dissenting. I respectfully dissent from the judgment and Division 4 of the opinion. The motion for a mistrial referred to in Division 4 of the opinion is stated in the amended motion for new trial. The motion for a mistrial was directed to the following remarks by an assistant district attorney, to wit: “Now, you gentlemen are aware of it and it’s been sprayed at you all week. How would you verbalize it? I will tell you how to verbalize his defense. His defense is the defense of smoke screen. His defense is one of trying to throw up as much smoke as possible into your eyes, and before you to somehow keep you from seeing how the overwhelming evidence shows the defendant to be the murderer in this case, and pursuant to that objective, you have heard hour upon hour and I don’t use the term loosely, of cross examination. In the irrelevant, trivial details we have seen counsel time after time try to try his Honor, and if someone has a weak case, who hasn’t got any defense really and they can provoke the judge into making a statement that the appellate courts would consider to be error, then he can get a mistrial and make the People’s counsel and taxpayers pay for going through the process again, and the theory is the more times you can get a mistrial and put the State to the expense, with us having 8,500 other cases a year, and a hundred cases a week on the calendar, that ultimately this will work to the defendant’s benefit. I can’t go into details on that, but the more you can put it off, the better *772chance the defendant has got. And then another way of throwing up a smoke screen is to try to try the solicitor, try to get you to try me or Mr. Land.”
The attorney for the defendant in his motion for new trial stated: “I move for a mistrial in reference to his remarks that I tried to provoke the judge on the grounds that it prejudices the defendant, deprives him of a fair and impartial trial and the appellate courts have so held that such a remark is grounds for a mistrial.” Upon this statement by the defense counsel, the court stated: “I don’t remember that the solicitor made such a charge as to you, but if he did as to you personally, it would be objectionable.” The court overruled the motion for new trial without making any effort whatsoever to remove the damage done by the statements of the assistant district attorney.
The majority opinion treats this ground of the motion for new trial very narrowly, in my opinion, and I suppose that the majority’s construction of the reference to the “someone” who has a weak case and to “someone who hasn’t got any defense and they can provoke the judge into making a statement that the appellate courts would consider to be error” is that the references are not to the defendant’s attorney. Unless they are, they would be completely unrelated and irrelevant to this case, hence meaningless. I think that the assistant district attorney was referring to counsel for the defendant and prejudiced the case by endeavoring to convict the defendant’s attorney of trying to get a mistrial and by attempting to equate the defendant’s attorney’s behavior with evidence of guilt of the defendant.
I do not see how the majority can separate the narrow ground on which this motion was made from the uncalled for statement of facts, that the solicitor’s office has 3,500 cases a year and 100 cases per week on the calendar, which facts were not in evidence or in the record. There has already been one mistrial in this case and the jury knew about it from the cross examination and the effort made to impeach witnesses by the testimony on the first trial. I think that a fair treatment of this ground of the amended motion for new trial demands the conclusion that the assistant district attorney unquestionably made *773harmful, unwarranted and prejudicial remarks, which, in the absence of any corrective measures by the court (assuming that there could be some), demand a reversal of the judgment in this case, on the ground of the motion for a mistrial" discussed here.
The two cases cited by the majority are not definitive authority for that holding. Rather, they contain general law which could just as easily support my view, for example: “What the law forbids is the introduction into a case, by way of argument, of facts not in the record and calculated to prejudice the accused.” Taylor v. State, 121 Ga. 348, 354, supra; “The State . . . will in no case permit its representative to go outside of the evidence to find a basis for appealing to the sentiments, passions, or prejudices of the jury in order to obtain a conviction. . . [I]t is under no circumstances [the district attorney’s] duty either to go outside of the case and state facts not in evidence or to appeal to the passions or prejudices of the jury. . . In our opinion, therefore, the question in every case turns upon whether the nature of the argument is such that it is manifestly improper and prejudicial to the rights of the opposite party.” Loomis v. State, 78 Ga. App. 153, 183, supra, and cits.
“In some cases of misconduct by a solicitor the injurious effect may be averted by appropriate action and instructions from the court (Code § 81-1009); but what would be sufficient in any case would depend on the character of the misconduct, the nature of the case, and the action or instructions from the court relied on to counteract the injurious effect of the misconduct. These may differ in each case. It is not erroneous to refuse to grant a mistrial on account of misconduct of the solicitor if it is certain that no injury could have resulted therefrom to the accused. But if it can be reasonably inferred that the jury were thereby in any way unfavorably affected against the accused a mistrial should be ordered or a new trial granted. In the interest of fair trials it should clearly appear that there was no 'probability that injury to the accused would result from the misconduct.
“The matter of granting a mistrial is largely within the dis*774cretion of the trial court, but that discretion will be controlled when it is apparent that a mistrial was essential to preservation of the right of fair trial. Ordinarily, when illegal testimony is placed in evidence, it is not an abuse of discretion to refuse to grant a mistrial if sufficient corrective instructions are given in ruling the testimony out. . . Mistrial is more likely to be the solution required in those instances where the solicitor directly elicits the improper evidence than in those instances where the witness volunteers the testimony. . . Where, as here, a prosecuting attorney knowingly injects into evidence an illegal element to the prejudice of the defendant, a mistrial is often the only complete and satisfactory remedy.” (Emphasis supplied.) Brown v. State, 118 Ga. App. 617, 620 (165 SE2d 185) and cases cited.
The facts argued by the prosecutor were not only not in evidence, but would not have been admissible in evidence, since they had no possible bearing on the question of the defendant’s guilt and were injected solely for the purpose of avoiding another mistrial. See Southern Stages v. Brown, 76 Ga. App. 694 (46 SE2d 765). It was obvious to the jury that the assistant district attorney, as the prosecutor, wanted to avoid the mistrial by obtaining a conviction, rather than an acquittal.