specially concurring. In the dissenting opinion is suggested a new rule of' practice in which I can not concur. In my humble opinion it would place a limitation upon the right to make a motion for a new trial, upon the ground of the improper admission or exclusion of evidence, which is not only novel but wholly unwarranted. Section 1086 of the Penal Code provides: ' “ The superior court may grant new trials in all eases when any material evidence may be admitted to, or illegally withheld from, the jury against the demand of the applicant.” This gives the movant for a new trial the original right to test the validity of the rulings of the trial court upon evidence. The view expressed by the minority in paragraph 2 restricts that right and hampers it by placing upon it a condition not authorized by any legislative enactment. As the rule now 'stands in the code, a litigant who is dissatisfied with a particular ruling of the court as' tó the introduction of evidence may have it reviewed, if proper objection is made at the proper time during the trial, and if the point is properly presented in the motion for hew trial. Under the view of the minority, no ruling of the court touching the admission of testimon}^, however erroneous, can bé presentéd for review unless there has been an antecedent motion for a mistrial immediately upon the heels of the ruling of tlie trial judge. The case at bar does not raise the question as to the propriety of remarks made by the trial judge in the hearing of the jury, or as to any statement of facts made by the judge in the hearing of the jury in ruling upon the admission of the evidence; and therefore, confessedly, the cases cited are not in point.
While judicially I am bound by the ruling in the Perdue case, 135 Ga. 277, which has since been followed in Moore v. McAfee, 151 Ga. 270, Barnett v. Strain, 151 Ga. 553, and Kay v. Benson, 152 Ga. 185, it does not appeal to my personal sense of justice or to my individual ideal of good practice. Questions of financial cost and personal' convenience, as I see it, should never be considered in the administration of justice. From the executive *131standpoint the greatest possible economy should be practiced by a judge, but in judicial investigations there should be no competition between economy and justice in the trial of a case. The. justice which is from God, and which man can only feebly and humbly imitate, can not stoop to count shekels of dross which lie at her feet, while vindication of right and redress of wrong is the core of her head and her heart. But the Perdue case and others just cited are confined to rulings upon remarks by the judge; while in the case at bar the minority of the court contend that by “ sound deduction ” the same rule should be applied to what is said by a witness. In the case now sub judice the trial judge merely ruled (in the briefest manner possible, and in language which is not only unobjectionable but which is not objected to by the plaintiff in error) upon objections made to a portion of certain testimony, and upon a later motion to exclude all testimony upon a particular subject named. The code provides that the superior court may grant new trials in all cases whenever any material evidence may be illegally admitted to, or withheld from, the jury against the demand of the applicant.
More than 300 cases cited in 9 Encycyopedic Digest of Georgia Reports (Miehie), 695-698, and 8 Cumulative Supplement, 1022-1023, support the right to review the wrongful admission of illegal evidence directly by a motion for a new trial, and not by the cireumambulatory route which calls for a motion for a mistrial as an essential prerequisite in reaching the goal. To authorize the adoption of the rule proposed by the minority of the court, there must be added to the terms of section 1086 of the Penal Code a proviso to the effect that the applicant or movant has made his motion for a mistrial. In my opinion this would be an exercise of legislative functions which in my opinion we should not seek to usurp. It is conceded upon all sides that the trial judge erred in the admission of the testimony in this case. The judge himself admitted it by withdrawing the testimony from the jury on his own motion, after he had returned from dinner and had taken time to reflect upon the matter; and so to my mind it is not a case of a party trifling with the court by trying to take two chances when he should have elected one or the other mode of conduct, as pointed out in the Perdue case, supra. The defendant’s counsel did all that has heretofore been deemed nec*132essary to do. He properly objected to the testimony as it was being admitted piecemeal; and at the end of all the testimony to which he had objected, he made a timely and appropriate motion to exclude all of it. After the jury had had this testimony for about an hour and a half, the judge, of his own motion, withdrew it, though he did not expressly tell the jury that they should utterly disregard it, either at that time or in his charge. I-think that every experienced practitioner knows that a mere statement by a judge that certain testimony is withdrawn from the jury is but the application of a fictitious remedy, if the evidence previously admitted is of such a nature as to have been originally harmful and prejudicial.
“You may break, you may shatter, the vase if you will;
But the scent of the roses will linger there still.”
You may draw the nail from the plank, but the hole in the plank still remains. Jurors, like other human beings, are unconsciously too much affected by strong mental impressions for these impressions to be nicely segregated from the mass of evidence by a mere direction that these impressions are to be obliterated, though they be told, even by the judge, that the object which created those impressions has been removed and is now out of their sight.
Since I am not convinced that the proposition in the second paragraph of the minority opinion is a “ sound deduction ” from the rulings in the cases cited,'I can not consent to the hanging of this defendant. I agree with Judge Bleckley that a defendant, though innocent, may be legally hanged. Such an instance may present a case for executive clemency. But I can not agree that even a guilty man ought to be illegally hanged. I think, under sound principles of law and precedents too numerous for citation, that the court erred in refusing a new trial.