¶1— The prisoner is indicted for the murder of his wife, by striking her with an axe. The evidence upon which the conviction was had was entirely circumstantial.
¶2In every criminal case, there can be no doubt of the proposition, that it is the duty of the State, in the first instance, to show beyond a reasonable doubt, and to the exclusion of every other reasonable hypothesis, every fact or circumstance which is necessary in order to establish the guilt of the defendant. Childs v. The State, 58 Ala. 349; Coleman v. The State, 59 Ala. 52; Mose v. The State, 36 Ala. 211; Murphy's case, 6 Ala. 845; Whart. Cr. Ev. § 1.
¶3And until this proof is made, especially in cases depending entirely upon evidence' of a circumstantial nature, it is clear that the burden is not shifted upon the defendant to establish his innocence, either by introducing exculpatory evidence in his own behalf, explanatory of the criminative evidence .of the prosecution, or by setting up any other defense incompatible with the theory of his guilt. The State, in other words, must make out its own case, before the defendant can properly be called on to answer with his defense.
¶4The first charge requested by the defendant, and refused by the court below, was but an embodiment of the above principles, and should have been given.
¶5The second charge was properly refused by the court. The evidence showed that, about eighteen months before the killing, there had been a separation -between the deíéndant and his wife, and he had declared, among other things, that “ he did not lilce her,” and “ would not-live with her"’ — expressions from which the jury were authorized to infer express malice on his part towards her. They resumed their marital relations a short time before tire killing, and were living together at that time. There is no proof of the extent, or hona fides of the alleged reconciliation. '■ These facts, it is true, were relevant as tending to prove a friendly pacification, entirely oblivious of past vindictiveness. But the jury were not compelled to believe that such was the case. The law did not forbid them to conclude that the embers of an ill-will may have still smouldered beneath the ashes of a pretended reconciliation, thus firing the *369heart of the defendant in the execution of* the crime with which he is charged. — Rex v. Goodere, 17 State Trials, 1020 ; The People v. Kesler, 3 Wheeler’s Crim. Cases, 18, 65.
¶6The third charge is infected with the same vice as a similar one 'which was condemned as misleading, and liable to embarrass the jury,.in the case of Tompkins v. The State, 32 Ala. 569. It was also properly refused. — Burrill on Cir. Ev. pp. 122, 179, 602. .
¶7The judgment of the circuit court is reversed, and the cause remanded for a new trial, because of the refusal of the court to give the first charge recpiested by the defendant.