This case was originally assigned to Judge Cates.
In the opinion prepared by Judge Catesthere is a statement of the facts which-sets out various incidents and remarks of the District Attorney during the course of the trial, the cumulative effect of which,, in his opinion, created such an ineradicable atmosphere of prejudice and bias against the appellant as to deprive him of a fair and impartial trial.
*512The District Attorney’s remark as to appellant’s former “affluence” was no concern to the jury and was, therefore, improper. However, I am not convinced after reading the record that the remark as worded was so improper and prejudicial to the appellant that any harmful effect resulting therefrom was not cured by the admonition and instructions of the trial judge.
I note that the objection of the defense counsel was sustained and that the trial court instructed the jury to disregard the remark. Chapman v. State, 43 Ala.App. 689, 199 So.2d 861; Troup v. State, 32 Ala. App. 309, 26 So.2d 611.
In such situations the trial judge, who sits in the arena of action, is in a much better position to determine whether a remark such as the one made by the District Attorney was so prejudicial as to be ineradicable through instructions by the court.
There are several instances of improper questions and statements contained within the record. However, in considering them, I do not find that their cumulative effect created an ineradicable atmosphere of prejudice and bias toward the appellant. In each instance, the court made a proper ruling and, where necessary, it seems to have impressively admonished the jury to disregard those statements which were regarded as improper. Troup, supra.
The remarks set out in Blue v. State, 246 Ala. 73, 19 So.2d 11, which resulted in damage to appellant, in my opinion, are far more numerous and severe in their cumulative effect than those in the case at bar. Among these are the remarks of the prosecuting attorney made in a spirit of zeal in the discharge of his official duties criticizing the appellant’s son for testifying as a witness for his father. These remarks were within themselves so improper as to border on creating grounds for a mistrial.
A judicial trial is a product of human efforts and achievements and is, therefore, subject to the frailties and imperfections that “flesh is heir to”. It is axiomatically true that it cannot always be free of all error. For this reason, the law yearns for, but does not expect nor require, perfection. However, the law is strict in its demand that the trial judge cause the proceedings to be so conducted as to not transgress the defendant’s right to a fair trial. I am of the opinion that in the case at bar, the action of the trial court should not be disturbed.
The judgment in this cause is due to be and the same is hereby
Affirmed.
PRICE, P. J., concurs in the judgment of affirmance only. CATES, J., dissents.