concurring specially. I concur in the opinion of the majority of the court; and as to the view of the minority I submit the following:
“ The superior courts may grant new trials in all cases when any material evidence may be illegally admitted to or illegally withheld from the jury, against the demand of the applicant.” Penal Code (1910), § 1086. The-evidence admitted in this case, and subsequently ruled out) was material evidence, and I am of *133tbe 'opinion that it was illegal evidence. The general rule is that when the court has admitted illegal evidence to go to the jury, and subsequently rules it out, the subsequent action of the court will cure the error in allowing the illegal evidence to go to the jury. There seems to'be at least one exception to this rule; and that is where the illegal evidence, although subsequently ruled out, may have worked such harm or injury to the accused as to render it probable that the subsequent withdrawal of it from the jury did not heal the harmful effects which had been inflicted by allowing such evidence to go to the jury. McDonald v. State, 72 Ga. 55. It has been held in such cases that a new trial will be granted. Ibid. It will be seen, therefore, that a motion for new trial embracing such ground is an available remedy for the defendant to secure a new trial. I am of the opinion that the case of Perdue v. State, 135 Ga. 277, and similar cases, where it was held that a motion for mistrial must be made and overruled in order for the defendant to secure a new trial, are not in point. In those cases exception was taken to remarks made by the trial judge or by counsel which were deemed and held prejudicial; but in the instant case there was a mere ruling of the court on a question of the admissibility of certain evidence, and the court first admitted it and then ruled it out. The testimony of the witness being material, harmful, and prejudicial to the defendant, I am of the opinion that it should work the grant of a new trial. Who can say, in the language of Blandford, J., in the McDonald case, supra, that the subsequent ruling out of harmful and prejudicial evidence healed the wound which had been inflicted? Inasmuch as a motion for new trial in such cases is an available remedy, as stated above, I do' not think that it is necessary or required under our law, in order for a defendant to obtain a new trial for the admission of illegal and harmful evidence which has been admitted and subsequently withdrawn from the jury, that a motion, for mistrial should be made. To so hold would be to say that whenever a trial judge rules on questions of the admissibility of evidence which is illegal and harmful and which is admitted but subsequently ruled out, a motion for mistrial shall be made in every such case, before the movant can be granted a new trial. I do not think this is required under the statute, or the decisions of this court.