The very eloquent and forceful motion for rehearing in this *Page 650 case emphasizes two reasons for which it is contended a rehearing should be granted and the judgment of the trial court reversed. The first relates to the bill of exception complaining of the action of the trial court in refusing to disqualify the Deputy Sheriff from waiting on his court, because he was a witness in the case. A complete answer to the argument thus presented is that the Court of Criminal Appeals is a court of law and not of equity. The argument given is calculated to appeal to the legislature, in behalf of some legislation on the subject, but this court cannot make the law which the legislature has thus far declined to pass. It is not within our province to supersede the discretionary power of the trial judge, so long as his actions in exercising the same are within his jurisdiction.
The second question considered in the motion relates to the questions of the district attorney concerning specific acts of misconduct on the part of the defendant. This has been fully and fairly treated in the original opinion. Our review of the record has served to convince us that the right conclusion has been reached, and we think the motion for rehearing must be overruled, which is accordingly done.