Rippy v. State

ON MOTION FOB. REHEARING.

HAWKINS, Judge.

The state has filed a motion for rehearing insisting that the judgment should not have been reversed because of the absence of the witness Drake. There can be no question as to the materiality of his evidence. It is not for us nor the trial judge to determine its probable truth. This is precluded by the affidavit of the witness attached to the motion for new trial. White v. State, 90 Tex. Cr. R. 584, 236 S. W. 745 and cases therein cited; also Mangrum v. State, 105 Tex. Cr. R. 644, 290 S. W. 166; Tubb v. State, 5 S. W. (2d) 150; Kellar v. State, 11 S.…