52548 | Ga. Ct. App. | Sep 28, 1976
Appellant seeks a reversal of a conviction for the offense of driving under the influence of intoxicants upon the ground that the trial court erred in charging the provisions of Code § 38-119. Appellant is correct.
"The provision of Code § 38-119 to the effect that where the party has evidence in his power and within his reach by which he may repel a claim or charge against him, and omits to produce it, there is a presumption that such charge is well founded, is not applicable in the trial of a criminal case.” Bond v. State, 68 Ga. App. 15" date_filed="1942-09-18" court="Ga. Ct. App." case_name="Bond v. State">68 Ga. App. 15 (2) (21 SE2d 866). In accord are Mills v. State, 133 Ga. 155" date_filed="1909-08-11" court="Ga." case_name="Mills v. State">133 Ga. 155 (5) 65 SE 368) and Jones v. State, 14 Ga. App. 811" date_filed="1914-07-21" court="Ga. Ct. App." case_name="Jones v. State">14 Ga. App. 811 (82 SE 470).
Appellant’s failure to except below to this charge did not constitute a waiver. Sims v. State, 234 Ga. 177" date_filed="1975-04-17" court="Ga." case_name="Sims v. State">234 Ga. 177 (2) (214 SE2d 902). See also Spear v. State, 230 Ga. 74 (1) (195 SE2d 397).
Judgment reversed.