Ector, P. J.
The defendant in this case was indicted, in the District Court of Montague County, for the murder of John Harris. He was tried at the October term, 1878, of said court, convicted of murder in the first degree, and has prosecuted his appeal to this court. No objection was raised in the court below to the sufficiency of the indictment. The indictment is a good one, has all the requisites prescribed by the statute, and follows the common-law precedents of an indictment for murder.
[106]*106The first question which we propose to consider is presented in defendant’s first bill of exceptions. A writ of special venire facias was- duly issued by the district clerk of Montague County, to which were attached the names of sixty persons to be summoned by the sheriff, from whom the jury for the trial of this cause was to be selected. Said writ of special venire facias was delivered by the clerk to the sheriff of Montague County. There is no objection to the manner in which the names on said list were obtained. After both parties had announced ready for trial, and the defendant had been duly arraigned and pleaded not guilty to the indictments, and five jurymen had been empanelled in the case, the defendant, as stated in his bill of exceptions tendered to the court, then for the first time ascertained that of the sixty persons whose names were on the special venire but thirty-five were found and summoned by the sheriff, and that the sheriff, on his own motion, summoned twenty-five additional persons to complete the venire, whose names are stated by him in his return on said writ. The defendant therefore challenged the array, and moved the court to set aside said venire, which motion the court overruled; to which ruling the defendant then and there duly excepted, because, “ 1st, the sheriff erred in serving said twenty-five additional jurymen on his own motion ; 2d, said sheriff' had no authority to summon said twenty-five additional jurymen, and the court erred in requiring the defendant to proceed with the trial of the cause with said illegal jurymen then empanelled, and to pass on the remainder of said illegal panel.”
The court, before signing this bill of exceptions, added to it the following qualification : “ After the case had proceeded to trial, and five jurors had been empanelled and sworn in the case, the defendant’s counsel stated that all the jurors drawn upon the special venire by the clerk had not been summoned by the sheriff, and that the sheriff had summoned other persons to complete the number sum-[107]*107maned to sixty; and the defendant, by counsel, therefore challenged the array for that reason. The court overruled the motion, but informed the counsel, at the time, that when any individual juror’s name was called who was so summoned by the sheriff, and whose name was not found upon the list attached by the clerk to the special venire, a challenge would be sustained; and after all the names found upon said list so drawn by the clerk had been called, the defendant’s counsel challenged the remainder; which challenge was sustained by the court, and the jury was completed from jurors afterwards summoned by the sheriff by order of the court.”
We believe that all the rights of the defendant were fully secured by these orders and rulings of the court. The defendant was not required to select from those illegally summoned by the sheriff on his own motion, and the jury was formed just as though the irregularity had not been committed.
But one cause, under our statute, is allowed as a challenge to the array. Art. 3034, Paschal’s Digest, is as follows: “ The defendant may challenge the array for the following cause only: that the officer summoning the jury has acted corruptly, and has wilfully summoned persons upon the jury known to be prejudiced against defendant, and with a view to cause him to be convicted.” Swofford v. The State, 3 Texas Ct. App. 88; Williams v. The State, 44 Texas, 34.
The points raised in defendant’s second bill of exceptions are not well taken. After the venire had been exhausted, and only five jurors empanelled, the court verbally ordered the sheriff to go beyond the court-house yard and summon thirty additional jurymen, legally qualified for the trial of this cause, and to report their names to the clerk; which the sheriff proceeded to do. The clerk gave the county attorney and the counsel for the defendant a list of the names of the thirty jurors summoned by the sheriff upon [108]*108the verbal order of the court, and the court ordered counsel to proceed and complete the organization of the jury from said list. To which the appellant excepted, for the following reasons, to wit: —
“1. That there was no special venire facias issued to complete the jury in said cause, and that the sheriff proceeded to summon said persons on the verbal order of the court alone.
