¶1dissenting.
¶2Defendant Jessie Finch was convicted on two counts of misdemeanor in the Clarke County State Court, and sentenced to serve 12 months, and on probation with payment of a fine of $1,000. He appealed to this court.
¶3This case started off in a most unusual fashion. Being a state court, no grand jury was in session, but all of the jurors were traverse jurors. Before any case was tried, the trial judge left the bench, and walked down in the courtroom in front of the jurors and addressed them. His remarks were not recorded, because defendant had no prior notice of the necessity therefor nor that any such unusual maneuver would be practiced. But many of the things said in the speech have been reconstructed by questioning the .jurors and by admissions of the judge himself and by his supplemental record of evidence and proceedings.
¶4The judge began by saying he was speaking as a private citizen and not as a judge (albeit he was in his own courtroom, and the jurors were subject to his orders of remaining in the courtroom or leaving and to such other legal orders he might issue). He did not dismiss any juror. He was being paid as a judge for all of the time that he was addressing the jury, and when he resumed the bench he took up again as judge. It is somewhat difficult to follow *677his reasoning in saying that he was speaking as "a private citizen.”
¶5While his speech must have had many, many facets, at least a large part of it revolved around courts and trials of defendants in criminal cases, although not all of it was on that subject. It was a little like "Alice in Wonderland” where "The time has come” the walrus said, "To speak of many things; Of cabbages and carpenters, And whether pigs have wings.”
¶6But part of his language was not of cabbages or carpenters; a part of same, admitted by the judge to have been spoken to the jurors, amounted to a direct appeal to the jurors to convict defendants "on this level” (meaning in this court) or they could go on to become felons. We quote from pp. 4 and 5 of the motion for rehearing: "That criminal activity rose at the fastest rate and the largest numerical increase in history during the year 1974, and that reports received by the trial judge indicated that approximately two-thirds of those arrested were repeaters and about half of these repeaters had been arrested more than twice. That through experience it had been found that if a juvenile offender could be properly treated and supervised he or she would not tend to repeat their criminal activities; that otherwise, having found the first offenses to be easy, many later tended to commit misdemeanors; that if misdemeanor offenders could be apprehended and properly treated and supervised, they would tend not to go on to the more serious crimes and felonies; that unless an offender did not receive proper treatment and supervision as a juvenile or misdemeanant, or had escaped apprehension for these lesser crimes, the offender would often go on to commit felonies.”
¶7The trial judge was given a hearty round of applause by many of the jurors for his remarks at the conclusion thereof.
¶81. When defendant’s case was called for trial that afternoon his counsel first established by questioning the jurors and by admissions of the trial judge the foregoing facts respecting the judge’s speech and conduct, and then moved for a mistrial because he did not feel his client could receive a fair and impartial trial before the *678assembled jurors in the atmosphere that had been created, through the judge’s expression of his personal opinions to the jurors in the courtroom.
¶92. The statement by the judge that he was speaking as a private citizen, and not as a judge, is so ridiculous as to need no comment. He was the judge; he was in his own courtroom; he was just about to begin the trial of cases; he spoke to jurors who were being paid to attend as jurors. He himself was being paid to preside over that very court as judge. Thus, the judge, in effect, sought to make a grand jury out of the traverse jurors in the State Court of Clarke County.
¶103. There is no question but that the defendant had no chance whatever of receiving a fair and impartial trial after the demonstration by the trial judge. While his remarks may have been appropriate to a campaign speech for election to the office of judge, once the office has been secured, campaign speeches must be laid aside. They can be very, very offensive to justice and prohibitive of its rendition, as was true in the case at bar.
¶114. When the motion for mistrial was moved, same should have been granted, unless the judge, in his discretion, had dismissed the jury and called and empaneled an entirely new and different jury who had not heard his speech of the morning.
¶125. The majority opinion errs — grievously errs — in stating in Division 1, p. 670, in holding: "... the jurors all responded as being qualified as to freedom from prejudice and bias as between the state and the accused after thorough explanation and questions.” (Emphasis supplied.) Not a single juror made such response! No voir dire oath was ever administered to one single juror! The law provides for two oaths to jurors, one being provided for in Code § 59-706 (to render a true and impartial verdict) and the voir dire oath being provided for in Code Ann. § 59-705.1 repeat that the oath was never administered. And then the record shows clearly at p. 27 that no jurors actually responded to the question the trial judge put to them, that is, "if any of them were not fair and impartial, please stand, and no one stood.” That is a far cry from actually responding and making any positive statement one way or the other.
