That part of the general charge, to which an exception was reserved, should not have been given. It is abstract, in a sense, and misleading, in that it assumes as a fact that the defendant Hall had no legitimate business at the house of the defendant Skipper, when the evidence on this point was wholly negative in its character, and did not exclude a contrary inference. The charge, moreover, was upon the effect of this negative testimony, and directed the jury to consider the fact of Hall’s having no legitimate business at Skipper’s House, as tending to show adulterous intercourse, when, in view of the character of the testimony on that point, they might have inferred the non-existence of the fact itself. The right to draw this inference was in substance denied to the jury, and for this error the judgment must be reversed. — Burney v. State, 87 Ala. 80. The charge, in other words, assumes a fact as proved, when the evidence only tends to establish it, and is an invasion of the province of the jury. — Jones v. Fort, 36 Ala. 444.
The charge given at the instance of the solicitor, appears to be in the language of an instruction held to be proper in the case of Bodiford v. State, 86 Ala. 67. We are all now inclined to the opinion, that it is not a correct exposition of the law; but, as the present case must be reversed on the *239other point adverted to, we deem it unnecessary to decide this question.
The judgment of the Circuit Court is reversed, and the cause remanded.