(After stating the foregoing facts.) The Penal Code (1910), § 971, declares that “at any time before j'udgment is pronounced, the prisoner may withdraw the plea of ‘guilty,’ and plead ‘not guilty.’ ” In Griffin v. State, 12 Ga. App. 615 (77 S. E. 1080), in construing this section, it is held that before sentence is pronounced upon the prisoner, he has a right to withdraw his plea of guilty, but that after sentence is pronounced, it ceases to be a right of the prisoner and then may be allowed in the discretion of the presiding judge. The majority of this court are of the opinion that the facts of this case do not constitute an exception to the rule announced in that case. The right which the statute gives to the prisoner to withdraw his plea of guilty before judgment is pro*131nounced is without qualification. If, however, the trial judge should be satisfied that the prisoner is endeavoring to perpetrate a fraud upon the court by first pleading nqt guilty and then withdrawing that plea and then pleading guilty, and then again withdrawing the latter plea and again pleading not guilty, for the purpose of delaying his trial, or of taking advantage of the fact that the juries for the term have been discharged and the witnesses for the State have been excused, the judge would be justified in not allowing the prisoner to exercise this right; but this would require very clear and strong proof of misconduct on the part of the prisoner or his counsel. Thé fact that if the prisoner is allowed to withdraw his plea of guilty, his case can not be tried at the term in which this occurs, or that the State’s witnesses have been discharged, and that the case would have to be continued, would not be sufficient to deprive the prisoner of 'this statutory right. It should further appear that this situation has been brought about designedly by the prisoner, for the purpose of misleading or deceiving the court in the manner indicated. The record does not show that this was the purpose of the prisoner or his counsel, and it will not be assumed that such was the purpose. The prisoner had only once entered a plea of guilty, and counsel had asked that sentence be postponed, presumably for the purpose of allowing him to procure exculpatory statements or affidavits in behalf of his' client.. While the record does not show the fact, it is fair to presume that between the entering of the plea of guilty and the day for imposition of sentence, the attorney for the prisoner, or the prisoner himself, may have discovered evidence in his favor. It is not the purpose of the law to invite pleas of guilty by persons charged with crime, but rather is it the purpose of the law to guarantee to all persons charged with crime a trial by a jury. Before depriving a man of his liberty or his property trial judges would prefer to hear all the evidence and to have the support of a verdict of a jury upon that evidence, rather than impose sentence based upon a plea of guilty.
It has been suggested by learned counsel for the State that if the accused, under the facts in the present case, were allowed to withdraw his plea of guilty and enter a plea of not guilty, he might on a subsequent trial set up the first trial, when his ease was partly investigated by the jury, as former jeopardy. We do not concur in *132this opinion. On the first trial the accused voluntarily withdrew his plea of not guilty. In other words, his case was withdrawn from the consideration of the jury by his request, and not by any action of the court. There is no principle of the law of former jeopardy which would permit an accused to set up his own voluntary act in withdrawing his case from the consideration of the jury and pleading guilty, and subsequently withdrawing the latter plea and again pleading not guilty, as a bar to a second trial. The withdrawal of the case from the jury incompliance with the request of the accused was equivalent to the declaration of a mistrial by consent, and ,a second trial' resulting from this voluntary conduct of the accused would be equivalent in legal effect to a new trial granted at his own request. Under the construction which this court placed upon section 971 of the Penal Code in the Griffin case, supra, the majority of this court is clearly of the opinion that the accused had the right, since the sentence of the court had not been pronounced against him, to withdraw his plea of guilty and enter a plea of not guilty. Judgment reversed.