 Ga. 270 (106 S. E. 274); Barnett v. Strain, 151 Ga. 553 (5) (107 S. E. 530); Kay v. Benson, 152 Ga. 185 (108 S. E. 779); Rogers v. State, 18 Ga. App. 332 (89 S. E. 460); Stapleton v. State, 19 Ga. App. 36 (13) (90 S. E. 1029); Harrison v. State, 20 Ga. App. 157 (6) (92 S. E. 970); Grigg v. State, 22 Ga. App. 637 (2) (96 S. E. 1049); Gilbert v. State, 27 Ga. App. 604 (4). (109 S. E. 697). The reason of this rule is, that, when a remark of the court is so harmful and prejudicial to the defendant that the subsequent trial will be vain and nugatory so far as the defendant is concerned, and will furnish ground for the grant of a new trial if he is convicted, the duty rests upon the defendant, at the stage of the trial when the incurable error occurs, to move for a mistrial; and unless he does *129so, the harmful and prejudicial remarks of the court will furnish no ground for the grant of a new trial. The defendant can not take the chances of an acquittal and thereafter avail himself of the error committed by the court. By a sound deduction, it follows from the above ruling that when illegal evidence is admitted by the court over the objection of the defendant in a criminal case, which evidence is so harmful that its evil effect can not be cured by its,being ruled out by the court, and which will render nugatory any verdict of guilty which may thereafter be rendered against the defendant, the proper procedure is for the defendant to move for a mistrial, ■ which, if- overruled, will entitle him to the grant of a new trial; and after such evidence is admitted, but is afterwards ruled o,ut by the court on motion of defendant, the'admission of such evidence will furnish no ground for a new trial unless a motion to declare a mistrial is made by the defendant and refused by the court. After such illegal evidence is admitted, which is subsequently rule out by the court on motion of defendant, the defendant can not take the chances of acquittal, when the trial is rendered vain and nugatory by the admission of such evidence, and then after conviction make the admission of such evidence the ground of a motion for new trial. If the defendant moves to rule out such evidence, which motion is granted by the Court, and thereafter he proceeds with the trial, taking the chances of a verdict of acquittal, he will be deemed and held to, have waived the error committed by the court in the admission of such harmful and prejudicial evidence. This' point was not raised or passed upon in McDonald v. State, and in Thompson v. State, supra.
3. It has never entered' my mind to hold, and nothing said above can be construed to hold, that a motion for a new trial is not a remedy for the correction of the admission of illegal testimony. This is expressly provided.by statute (Penal Code, § 1086), as provision for the grant-of a new trial on account of harmful and prejudicial remarks of the judge' is likewise made. Penal Code, § Í089. What I mean to say is, that the admission of harmful and prejudicial evidence, the- evil of which can not be cured by being ruled out and by an instruction of the court to the jury to disregard it, can furnish no’ ground-for'the grant of *130a new trial, unless a motion for a mistrial is made by the defendant on account of its evil effect, and is overruled.
I am authorized to say that Presiding Justice Beck concurs in this dissent.