delivered the opinion of the court.
On the trial below, evidence of an assault with an open knife by the prisoner upon the deceased, about one year before the homicide for which he stands convicted, was admitted over the prisoner’s objection, and this action of the trial court is assigned for error.
The general rule is that on the trial of one charged with a particular crime, the evidence must be confined to the issue joined as to that specific offense, and that usually evidence showing, or tending to show, the accused’s guilt of another offense, at some prior time, is incompetent. This rule is founded in reason, for to allow the introduction of evidence of other and distinct offenses, would confuse and mislead the jury as to the real issue to be determined, would prejudice the prisoner by irrelevant matter, and would require him to meet charges foreign to the specific offense laid to his charge. This rule, however, is not without exceptions, and one of the excepted classes is where the evidence of a former, distinct offense is offered to show intent or motive in the commission of the crime charged. It is useless to refer to other excepted classes from the general rule, for, manifestly, this evidence of a former assault by the prisoner upon the deceased was offered to show motive for the murder alleged to have been committed. That the evidence of the former assault was incompetent, and governed by the rule and not the exception, seems clear to us. The former assault was, in point of time, too remote, it hav*346ing been committed nearly twelve months before the murder charged in the indictment; and, besides this, the evidence satisfactorily and nndisputedly shows that after the former assault, and before the date of the murder charged, the mental attitude of the prisoner towards the deceased had undergone a complete revolution. The prisoner, until the very evening before the murder is charged to have been committed, had been a frequent visitor of the deceased, and for some time before that event had regularly visited the deceased at her home about twice each week. He was there the day before as a visitor, and he is shown to have had an engagement to return to her home on the very evening on which the deceased was last. seen alive. - All this is wholly inconsistent with a malicious motive and murderous purpose entertained by the prisoner all along during the period intervening between the former assault and the alleged murder, and up to the date of the murder as charged.
Not being admissible, therefore, for the purpose of showing motive or intent, and not being any part of one transaction culminating in the supposed homicide, but a separate and distinct offense committed long before, the action of the court in declining to exclude this evidence of the former offense is such error as requires a reversal of the judgment. This incompetent evidence not only may have seriously prejudiced the accused, but such must have been its inevitable effect.
The introduction of a knife found near the sp'ot where the body of the unhappy dead woman was discovered was improper. There was nothing which was offered in evidence that even tended in any degree to identify the knife so found as that of the prisoner, and there was nothing in the appearance of the knife itself, when found, that indicated that it had been used in putting to death the poor woman. Besides, the knife was only found about a month after the body of the deceased had been first seen after her death. While this was error, we do not desire to be understood as holding that this alone and of itself would require a reversal, in the absence of any other error.
*347The third instruction for the state was bad in -so far as it informed the jury that “ the burden of proof is [then] shifted to the defendant; ” that is, the burden of proof was shifted to the defendant after a killing had been proved to the satisfaction of the jury beyond every reasonable doubt, the legal presumption of malice being raised by the unexplained killing. The burden of proof in such cases never shifts, as this court has before held, and the charge was erroneous to the extent indicated; but this inaccuracy of technical statement might or might not constitute reversible error. Whether reversible error or not would be dependent upon the character of the case and its peculiar circumstances. If clear that injury might have come to the accused by reason of the error, a reversal would follow, but otherwise not. Let this error be avoided on a future trial, if unnecessary controversy is to be avoided.
It is said, moreover, by counsel for the prisoner that this third instruction for the state is vicious, because it goes further than to declare the burden shifts to the defendant and puts upon him the duty of showing circumstances of alleviation, justification or excuse by his evidence, instead of instructing the jury that no conviction could be had if, from the whole evidence, there was reasonable doubt of guilt. We agree with counsel, as was declared by this court in Hawthorn’s case (58 Miss.), that “the true rule is that the accused should be convicted if, from the whole evidence, there is not reasonable doubt of his guilt;” but we do not agree with counsel in his construction of the language employed in this third charge. The evidence adduced must mean, we think, all the evidence in the case. It is to be observed that this charge was not dealing with the question of reasonable doubt. The jury was elsewhere fully instructed as to the reasonable doubt.
But it is further said that the charge assumes the fact of killing in this case, and that, as this fact was in controversy, the charge was erroneous in making this assumption. We do not so understand the charge. It is an abs'.ract statement of *348two or more legal propositions and not a charge upon the facts of this particular case.
The sixth instruction for the state is also thought by counsel to be erroneous, in not informing the jury that a reasonable doubt might arise out of the want of evidence as well as out of all the testimony in the case. That a reasonable doubt may arise, in certain cases, from a want of evidence, as well as out of the evidence actually produced, is undeniable; and that the trial judge who heard this case below would have so instructed the jury (the case being one of circumstantial evidence purely) if lie had been requested to do so, we have no doubt. The charge given is the stereotyped one on this subject, and is the law; but in certain classes of cases, especially those where the principal fact is in dispute or doubt, and a conviction is sought on circumstantial evidence only, it may well be said that a reasonable doubt may arise from a want of testimony, and, in such case, the person wishing the additional charge should, ordinarily, ask it. If he should not, however, in a proper case, and the stereotyped charge only is given, we might feel constrained to reverse for the error, as we did in the case of Knight v. State, 74 Miss., 140.
We do not think there was error committed by the court below in refusing the defendant’s first instruction. We do not understand exactly what the charge does mean. If it means that every circumstance detailed by each and every witness must exclusively apply to the defendant, then it was erroneous because that was impossible, and would only have confused the mind of the jury. If it means that the circumstances must conclusively point to the defendant as the guilty man, then we say that the character and effect of the circumstantial evidence had been fully explained to the jury in other charges. If it means that the proven circumstances must exclude any other hypothesis than that of defendant’s guilt, then we say the jury was elsewhere fairly and fully instructed on that subject. And so we see no error in refusing the charge.
*349Admonishing the state’s counsel to avoid the possible errors in the charges referred to by ns, we reverse the case for the erroneous rulings of the court in admitting incompetent and prejudicial evidence of the former assault, committed twelve months before the murder is charged to have been committed.
Reversed and remanded.