¶1dissenting. It is my opinion that the trial court erred in overruling the second special ground of the amended motion for a new trial. Code § 27-1404 provides in part as follows: “The prisoner may withdraw his plea of ‘guilty’ and plead ‘not guilty’, and such former plea shall not be given in evidence against him on his trial.” Notwithstanding this provision of the law the solicitor-general offered in evidence the plea of “guilty” which had been withdrawn by the. defendant and for which the plea of “not guilty” had been substituted. In Johnson v. State, 36 Ga. App. 127 (135 S. E. 492), it is held as follows: “Refusal to declare a mistrial was error where the prosecuting attorney asked a witness whether the defendant, who was then on trial for a violation of the prohibition law, had ever before been convicted of a violation of that law, and the witness answered that the defendant had twice been convicted of violating that law, and where the court, without reprimanding the attorney, excluded the question and answer and instructed the jury not to consider them, as the defendant had not put his character in issue.” See also Richardson v. State, 41 Ga. App. 226 (152 S. E. 599). Harrison v. State, 60 Ga. App. 610 (4 S. E. 2d, 602), Haynes v. State, 80 Ga. App. 99 (55 S. E. 2d, 646) and Flournoy v. State, 82 Ga. App. 518 (61 S. E. 2d, 556) do not apply here because the witnesses there volunteered improper testimony which was not elicited by a question of counsel and *476the court ruled out the testimony and otherwise applied corrective measures. Here the court did no more than was done in Johnson v. State, supra. The evidence was tendered by the solicitor-general in direct violation of a provision of the Code and the court merely ruled it out and instructed the jury to disregard it.
¶2The failure of counsel for the defendant to request that the plea of guilty which appeared on the indictment that went out with the jury be concealed waived nothing. It would be folly to paste something over it and thereby conceal it from the jury after the jury had already been told all about it. The jury'did not learn of this plea from the indictment which they had out with them. They found out about it when the solicitor-general introduced it in evidence, and had as full and complete knowledge of it before it appeared to them on the indictment in the jury room as afterward.
¶3In Flournoy v. State, supra, this court held as follows: “Courts of justice have the highest duty imposed upon them to safeguard the rights of defendants, and where . . a prosecuting attorney knowingly injects into the case by his questions an illegal element to the prejudice of the defendant, a mistrial is often the only complete and satisfactory remedy.” It is the opinion of the writer that no harm, can be done a defendant greater than that of calling to the attention of the jury the fact that he has previously pleaded guilty to the same charge for which he is on trial under a subsequent plea of “not guilty”. For this reason no doubt, our lawmakers placed in the Code section the provision that “such former plea shall not be given in evidence against him on’ his trial.” There are some prejudicial errors that can be corrected by instructions and rebukes on the part of the trial court. There are others that such measures only tend to accentuate. It is the opinion of the writer that an error such as the one here involved belongs to the latter class and that only a mistrial could serve to correct it.
¶4The error here cannot be said to be harmless on the theory that the evidence demanded a verdict. A verdict is never demanded in a criminal case if the jury by believing the defendant’s statement in preference to the sworn testimony would be authorized to acquit. Under the defendant’s statement in this case the jury *477would be authorized to find that the defendant at the time he gave the testimony in question was not of sound mind, and that he gave his testimony under duress.
¶5I am authorized to say that Felton, J., joins me in this dissent.