The judgment of reversal was predicated on a certificate of the trial judge found in bill of exception number two which complains of the denial of a continuance. The State's motion for rehearing urges that in connection with bill number two this court should — regardless of the certificate therein — consider bill of exception number seven, which brings forward affidavits of the two Benavides witnesses, *Page 135 which affidavits were before the trial judge at the time the motion for new trial was acted on. Waiving a discussion of the point raised by the State, we observe that even if said affidavits be considered we are still disturbed over the situation. The exact time of the killing seems not to be shown, save as it appears from appellant's repudiated confession in which the time appears as some time after 11:15 o'clock A. M. at a point two and a half miles from Cibolo. The affidavits in question show that the absent witnesses would place appellant in Cibolo at a time near to 11:30, leaving only about fifteen minutes in which appellant could have gotten from the scene of the killing to Cibolo. Realizing that the fixing of time generally is a matter of speculation or approximation on the part of witnesses, yet we are unable to say if the absent witnesses had been present and by their evidence had placed appellant in Cibolo as early as 11:30 or 12 o'clock, it might not have aided appellant's claim of alibi in view of his own testimony and that of Del Torro as to the time and manner in which appellant reached said place.
We have concluded that the State's motion for rehearing should be overruled, and it is so ordered.
Overruled.