¶1 (after stating the facts). The above is the only exception appearing in the record. In our view of the law, it must be sustained upon the principle laid down by this Court in Perry v. Railroad, 128 N. C., 471. In this case, as in that, the Solicitor stated a fact which there was no evidence tending to prove, and which in its very nature would tend to prejudice the defendant. It is true the Solicitor disclaimed any intention of charging the defendant with the murder of Gayton, but he immediately repeated the injurious assertion that “Cayton’s murder was caused by this moonshine business, and it should be broken up.” It is well known that the term “moonshine business” refers to the unlawful manufacture or sale of spirituous liquors. Like the common law offence of “owling” applied to the unlawful exportation of wool, it derives its name from the fact that it is carried on principally at night, or at least in secret.
¶2 This was the offence for which the defendant was being-tried, and the jury might have believed that the appeal to them by the Solicitor to break up the business, was a plea for the conviction of the defendant, who stood charged with a crime that had led to one murder and might lead to others.
¶3 The motive of the Solicitor in making the statement is not as important as its probable effect upon the jury. The best of motives sometimes lead to the most dangerous results; and if in the calmer deliberation of an appellate tribunal we see that the defendant may have been prejudiced by tibe inadvertent act- of Court or counsel, and thus deprived of that im *704 partial trial that is guaranteed to him by the law of the land, it is our duty to grant him a new trial.
¶4 The State lays great stress upon tiróse cases which say that much must be left to the discretion of the Judge below as to when and how he will correct the error, either by stopping the. counsel or cautioning the jury; but, in the case at bar, the Court did. neither.
¶5 It is urged that the jury were too intelligent to be prejudiced by any such remark. This may be true, and yet it does not affect the spirit of the law which seeks by well-established rules to prevent the possibility of prejudice. An opposite course would do away with the entire law of evidence and permit the introduction of all testimony of every kind and description, competent or incompetent, relevant or irrelevant, that either side may see fit to offer. In all such cases, the intelligence of the jury must be guided by the wisdom and experience of the law.
¶6 In conclusion, we may repeat what was said in Perry v. Railroad, supra: “If that were all, we would hesitate to interfere; but counsel went far beyond any testimony in the case, and, over the objection of the defendant, related facts within his personal knowledge, not of common information, and which were not in evidence. These facts were essentially damaging in their nature, and coming from so high a source, were capable of producing the most dangerous prejudice. That the counsel intended no impropriety, which we cheerfully admit, does not alter the case. The fact remains that such statements, coming from one of Iris high character and exalted position in his profession, became only the more dangerous when addressed to jurors whose confidence he justly possessed. Such statements were not in evidence and were not properly admissible in the argument of counsel. For tire failure of his Honor to interfere, at the request of opposing counsel, a new trial must be ordered.”
¶7 New Trial.