¶1On Motion for Rehearing.
¶2The contention is made that the ruling in Gibbs v. State, 112 Ga. App. 272, supra, holding that an instruction to the jury in the same language as that here complained of is in conflict with the decision in Ash v. State, 109 Ga. App. 177 (135 SE2d 507). An examination of the instruction to the defendant in Ash v. State shows that he was instructed that he was not required to answer any questions on cross examination, while in the Gibbscase and in the case sub judice the instruction was that he could not be compelled to answer any question should he think proper to decline to do so. The appellate courts have uniformly held, as exemplified by the decision of the Supreme Court in Roberts v. State, 189 Ga. 36, 41 (5 SE2d 340), that no cross examination may take place unless the prisoner first consents thereto. Thus the reason for the holding in Gibbs v. State, 112 Ga. App. 272, supra, for unless the prisoner first *440consents, the instructions, either to the prisoner or to the jury would be superfluous and inapplicable under the facts of the given case and, as to such case, wrong as an abstract principle of law.
¶3In the one case the prisoner is instructed that he is not subject to cross examination in that he is not required to answer any question while in the other he is placed in the position of being subjected to cross examination merely by making his statement and given the burden of deciding which questions he should answer and which he should decline to answer on cross examination, but answer some he must.
¶4Hall, Judge, concurring specially. I reluctantly concur in the judgment of reversal. The distinction between Ashand Gibbs, supra, as set out in the majority opinion is razor-thin. It is true that our highest court has said that the better practice is to omit from the general charge any reference to the rule that an accused making an unsworn statement is not subject to cross examination without his consent. Cargile v. State, 137 Ga. 775 (2) (74 SE 621); Thurmond v. State, 198 Ga. 410 (31 SE2d 804). It may well be that a jury could be as easily confused by this statement when they hear it given to the accused to inform him of his rights as when it is given to the jury in a general charge.
¶5At the time of this trial, it was not necessary in criminal cases to object to harmful charges to the jury to perfect an appeal. Moore v. McAfee, 151 Ga. 270, 275 (106 SE 274).
¶6By a 1966 Act of the General Assembly, it is now required that a party object to the giving of an instruction to the jury, before the jury returns its verdict, “stating distinctly the matter to which he objects and the grounds of his objection.” Ga. L. 1966, p. 493. And it is necessary to object during the trial to harmful statements or conduct of the court and counsel. “A party cannot remain quiescent until after the verdict and then avail himself of the remarks made by the court . . . where the verdict is adverse.” Moore v. McAfee, 151 Ga. 270, 275, supra; Pulliam v. State, 196 Ga. 782, 783 (28 SE2d 139) (overruling Potter v. State, 117 Ga. 693 (45 SE 37)); and Allen v. State, 194 Ga. 178 (21 SE2d 73); Flanigan v. Reville, 107 Ga. *441App. 382, 383 (130 SE2d 258); Atlantic C. L. R. Co. v. Smith, 107 Ga. App. 384, 386 (130 SE2d 355). The policy clearly expressed by our legislature and our appellate courts is that, in the interest of effective and efficient administration of justice, counsel have a duty to take action to call to the court’s attention incidents during the trial that may cause unfair prejudice to their clients, and the trial court has the duty, when such an incident has occurred or is likely to occur, to act to prevent the prejudicial incident or effect. I shall adhere to this policy in future judgments in which I participate.