dissenting. I think several grounds of the motion are meritorious, but shall only consider one ground. The seventh ground of the amendment to the motion for a new trial, as approved and certified as true by the trial judge, is as follows: “During the argument of the solicitor-general he took from the alleged trunk of the defendant a pair of silk “ teddie bears,” which is an undergarment worn by women, and exhibited the same to *292the jury, and told the jury that the defendant. wore finer clothes than his wife, or any of theirs, and referred to the defendant as a negro woman, and exhibited the clothes as that of a negro woman, stating that she wore finer clothes than the jurors’ wives or most anybody’s else in the court-room. Immediately upon the solicitor-general arguing such facts, and exhibiting such clothes, and making the statement as outlined above, counsel for the defendant moved for a mistrial in the case, for the reason that this act on the part of the solicitor-general could have but one influence, and that would be to prejudice the minds of the jury against this defendant, and for the reason that the clothes exhibited would not in any way illustrate the guilt or innocence of the defendant; and for the solicitor-general to exhibit this item of clothing was an act prejudicial to this defendant, which would necessarily tend, and its only purpose was on the part of the solicitor-general, to prejudice the minds of the jury; which motion the court overruled.” In my opinion the court erred in refusing to grant a new trial on this ground of the motion, if for no other reason. The argument of the solicitor-general was not only wholly irrelevant to any issue in the case, but, as insisted by the defendant, it could serve no other purpose than to prejudice the defendant in the minds of the jury and to deprive her of that fair and impartial trial to which she was entitled.
It may be,- that, by administering a proper rebuke to the solicitor-general and by cautioning the jury to pay no attention to this portion of the argument of the learned State’s counsel, the condition created thereby might have been ameliorated or the incident might even have been entirely obliterated from the minds of the jury; but, so far as appears from the record, the court, by failure to act otherwise than to overrule the motion for a mistrial, tacitly and impliedly sanctioned and enforced the argument of the solicitor-general. In such a situation, when decisive action is imperative to prevent harm, silence must be construed as approval. The defendant was on trial for murder. The trunk and its contents were admitted, as ruled by the court, solely for the purpose, as stated by the solicitor-general, of showing that the defendant had intended to leave immediately, because the trunk was packed, which might or might not be a circumstance of more or less probative value; but the nature and quality of clothes worn by the *293defendant could shed absolutely no light upon the question as to whether the accused was the perpetrator of the crime of which she stood charged.
The constitution of this State guarantees a fair and impartial, unbiased, -and unprejudiced trial to every person charged with crime; and in my opinion there can be no question that the action of the solicitor-general, complained of in the third and seventh grounds, was highly prejudicial to the accused. In the trial of a negro slave, Jesse v. State, 20 Ga. 156-169, this court said: “It may not be amiss, however, to observe, that while the safety of society requires the faithful prosecution of offenders against the laws, the State does not ask their conviction but upon a calm and dispassionate investigation of the charges against them.” Officers of the court should be most careful in the language employed in the argument of State’s cases to the jury. It is never necessary to so argue a case as to rouse the passions of a jury. Where counsel in the presence of the jury make statements of prejudicial matters which are not in evidence, it is the duty of the court to interpose and prevent the same. Civil Code, § 4957.
The defendant pursued a method prescribed by law, though if, as above indicated, the judge had not been of the opinion that the injurious effect was incurable, and had adopted some other corrective measure, possibly a new trial might not have been required. “ If the error of the judge . . in permitting prejudicial remarks by counsel was not sufficiently cured by instructions of the court to the jury, -counsel should have promptly moved for a mistrial.” Livingston v. State, 17 Ga. App. 136 (3) (86 S. E. 449). As the statement of the solicitor-general remained unquestioned before the jury, it must be presumed, in the absence of any positive knowledge as- to how it affected the jury, to have been 'prejudicial to the accused. “ Improper conduct on the part of counsel in making an unauthorized statement of fact in the hearing of the jury is not to be corrected by ‘ruling out’ the statement, but by instructing the jury to disregard the same, or by declaring a mistrial if, on account of the grossness or seriousness of the impropriety, the ends of justice so require.” Collins Park &c. R. Co. v. Ware, 112 Ga. 663 (37 S. E. 975). “The State, as accuser in a criminal proceeding, does not seek one of its citizens convicted unless the evidence shows his guilt beyond a reasonable doubt; nor *294will it permit its prosecuting officer to use any unfair means in the trial, or illegal argument in his address to the jury, to the prejudice of the accused. Where, therefore, a solicitor-general in his address to the jury uses highly improper language not authorized by the evidence or any fair deduction therefrom, and the counsel for the accused objects thereto and moves the court to declare a mistrial, which the court refuses, and exception is taken to the ruling, this court will reverse the judgment and grant a new trial in the interest of justice and of -fair and impartial trials.” Ivey v. State, 113 Ga. 1062 (39 S. E. 423, 54 L. R. A. 959).