“2. That there was no oath administered to the sheriff or person summoning said jurors, as the law requires ; and that neither defendant nor his counsel knew who did summon said jurors, as there was no written return made to the court showing the manner of summoning said jurors, nor by whom they were summoned.
61 3. That defendant requested the court to give him one day’s notice of the thirty jurors summoned as last aforesaid ; which the court refused to do.”
The judge who presided at the trial signed the bill of exceptions, with this qualification, to wit: “ That, upon the beginning of the term, the court in open court administered to the sheriff and his deputy the oath prescribed by sect. 12 of the jury law of 1876, and the jury was summoned by no person but the sheriff and his deputy so sworn.”
The talesmen were summoned in the manner prescribed by statute. Gen. Laws Texas 1876, p. 82, sect. 23. See also art. 3030, Pase. Dig.
The defendant was not entitled to have a list of the tales-men served on him. Johnson v. The State, 4 Texas Ct. App. 268.
The qualification added to the bill of exceptions by the court shows that the officers by whom the jury were summoned were sworn in the proper manner. Gen. Laws 1876, p. 80, sect. 12.
The evidence shows that John Harris was murdered in the county of Montague, on the morning of the 17th of January, 1878; that he came to his death from a gunshot [109]*109wound, which appears to have been made with a shotgun,— the shot, all but one, entering his body at the same place, on the left side, near the heart, and lodging on the right side, just under the skin. He was killed at the house where he and his father and the defendant lived.
The next question raised by defendant, and set out in his third bill of exceptions, relates particularly to the ruling of the court in admitting in evidence what is styled the written confession of defendant, a copy of which is attached to said bill of exceptions, marked “ Exhibits B & C.” The county attorney introduced Lee N. Perkins, sheriff of Montague County, as a witness in behalf of the State; handed him said exhibits “B” and “C,” and asked him if he had ever seen those papers before; to which question he (the witness) answered that he had seen them before.
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Ector, P. J.
The defendant in this case was indicted, in the District Court of Montague County, for the murder of John Harris. He was tried at the October term, 1878, of said court, convicted of murder in the first degree, and has prosecuted his appeal to this court. No objection was raised in the court below to the sufficiency of the indictment. The indictment is a good one, has all the requisites prescribed by the statute, and follows the common-law precedents of an indictment for murder.
[106]*106The first question which we propose to consider is presented in defendant’s first bill of exceptions. A writ of special venire facias was- duly issued by the district clerk of Montague County, to which were attached the names of sixty persons to be summoned by the sheriff, from whom the jury for the trial of this cause was to be selected. Said writ of special venire facias was delivered by the clerk to the sheriff of Montague County. There is no objection to the manner in which the names on said list were obtained. After both parties had announced ready for trial, and the defendant had been duly arraigned and pleaded not guilty to the indictments, and five jurymen had been empanelled in the case, the defendant, as stated in his bill of exceptions tendered to the court, then for the first time ascertained that of the sixty persons whose names were on the special venire but thirty-five were found and summoned by the sheriff, and that the sheriff, on his own motion, summoned twenty-five additional persons to complete the venire, whose names are stated by him in his return on said writ. The defendant therefore challenged the array, and moved the court to set aside said venire, which motion the court overruled; to which ruling the defendant then and there duly excepted, because, “ 1st, the sheriff erred in serving said twenty-five additional jurymen on his own motion ; 2d, said sheriff' had no authority to summon said twenty-five additional jurymen, and the court erred in requiring the defendant to proceed with the trial of the cause with said illegal jurymen then empanelled, and to pass on the remainder of said illegal panel.”
