The argument of the solicitor to the jury Avas improper, and should haAre been excluded on the motion of the defendant. It stated the existence of two substantive facts, unsupported by any1' evidence in the cause, Avhich facts bore on a material inquiry, the tendencies of Avhich Avere, to influence their finding against the defendant. These tAA:o facts were, that “it has come to such a pass in LaAvrence county, that you cannot have a public gathering without whisky being sold there,” and “they sell it at your churches.” There was no semblance of evidence to support these statements, and according tó our uniform rulings on the sub-*82ject, they should have been excluded. — Cross v. State, 68 Ala. 484; Childress v. State, 86 Ala. 86, 5 South. 775.
The fact that the court, in its general charge to the jury, told them that they “must decide the case upon the evidence as detailed by the witnesses on the stand, and that the argument of counsel was intended to elucidate or explain the testimony in the case, and that the jury should not be governed by it any further than to explain the evidence in the case,” did not cure the error, of a refusal to exclude the statement of the existence of these assumed facts. For the purpose of elucidation and explanation, the solicitor had no right to assume the existence of facts, which had no existence, so far as appeared, in the evidence. There was abundant room to explain and elucidate, without resort to such unfounded and prejudicial statements.
There was no error in giving charge for the state, numbered 2. — Miller v. State, 107 Ala. 42, 19 South. 37; Wilkins v. State, 98 Ala. 5, 8 (charges 9 and 10), 13 South. 312; Norris v. State, 87 Ala. 88, 6 South. 371.
A charge which instructs the jury, that before they can convict the defendant, they must believe him guilty beyond a moral certainty, is erroneous.- — Roberson v. State, 99 Ala. 192, 13 South. 532. But it is error to refuse a charge, that the jury must be satisfied from the evidence beyond all reasonable doubt and to a moral certainty, of the guilty of the defendant, before they can convict him. — Williams v. State, 52 Ala. 411; Gilmore v. State, 99 Ala. 155, 13 South. 536; Roberson’s Case, supra.
The affirmative charge requested by the defendant was properly refused. — Mitchell v. State, 141 Ala. 90, 37 South. 407.
Reversed and remanded.
Tyson, C. J., and Anderson and Denson, JJ.., concur.