ON APPLICATION POR REHEARING.
In the brief filed in support of the state’s application for a rehearing in this case, it is suggested that there was an inaccuracy in the statement in the opinion to the effect that the communication of the presiding judge *192with the jury after it had retired to- consider the verdict was had while the defendant was not present. Upon reexamining the part of the bill of exceptions, as set out in the transcript, which dealt with this incident, it was found that, as it was originally typewritten, it showed that the incident happened when the- defendant and his counsel were not in court, but that it had been changed with pen and ink so as to show that only the defendant’s counsel was absent at the time. Upon an inspection of the original bill of exceptions, it was found that it, too-, as it was originally typewritten, had been similarly changed. When the attention of the clerk of the trial court was called to the fact that this part of the bill of exceptions as it was originally transcribed in typewriting in making up the transcript for this court did not indicate that such changes had then been made in the original, he stated to the members of this court that the changes were made after the bill of exceptions had been signed, filed, and copied into- the transcript for this court. In consequence of the receipt of this information, a writ of certiorari was issued for “a full and complete copy of the bill of exceptions in this case as the same was when it was signed by the presiding judge and filed with the clerk, omitting changes or interlineations, if any, thereafter made.” The return to this writ sets out the bill of exceptions as it is found after the changes above mentioned were made. If the disposition of the case on this appeal were dependent upon, the verity of this return, the circumstances above mentioned would call for further action by the court to enable it to be assured that the bill of exceptions which has been certified to is the one which became a part of the record of this court when it was signed by the presiding judge and filed with the clerk of the court below, and not that instrument as subsequently changed by nn*193authorized alterations. — Ex parte Nelson, 62 Ala. 376. The instrument set out as the bill of exceptions in the return to the writ of certiorari does not show that the defendant was not present when the jury was communicated with after it had retired to consider the verdict; and the concluding words of the opinion formerly rendered are modified so as to read as follows:
“A trial court should refrain from having any communication with the jury in reference to a case on trial without affording to a party to it an opportunity to have his counsel present when this occurs.”
A reconsideration of the rulings heretofore made has not led the court to the conclusion that it fell into error in the disposition which was made of the case.
Application for rehearing overruled.