¶1dissenting. My disagreement with my brethren deals with the impact of the incident dealt with in the third division. I suggest that the inadvertent use of the words "at this time” in reply to the direct query from the foreman concerning the possibility of the accused having a previous criminal record was error in the context in which it occurred. Apparently the jury was *340unable to agree and therefore requested a re-charge on "reasonable doubt” and "recent possession of stolen goods” as well as "whether or not the jury could have made available to it any past record of the defendant regarding any previous offense of this nature.” The interest of the jurors in this specific phase was such that after the judge had recharged on the matters covered in Divisions 1 and 2 of the majority opinion but made no mention of this third item the matter of any past record was further pressed by the foreman by another direct query. Whereas the recharge as to the legal matters was couched in legal language which some jurors might consider as "gobbledygook” and have difficulty in comprehension, there could be no similar lack of understanding in the plain words of the judge’s answer: "I cannot address you with regard to this in any way at ths time. ” (Emphasis supplied.)
¶2Undoubtedly the trial judge had in mind our recently instituted bifurcated procedure whereby a defendant’s guilt or innocence is first determined separately from the sentencing portion which follows a guilty verdict. Code Ann. § 27-2534. But how were the laymen composing the jury to know that this procedure was the reason for the words "at this time” being used? The unwitting inclusion of these three words possibly inferred to the minds of the laymen jurors that defendant did have a prior conviction and that this would be made known to the jury at another time if defendant were found guilty.
¶3It is, of course, an accepted legal principle that the state may not, excepting in special circumstances, make reference to prior offenses or place the character of the accused in evidence. Code § 38-202.
¶4Among other reasons for this rule is the necessity of making certain that the accused receives a fair trial as to the particular offense uninfluenced by extraneous or irrelevant factors.
¶5If the State introduces evidence of the bad character of the accused before he puts his character in issue, a mistrial must be granted on motion by the defendant. Hooks v. State, 101 Ga. App. 351 (114 SE2d 48); 11 Encyc. Ga. L. § 31, p. 287. Recognition of the possible prejudice which is created by mention of other offenses is such that in Sharpe v. State, 91 Ga. App. 147 (85 SE2d 95) this court held that the inadvertent statement by a witness could not be eradicated by an explanatory instruction from the court so that a mistrial was required. See also Smith v. State, 118 Ga. App. 464 (164 SE2d 238). When a trial judge, even though unintentionally, uses the words as here which might be interpreted by laymen as *341reference to other crimes, there is an even greater possibility of the accused being deprived of his right to a fair trial. This is due to the status of the trial judge who is considered to be an impartial overseer of justice. Thus in Phillips v. State, 18 Ga. App. 109 (2) (88 SE 905) our court said: "The remark of the court was especially prejudicial not only because it tended to put in issue the character of the defendant, but also because it supplied a fact which had not been shown even by the testimony of the prosecutor.”
¶6Of course, all American courts, both trial and appellate, should make certain that every accused obtains a fair trial. " 'The term "fair trial” is often used, but not often defined. It is of broad scope. While we shall not undertake to give a formal definition of the term, yet it may not be amiss to mention, in part at least, its content... It means a trial before an impartial judge, an impartial jury, and in an atmosphere of judicial calm . . . Being impartial means being indifferent as between the parties ... It means that, while the judge may and should direct and control the proceedings, and may exercise his right to comment on the evidence, yet he may not extend his activities so far as to become in effect either an assisting prosecutor or a thirteenth juror.’ ” Goldstein v. United States (C. C. C. Mo.) 63 F2d 609, 613 quoting from Sunderland v. United States, 19 F2d 202, 216.
¶7We realize the trial judge here was impartial and did not intend to influence the jury to render a guilty verdict or deprive the accused of any of his rights, particularly his right to fair trial before an unprejudiced jury. Nevertheless, as was said in Nixon v. State, 14 Ga. App. 261, 263 (80 SE 513): "We have no doubt that the learned trial judge inadvertently used the language complained of, but we can not hold that it was harmless; we have no way of telling how much influence it may have had on the jury in arriving at their verdict.” See also Moyers v. State, 58 Ga. App. 237, 240 (198 SE 283).
¶8We have no means of determining what weight the twelve laymen placed on these three words, but we must recognize that all American courts, both nisi prius and appellate, have an overriding concern to insure that the accused receives a fair trial. This solicitude "exacts absolute impartiality on the part of the judge as to both his conduct and remarks. A judge must not do or say anything that can be construed by the jury to the prejudice of the accused.” State v. Hudson, 358 Mo. 424, 425 (215 SW2d 441). We suggest that this seemingly innocent phrase "at this time” unfairly tilted the scales of justice despite being a correct statement of law *342and the defendant should have a new trial with these scales in balance.
¶9I am authorized to state that Judges Quillian and Evans concur in these views and join me in this dissent.