The court erred in refusing to give the first charge requested by the defendant, which was, that “unless the evidence against the prisoner should be such as to exclude to a moral certainty every hypothesis but that of his guilt of the offense imputed to him, they must find the defendant not guilty.”
A failure to give this precise charge was held reversible error in Mose v. The State, 36 Ala. 212, decided as far back as 1860; and this ruling was approved in Coleman v. State, 59 Ala. 52. In the former case, it was said: “Unless the jury are morally certain of the defendant’s guilt, it can not be said that they have no reasonable doubt of his guilt. The proposition, therefore, that the jury must be convinced to a moral certainty of the defendant’s guilt, is substantially the same with the proposition, that they must be convinced beyond a reasonable doubt.”
The case of Blackburn v. State, 86 Ala. 595, is distinguishable from the case above cited. On the authority of these cases, we reverse the judgment in the present case.
The second charge was properly refused, as being merely argumentative. — Hussey v. The State, 86 Ala. 34; Snider v. Burks, 84 Ala. 53.
The remaining question, arising on the action of the court in sustaining the challenge of the State to the juror Dreaden, will not arise on another trial, in all probability, and need not be considered.
The judgment is reversed, and the cause remanded for a new trial. The defendant, in the meanwhile, will be retained in custody until discharged by due course of law.