CLARK, Judge.
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 S.E.2d 866). In accord are Mills v. State, 133 Ga. 155 (5) 65 S.E. 368) and Jones v. State, 14 Ga. App. 811 ( 82 S.E. 470).
Appellant's failure to except below to this charge did not constitute a waiver. Sims v. State, 234 Ga. 177 (2) ( 214 S.E.2d 902). See also Spear v. State, 230 Ga. 74 (1) ( 195 S.E.2d 397).
Judgment reversed. Bell, C. J., and Stolz, J., concur.
CLARK, Judge.
SUBMITTED SEPTEMBER 20, 1976 — DECIDED SEPTEMBER 28, 1976.