*504UPON REHEARING.
ANDERSON, C. J.(7) In reversing this case because of so much of the oral charge, which practically eliminated count 1 from the case, the fact was not suggested in brief, and was not noticed by the court, that the record does not affirmatively disclose that the exception to the said oral charge was taken in open court, in the presence of the jury and before the jury retired. Therefore the action of the court in this respect cannot be considered.—Carter v. Tenn. Co., 180 Ala. 367, 61 South. 65, and cases there cited. The rehearing is granted, the judgment of reversal set aside, and the case is affirmed.
Mayfield, Somerville, and Thomas, JJ., concur.