¶13*6796. Then the majority opinion at p. 671 states that "the jurors’ questions emphasized that the speech of the judge did not influence them as to this case.” But how many jurors were questioned and made this statement? And what was it expected the jurors would say (not under voir dire oath) with the judge sitting on the bench, and who had just moments before reiterated and republished his speech of the morning by saying he did not apologize for a single word of it. The Supreme Court of Georgia has held times without number that cautionary instructions by the trial court may erase improper questions or conduct, that is, where he instructs the jury not to be influenced by such improper remarks or improper conduct. See Ivy v. State, 220 Ga. 699 (3), 703 (141 SE2d 541); Johnson v. State, 150 Ga. 67 (1) (102 SE 439); Ehrlich v. Mills, 203 Ga. 600 (4) (48 SE2d 107); Kendrick v. Kendrick, 218 Ga. 460 (4) (128 SE2d 496); Purcell v. Hill, 220 Ga. 663, 664 (141 SE2d 152).
¶14But did the trial judge here instruct the jury not to be influenced by his remarks of the morning? Those remarks included: 1. Criminal activity rose at the fastest rate and the largest numerical increase in history during the year 1974. 2. Two-thirds of those arrested were repeaters. 3. Half of these repeaters had been arrested more than twice. 4. That if misdemeanor offenders could be apprehended and properly treated and supervised they could tend not to go on to the more serious crimes and felonies. 5. Unless an offender did not (sic) receive proper treatment and supervision as a juvenile or misdemeanant... the offender would often go on to commit felonies.
¶15No indeed! He told the jury during the trial of the Finch case that he was proud of his remarks; that he did not apologize for a single remark; that he stood by every one of them!
¶16Did he comply with the plain instructions of the Supreme Court as to how he might remove the error of his earlier statement? He did it in his own way, and he did it wrongfully and erroneously. In effect, he made the speech all over again!
¶177. The majority opinion contends the evidence against the defendant was overwhelming, and demanded a verdict of guilty and therefore no error made in the case *680could be reversible. But in such position the majority is so far off base that it could never get back before being thrown out. No criminal case in which a defendant pleads "not guilty” ever demands a verdict of guilty. The majority has cited quite ancient cases to support their position, to wit: Wheeler v. State, 42 Ga. 306; Braswell v. State, 42 Ga. 609; Johnson v. State, 14 Ga. 55. In placing its reliance on these cases, surely the majority has overlooked the recent case by the Supreme Court, by which case we are bound, to wit: Hall v. Hopper, written by Justice Hill, 234 Ga. 625, 631 (216 SE2d 839) holding that stability and stare decisis, and the oldest unreversed full-bench decision of the Supreme Court are no longer controlling. They ruled "stare decisis” is a basis of argument but "It is not possible, however, to achieve unanimity in every case which reaches this court. When a majority of this court determines that stability must give way to justice to the prisoner, then justice prevails. The 'full bench rule’ has been repealed.” (Emphasis supplied.)
¶18But if Hall v. Hopper is not enough, then we respectfully invite the attention of one and all to the recent case of Carter v. State, 204 Ga. 242, 246 (49 SE2d 492), where a defendant pleaded "not guilty” to murder on the indictment. Then he took the witness stand and admitted he was guilty and that he only wished to be given mercy (a life sentence). His attorney addressed the court and jury and stated that he, too, in view of his clients statement, wished to say that his client was guilty of murder and only wished to have a life sentence (mercy). The trial judge charged the jury to determine the punishment, as the defendant had admitted his guilt.
¶19Under the majority opinion and contention in the case at bar no reversible error could be committed in such an overwhelming case of guilt! But what said the Supreme Court? The defendant could successfully assign error on the court)s charge because the court should have charged the jury to decide whether the defendant was guilty or innocent (even in the face of his admission and his attorney’s admission that he was guilty) and they must fix the sentence only if he were found guilty. Surely the majority has given no consideration to this decision by the Supreme Court of Georgia, written by Justice Duckworth, *681concurred in by Justices Jenkins, Atkinson, Wyatt, Head, Groves and Hawkins. Justice Bell was ill and did not participate because of illness. Does this case control the point at issue here or does it not? Also, on this point, see Bird v. State, 89 Ga. App. 37 (78 SE2d 551), holding that even in the plainest of criminal cases the trial judge cannot direct a verdict of guilty, and if the trial judge cannot do so, of course, the Court of Appeals cannot do so.
