ON APPELLANT’S motion for rehearing.
BEAUCHAMP, Judge.*257Appellant has filed a motion for rehearing based on the argument that it was within the discretionary power of the trial court to certify the necessity that the statement of facts on motion for new trial be in question and answer form. This is not a discretionary matter, but is directly contrary to Article 760, Vernon’s Ann. C. C. P., as amended by Acts of the 42nd Legislature. See Annotations under Note 23, above Article.
If there is ground for confusion, by reason of any direct statement or any implication found in any decision on the subject, may it be understood that it was never the intention of this Court to hold that a trial judge had such discretionary power other than in bills of exception, for which the legislative authority is specifically provided. Appellant’s argument is plausible, but this Court is impelled now, as always, to follow the rules as laid down, whether they be in favor of the State or the appellant. The action of this Court in the matter should be taken independent of any question being raised by the State’s Attorney. Apparently, the State’s Attorney seldom feels it necessary to raise the question, because it is well known that this Court will act accordingly, unless the human equation so acts that the writer of an opinion overlooks the fact. If that is done on the original submission, the judge writing on motion for rehearing usually discovers the oversight and makes the correction, as was done in the instant case.
The trial judge made an order for which he had no authority. We have given consideration to the further question as to whether or not this deprived appellant of a statement of facts, without any fault of his own, which within itself would call for a reversal of the case. It appears from the record, however, that the attorney for appellant accepted such statement of facts and the question is not presented for our consideration. If appellant had refused to accept the question and answer statement and had demanded a narrative statement, the refusal of the court to order it would have been grounds for reversal.
Without any intention to modify the expressions of the original opinion or that on the State’s motion for rehearing, which refer to the misconduct of the prosecuting attorney, we, nevertheless, overrule the appellant’s motion for rehearing. .