The court, before signing this bill of exceptions, added to it the following qualification : “ After the case had proceeded to trial, and five jurors had been empanelled and sworn in the case, the defendant’s counsel stated that all the jurors drawn upon the special venire by the clerk had not been summoned by the sheriff, and that the sheriff had summoned other persons to complete the number sum-[107]*107maned to sixty; and the defendant, by counsel, therefore challenged the array for that reason. The court overruled the motion, but informed the counsel, at the time, that when any individual juror’s name was called who was so summoned by the sheriff, and whose name was not found upon the list attached by the clerk to the special venire, a challenge would be sustained; and after all the names found upon said list so drawn by the clerk had been called, the defendant’s counsel challenged the remainder; which challenge was sustained by the court, and the jury was completed from jurors afterwards summoned by the sheriff by order of the court.”
We believe that all the rights of the defendant were fully secured by these orders and rulings of the court. The defendant was not required to select from those illegally summoned by the sheriff on his own motion, and the jury was formed just as though the irregularity had not been committed.
But one cause, under our statute, is allowed as a challenge to the array. Art. 3034, Paschal’s Digest, is as follows: “ The defendant may challenge the array for the following cause only: that the officer summoning the jury has acted corruptly, and has wilfully summoned persons upon the jury known to be prejudiced against defendant, and with a view to cause him to be convicted.” Swofford v. The State, 3 Texas Ct. App. 88; Williams v. The State, 44 Texas, 34.
The points raised in defendant’s second bill of exceptions are not well taken. After the venire had been exhausted, and only five jurors empanelled, the court verbally ordered the sheriff to go beyond the court-house yard and summon thirty additional jurymen, legally qualified for the trial of this cause, and to report their names to the clerk; which the sheriff proceeded to do. The clerk gave the county attorney and the counsel for the defendant a list of the names of the thirty jurors summoned by the sheriff upon [108]*108the verbal order of the court, and the court ordered counsel to proceed and complete the organization of the jury from said list. To which the appellant excepted, for the following reasons, to wit: —
“1. That there was no special venire facias issued to complete the jury in said cause, and that the sheriff proceeded to summon said persons on the verbal order of the court alone.
“2. That there was no oath administered to the sheriff or person summoning said jurors, as the law requires ; and that neither defendant nor his counsel knew who did summon said jurors, as there was no written return made to the court showing the manner of summoning said jurors, nor by whom they were summoned.
61 3. That defendant requested the court to give him one day’s notice of the thirty jurors summoned as last aforesaid ; which the court refused to do.”
The judge who presided at the trial signed the bill of exceptions, with this qualification, to wit: “ That, upon the beginning of the term, the court in open court administered to the sheriff and his deputy the oath prescribed by sect. 12 of the jury law of 1876, and the jury was summoned by no person but the sheriff and his deputy so sworn.”
The talesmen were summoned in the manner prescribed by statute. Gen. Laws Texas 1876, p. 82, sect. 23. See also art. 3030, Pase. Dig.
The defendant was not entitled to have a list of the tales-men served on him. Johnson v. The State, 4 Texas Ct. App. 268.
The qualification added to the bill of exceptions by the court shows that the officers by whom the jury were summoned were sworn in the proper manner. Gen. Laws 1876, p. 80, sect. 12.
The evidence shows that John Harris was murdered in the county of Montague, on the morning of the 17th of January, 1878; that he came to his death from a gunshot [109]*109wound, which appears to have been made with a shotgun,— the shot, all but one, entering his body at the same place, on the left side, near the heart, and lodging on the right side, just under the skin. He was killed at the house where he and his father and the defendant lived.
