The reliance of the prosecution for a conviction of this defendant of the murder of Dries-báck was circumstantial evidence, -including the proximity of the defendant to the scene of the tragedy during at least a part of the period within which the deceased was killed, and certain tracks leading to and away from that scene, and also the possible unfavorable inference to be drawn by the jury from false, if so found, accounts by the defendant of courses taken by him on the day the deceased lost his life. In reponse to this the defendant introduced testimony, in addition to his own denial, of guilt, tending to show that one Williams, at or about the time the supposed fatal gunshots were heard, was near the place where the body was later found. The evident purpose of this testimony was to rebut the state’s evidence of opportunity, from proximity, of the defendant to have committed the alleged crime, as well as bring to the consideration of the jury the fact, if so, that Williams was favorably situated to have fired the fatal shot or shots. In this state of the case, the court, in the presence of the jury, declared that he would charge the jury that there -was no evidence that Williams did the killing. This was an invasion of the prov*31ince of the jury, and was error, for which the judgment is reversed, and the cause is remanded.
Reversed and remanded.
Tyson, O. J., and Dowdell and Anderson, JJ., concur.