¶208. Code § 81-1009 makes it the duty of the trial judge to rebuke counsel if he makes improper statements in the presence of the jury and by all needful and proper instructions to remove them from the jurors’ minds. We have already pointed out that the trial judge here repeated the harmful remarks rather than asking that they be not given consideration. See Ga. Power Co. v. Puckett, 181 Ga. 386 (182 SE 384); Ga. Northern R. Co. v. Hathcock, 93 Ga. App. 72 (3) (91 SE2d 145). And it was held in Hill v. State, 14 Ga. App. 410 (3) (81 SE 248) that it is even worse for the judge to make improper remarks than for the attorney to do so; the hurt is greater; it comes from a higher source. Of course, there are certain things that occur — and Finch’s case is such a case — where no curative remarks will relieve the hurt, and a mistrial must be granted. See Terry v. State, 73 Ga. App. 700, 701 (37 SE2d 823).
¶219. The point advanced by the specially concurring opinion of the three judges is that the motion for continuance was not properly made, or was not the proper motion. The motion was made exactly as it should have been, and it was the proper motion to have made. Perhaps a motion for mistrial would not have been in order as no trial had been had, but the motion made was to continue, not for the entire term, but until a qualified jury could be empaneled. See transcript at p. 22 which states: "Mr. Timmons: Your Honor, at this time I would like to either move for a mistrial as to Mr. Finch or I’d like to ask that his case be continued. I don’t feel that there’s any way that this Defendant can receive a fair trial at this term of Court with this panel of jurors.” (Emphasis supplied.) The authorities cited previously by the three specially concurring judges were premised on the idea and situation "where a voir dire oath had been administered.” We have repeatedly pointed out here that no voir dire oath *682of any kind was ever administered. They cited Fields v. State, 190 Ga. 642 (2) (10 SE2d 33); Hill v. State, 221 Ga. 65 (1, 2) (142 SE2d 909); Hagans v. State, 77 Ga. App. 513 (48 SE2d 700), all of which hold that they are conditioned on the premise that a "voir dire oath” has been administered. That is not the situation here.
¶22But several cases hold that the motion made was the exact one that should have been made, to wit, to move to postpone or continue until other panels of jurors could be drawn from which to select the jury in the case on trial. No challenge to the poll nor to the array is required. See Fievet v. Curl, 96 Ga. App. 535 (101 SE2d 181); Bowling v. Hathcock, 27 Ga. App. 67 (1) (107 SE 384); Colonial Pipeline Co. v. Westlake Club, Inc., 112 Ga. App. 412, 413 (1) (145 SE2d 669).
¶2310. The trial judge obviously allowed his feeling against defense counsel to enter into the decisions he was making. "Whom the gods would destroy, they first make mad.” We come to this conclusion because in the absence of the jury, defense counsel insisted to the court that the jurors were disqualified and that the improper speech by the judge made during the morning, and his reiteration and standing by his remarks in the afternoon, had disqualified .the jurors. The trial judge proceeded to raw-hide the lawyer, contending that as the jurors had not stood up when the judge asked them if they were biased or partial, that meant they had said they were fair and impartial (which is a non sequitur — they did not actually say anything but just remained seated) and the judge saw the lawyer was therefore "calling the jurors a bunch of liars” and that he had reflected on the intelligence, the integrity, and the honesty of the jurors and he hoped no one told the jury the lawyer had said that. These remarks were uncalled for and unworthy of the high office of judge of the State Court of Clarke County, Georgia. Surely the lawyer had the right to contend the jurors’ minds had been swayed and influenced, and he was not thereby calling them liars, or dishonest and men without integrity simply because he stood up for the rights of his client to receive a fair trial by fair and impartial jurors.
¶24And exactly what did the judge mean when he said "he hoped no one told the jurors defense counsel had said *683that.” Did he fear a lynching or exactly what was behind this rather sinister-sounding remark of the trial judge?
¶2511. One commendation I strongly make of the majority opinion is that they have clearly and strongly disapproved of the speech the trial judge made to the trial jurors during the morning. It was a "convicting” speech — one to be made by the solicitor — not by the trial judge and referee who was under oath to see that both the state and the defendant received justice and a fair trial. The applause of the assembled jurors was not unexpected; whenever a judge makes a convicting speech the jurors think he is great — but all lawyers know that his office does not allow him to make that speech. If the judge wishes to do so, perhaps he should run for solicitor and really get into the business of prosecuting. But he should not be allowed to nor applauded for prosecuting so long as he occupies the office of judge!