dissenting. We do not take issue with any ruling made in the cases cited on this subject by our associates, as follows: Wade v. State, 12 Ga. 25; Wilson v. State, 87 Ga. 583; Tiller v. State, 96 Ga. 430; Frank v. State, 142 Ga. 741; Brown v. State, 151 Ga. 497. We do point out that the principle quoted from Martin v. State, 51 Ga. 567, has- been modified by Roberson v. State, 135 Ga. 654, 656 (70 S. E. 175). In our opinion, notwithstanding the fact that the accused had the undoubted right to be present throughout the trial, and to see and hear everything that took place, whatever error was committed against him under the facts stated, he waived his right to complain by withholding all objection and allowing the trial to proceed until the rendition of the verdict against him, thus taking his chances upon an acquittal. There is no express constitutional or statutory provision making it obligatory that the accused be present at all stages of the trial. The principle is evolved from that clause of the constitution above mentioned with regard to the right of the accused to be confronted by the witnesses. We readily concede that it is the safe and proper practice upon the part of trial judges to see that the accused is present at all stages of the trial. The right to be present, however, is one that may be waived either expressly or impliedly. The Penal Code (1910), § 5, *434provides as follows: “Laws made for the preservation of public •order, or good morals, can not be done away with or abrogated by .any agreement; but a person may waive or renounce what the law has established in his favor, when he does not thereby injure •others, or affect the public interest.” Weldon v. Colquitt, 62 Ga. 449 (35 Am. R. 128); Logan v. State, 86 Ga. 266 (12 S. E. 406); Vaughn v. State, 88 Ga. 731 (16 S. E. 64). The principle is well ■established that one on trial for a criminal offense waives his right to be present on the rendition of the verdict by his voluntary absence, as when -under bond. Barton v. State, 67 Ga. 653 (44 Am. R. 743); Nolan v. State, 55 Ga. 521 (21 Am. R. 281); Robson v. State, 83 Ga. 166 (9 S. E. 610); Tiller v. State, 96 Ga. 430 (supra). Even in Frank v. State, 142 Ga. 741 (supra), •cited by our associates, the principle of waiver is acknowledged, for •on no basis could a new trial have been denied the accused except by his failure "to include in his former motion for a new trial the ground then insisted upon, to wit, that the verdict was received in his absence.
"We think it unnecessary to cite authority to the effect that the accused would be bound by an express waiver. "We think the accused is equally bound by an implied waiver, provided it clearly appears from the facts. In Williams v. State, 150 Ga. 641 (104 S. E. 776), on the trial of a capital case one of the counsel for the .accus.ed opened his argument and spoke for ten or fifteen minutes, at the expiration of which time he observed the absence of the prisoner and called the attention of the presiding judge to it, who immediately directed the prisoner to be brought into the courtroom, suspending the proceedings until the prisoner was brought in. After conviction, one ground of the motion for new trial •complained of this incident. The court held this to be no cause for the grant of a new trial. The ruling was based upon the principle that “ counsel had- waived the prisoner’s absence;” and moreover that what was said and done was not a substantial violation of the prisoner’s rights. In Smith v. State, 59 Ga. 513 (27 Am. R. 393), a ground of the motion for new trial was based on the fact that the prisoner on trial for a felony was confined in jail at the time the verdict was received. The court held that he had waived the right to be present because “there was a consent for the jury to disperse after the verdict was agreed upon, and for *435the verdict to be returned into court by the foreman next morning.” Bleckley, J., speaking for the court, said: “ He ought to have been brought from the jail, so as to be present at the reception. But we think it was merely an irregularity, and that no matter of substance was involved. Having surrendered his right to poll the jury, no other of any value to him remained, for the exercise or protection of which his presence was important. Had he been in court, the result must have been the same as it was. Nothing took place in his absence, but the mechanical act of receiving the verdict, as the consent had provided it should be received. If he had been present the act would have been no less mechanical.” Ih the present ease, as mentioned above, the jury viewed the automobile without a spoken word, so far as the record discloses. Had he been present no benefit to him is conceivable, and his absence, therefore, was not to his injury. In Cawthon v. State, 119 Ga. 395 (46 S. E. 897), one ground of the motion for new trial was based on the action of the court in receiving the verdict in the absence of the accused. The accused was on trial for murder, and the defendant was in jail at the time, and the verdict finding him guilty was received in his absence. In this case the question was elaborately discussed, and many authorities were cited. It appeared that counsel, in the presence of the- accused, made an express waiver of the presence of the latter, but the accused denied the authority of the counsel to make the waiver. The court declined to decide whether counsel was legally authorized to waive the presence of the accused, but said: “We can see no good reason why the accused would not be bound by an express waiver made in his presence. Such a waiver is to all intents and purposes the waiver of the client; It would be trifling with the court to allow it to act upon a waiver thus made, and then impeach its action on the ground that counsel had been guilty of an unauthorized act. . . In any event, when the accused shows that his counsel had made an express waiver of his right to be present, and had agreed with the judge that no exception would be taken to the reception of the verdict in his absence, it will be presumed that the accused was present when the waiver was made, in the absence of a showing to the contrary, and especially would there be such a presumption, if, as claimed, counsel had no implied right to make the waiver.” This amounts to holding that there may be an implied waiver on *436the part of the accused of his right to be present; for in the case just cited the effect of the court’s ruling was that what happened constituted an implied consent on the part of the accused that his counsel might commit him to an express waiver of his presence. In Vaughn v. State, supra, where the accused was on trial for murder, one ground of the motion for a new trial complained of an irregularity in making up the list of jurors put upon him. It was held that the accused “ will be deemed to have waived the formality by his silence and conduct.” Here there was an express acknowledgment of waiver by silence. In Sarah v. State, 28 Ga. 576, it was held: “ As the prisoner may waive even a trial itself, and be capitally punished upon his own confession of guilt, he may waive every minor right or privilege. The greater includes the less, or the whole the parts.” See also Towns v. State, 149 Ga. 613(1), 614 (101 S. E. 678).
When, during the trial of a criminal case, the court commits some error which will render nugatory any verdict of guilty thereafter rendered, 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. The defendant can not take the chances of an acquittal, when the trial is rendered vain and nugatory by such error, and after conviction make such ruling a ground of a motion for new trial. When such error is committed the defendant should move for a mistrial; and then, after the court overrules his motion for mistrial, he can make the same a ground of a motion for new trial. This principle is deducible from the decisions of this court involving similar errors committed by trial courts. 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 (107 S. E. 530); Kay v. Benson, 152 Ga. 185 (108 S. E. 779). See dissenting opinion of Beck, P. J., and Hines, J., in Campbell v. State, 155 Ga. 127 (116 S. E. 807). So we think we are abundantly justified in concluding that the effect of the failure of the accused to make any objection to the occurrence, and his acquiescence in the continuance of the trial, taking the chances of acquittal, was a waiver of his right to complain. We are further of the opinion that he should have moved for a mistrial if he wished to complain of the error, and that in the absence of a motion for mistrial he can not complain of the error for the first *437time in a motion for new trial. He should have invoked some ruling on this matter at the time of the occurrence. We regard it a' sound rule that there must be exception taken by the defendant to matters occurring in the trial court, and he must invoke some ruling thereon, and then such ruling must be adverse before he can invoke in this court any consideration of the error complained of.
Under the facts of this case, we think the defendant waived by implication the error alleged to have been committed by the trial court, (1) because he made no objection thereto, and (2) because he did not move for a mistrial at the time of its occurrence.