ON APPLICATION FOR REHEARING.
(5, 6) The appellant insists, upon this application, that it sufficiently appears from the recitals in the bill of exceptions in relation to the exceptions reserved to portions of the court’s oral charge by the defendant, that they were taken and reserved during the trial and before the jury retired. It is shown by the bill of exceptions that the exceptions to these excerpts of the oral charges were “duly” reserved, and that the court, after the exceptions were reserved, made certain changes in its oral charge to the jury-and continued to charge the jury on these and other propositions, and that the exceptions were duly reserved as the charge was being given; and necessarily before its conclusion. Whether the objections were made and exceptions properly taken before the jury retired must be determined from a reasonable construction of the bill of exceptions (Edgar v. State, 183 Ala. 36, 62 South. 800), and we think that, according to the record in this case such construction, it is made to affirmatively appear that the exceptions were properly reserved to require review of that question. The excerpt from the oral charge of the court to *133which an exception was reserved, which, as set out in the record, is in the following language: “I didn’t tell them that. I simply-told the jury you must be persuaded beyond reasonable doubt that these are the trousers that came out of Pittman’s box. And that if there is evidence here to satisfy you beyond a reasonable doubt this is true, it makes no difference who has testified or who has not testified in the case,” is clearly, we think, when taken in connection with the evidence introduced by the 'defendants in their behalf, an invasion of the province of the jury, and is a charge upon the effect of the testimony in violation of section 5362 of the Code of 1907. See authorities collated as a footnote to that section.
Judgment of affirmance heretofore entered is ordered set aside, and a judgment of reversal remanding the cause is entered for the error discussed.
Affirmance set aside; reversed and remanded.