The next question raised by defendant, and set out in his third bill of exceptions, relates particularly to the ruling of the court in admitting in evidence what is styled the written confession of defendant, a copy of which is attached to said bill of exceptions, marked “ Exhibits B & C.” The county attorney introduced Lee N. Perkins, sheriff of Montague County, as a witness in behalf of the State; handed him said exhibits “B” and “C,” and asked him if he had ever seen those papers before; to which question he (the witness) answered that he had seen them before. The witness Perkins then stated that he and Thomas Harkins had the defendant, Charley Harris, under arrest, and were at the shop waiting to have the prisoner ironed ; that the defendant had the papers in his possession, and handed them to witness, and told witness they contained his confession as to how John Harris was killed, and that he wanted to make the statement, and that he had written it out; that witness then told him that any confession he would make would be used as evidence against him; that he never persuaded defendant to make the statement, nor did he force defendant to make it, nor use any influence to induce him to make the confession; that the first he knew of it, the defendant handed the statement to him, and told him he had written it out, and that it was his (defendant’s) statement about the matter; that, as soon as defendant handed witness the confession and told him what it was, he then warned defendant that any such statement or confession would be used against him ; that after he had warned the defendant, he read the confession, over; that Mr. Harkins then told the defendant that any statement made by him in regard to the killino- of John Harris would be taken as evidence [110]*110against him; and that the defendant then said that he would not have killed his brother John if it had not been for his father. The court then asked the witness whether or not the defendant asked for the confession to be returned to him, after he had been warned that it would be used as evidence against him; and that the witness answered that he did not, and that defendant showed no desire whatever to take back the written statement, but went on and made a verbal statement, in addition to his written statement, after being warned that it would be used against him; that he made the statement voluntarily, and without any persuasion whatever. Whereupon the county attorney proposed to read said confession in evidence, which the court permitted him to do; to which the defendant then and there objected, which objections were overruled by the court, to which ruling the defendant excepted, and took a bill of exceptions.
We do not think the court committed an error in allowing the county attorney to read said written confession. It is evident that the exhibits “ B ” and “ C ” had been prepared before they were handed to the witness by the defendant. If the defendant, after he was cautioned that any statements made by him in regard to the killing of John Harris would be used in evidence against him, had shown any desire to get back the written confession, or to have the papers, exhibits “ B ” and “ C,” returned to him by the witness, then the objections to the admission of this evidence would have been well taken. On the contrary, after being so cautioned, he proceeded to make a verbal statement to the witness about the killing of his brother.
No objection was taken in the court below to the confessions of defendant made to the witness R. Cook, as testified to by him. The evidence was properly admitted. His confessions to Cook were freely and voluntarily made, without compulsion or persuasion, after having been first cautioned by Cook that they could be used against him.
[111]*111The court did not err in permitting certain entries in the memorandum-book, described in the fourth bill of exceptions, to be read in evidence, after the entries were proved to be in the handwriting of defendant by the witness Shoemaker, who had first testified that he was acquainted with the handwriting of the defendant, Charley Harris, and that he had seen him write, and he knew his handwriting.
One of the grounds set out in the motion for new trial is, that the court erred in overruling the defendant’s application for continuance. We find no such application copied into the transcript, and no bill of exceptions taken to the ruling of the court on such an application. The action of the court in overruling an application for continuance will be considered only, on appeal, in a bill of exceptions taken at the trial, and embodied in the transcript sent up to this court on appeal. Nelson v. The State, 1 Texas Ct. App. 41, Grant v. The State, 2 Texas Ct. App. 1; Allen v. The State, 4 Texas Ct. App. 581.
The charge of the court was a clear and correct enunciation of the law applicable to the case. No exception was taken to it, and no additional instruction was asked.
It would be a useless consumption of time to comment upon the facts, for the purpose of showing that the verdict of the jury is sustained by the evidence. The evidence proves beyond a reasonable doubt that the defendant murdered his brother, John Harris, and the external facts and circumstances having connection with and relation to the killing furnish satisfactory evidence of the existence of a sedate, deliberate mind on the part of the defendant at the time he committed the act, and that the killing was the result of a formed design to take the life of the person slain.
We have given to the questions in the record now before us a most careful and patient consideration. The defendant has not been represented by counsel in this court. In view of the momentous issues involved, we have examined the [112]*112entire transcript with the most rigid scrutiny, but find no error to justify the reversal of the judgment. Believing that the defendant has had a fair and impartial trial, and been legally convicted, the judgment óf the District Court is affirmed.
Affirmed.