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 (2) (21 SE2d 866). In accord are Mills v. State, 133 Ga. 155 (5) 65 SE 368) and 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 (2) (214 SE2d 902)
. See also Spear v. State, 230 Ga. 74 (1) (195 SE2d 397)
Elkins & Flournoy, James A. Elkins, Jr., Paul R. Gemmette, for appellant.