
    MATHEWS v. STATE.
    (No. 7536.)
    (Court of Criminal Appeals of Texas.
    March 21, 1923.)
    1. Criminal law <§=>590(2) —Refusal to continue murder prosecution held not error.
    In a murder prosecution, trial court’s refusal to grant a continuance on affidavits reciting that attorneys appointed by the court,, due to lack of time, had been unable to prepare-the case for trial, and reciting expected testimony of absent witness, held not error, in view of the evidence.
    2. Criminal law <©=>1169(12) — Whether a confession agreeing with defendant’s testimony is voluntary held immaterial.
    Whether a confession, which agreed entirely with defendant’s testimony,at the trial, was voluntary is immaterial.
    
      3. Criminal law <&wkey;530 — Where defendant signed confession, variance in name as sign* ed and in defendant’s name as stated in< indictment was immaterial.
    An objection to a written confession signed “Mack Mathes,” on the ground that defendant was named in the indictment as “Mack Mathews,” was without merit, the subscribing witnesses and defendant testifying that defendant signed this confession.
    4. Jury <&wkey;82(2) — Insertion of names of men other than veniremen on sheriff’s return not error, these men not being treated as veniremen.
    The fact that there were men named on the sheriff’s return whose names did not appear in the return for summoning the jury was not reversible error, it not appearing that accused was required to treat any of these men as veniremen.
    5. Criminal law <&wkey;l (66(/2’C5) — Irregularities in sheriff’s return not' resulting in harlm to accused, not reversible error.
    Generally irregularities in the sheriff’s return of a writ for summoning the jury, which result in no harm to accused, are not reversible error.
    6. Criminal law <&wkey; 1092(6) — No review of bill' charging misconduct of jury not filed at term at which case was tried.
    ‘A bill embracing testimony supporting a motion for a new trial, charging misconduct of the jury, which was not filed during the term at which case was tried, will not be considered on appeal.
    Appeal from District Court, Tyler County; D, F. Singleton, Judge.
    Mack Mathews was convicted of murder, and he appeals.
    Affirmed.
    R. G. Storey, Asst. Atty. Gen., for the State.
   MORROW, P. J.

The offense is murder; punishment fixed at death.

The deceased was the wife of the appellant. By the written confession of the appellant, and by his testimony upon the trial, it was shown that he struck his wife with an axe several times while she was asleep in her bed; that the blows resulted in practically severing her head from her body. Appellant was 57 years of age. He had recently married the deceased, who was his second wife. The homicide took place about 10 days after their marriage. He claimed that shortly after' the marriage he was informed by one Allison that he had been going with the deceased for six years. Appellant mentioned this to his wife, and she admitted her relations with Allison, but said that they had ceased. Allison, appellant, and deceased discussed the matter at appellant’s home in the presence of each other, according to appellant’s testimony. Allison departed, and the wife became angry. This occurred on Sunday evening. On Monday night she went to church. Upon her return, she and her husband conversed for a while about the sermon, after which she retired. Appellant testified that before the marriage he knew but little of her, but that she gave him her word that she would try to live right, and he placed his confidence in her; that he was away from home preaching on Sundays and-.at home during other parts of the week. In his words, we give his description of the homicide:

“After she told me about those things it hurt me so bad, I got to worrying and studying over it until I didn’t know what to do. I didn’t think about doing anything to her; it hadn’t come to my mind before then, the passion come on me. There was an axe by the fireplace that she had made a fire with, the passion come on me, and I just reached and got it. I couldn’t say how many licks I hit her to save my life. Well, I didn’t know what to do. I goes over and sets the axe down and tried to get my suit of clothes; I goes on out, and I said — you know I left my suit case setting in the middle of the floor — I got a hundred yards away from the house and turned around and went and got it; so that was all about it.”

From his cross-examination, it appeared that after the homicide, he went to points in Texas and Louisiana. There was evidence corroborating the appellant as to the manner of the killing.

Appellant also testified that he was persuaded by promises to make the confession. The offense took place in March. The indictment was filed on the 8th day of August, and the trial took place on the 24th of that month. Attorneys were appointed by the court to represent the appellant. On the day before the case was called for trial, however, one of them declared his disqualification, and another was appointed in his stead. In the motion for a continuance, these facts were recited. .It was declared that one of the attorneys was not accustomed to practice criminal law, and that he depended upon the co-counsel first appointed to prepare the case for trial; that after the appointment of the new attorney there was insufficient time within which to prepare the case for trial. It is stated in the application that the .attorneys for appellant were advised by him that he desired to enter a plea of guilty; that he had been told by the sheriff and the county attorney, at the time the confession was made, that they would endeavor to get the court to be easy on him, and that he informed them that he wanted to plead guilty and throw himself upon the mercy of the court. Relying upon this statement, according to the averment in the application, no effort was made to prepare the case for trial; that upon learning that the county attorney had not made any promises to join the appellant in asking for mercy, and that the state would insist upon the jury assessing the death penalty, it was too late to prepare the case tor trial.

■ It is averred that the homicide took place at Turpentine Camp, about 20 miles distant from the county seat; that there resided at the Oamp a number of witnesses who would testify 'to facts and circumstances shoeing improper conduct of appellant’s wife with other men. There is also an averment as to the absence of the sheriff, by whom he expected to prove that, before the written confession was made, the sheriff had told the appellant that if he would make a confession the court would be easier on him, and that he would speak a word to the court in appellant’s behalf.

The application for continuance is such as was within the discretion of the trial court to overrule. The names of the witnesses who would testify to any material facts are not given. Considering the evidence developed upon the trial, even if the appellant had been able to procure witnesses testifying to the fact that his wife had been guilty of improper conduct, the trial court was justified in his conclusion that it would not change the result. The improper conduct would manifestly have related to a time prior to the marriage, and the appellant’s wife, as we understand it, had in the household an illegitimate child. There is no suggestion in the motion that appellant had any '-excuse for the homicide or any defense to the prosecution; nor is it shown that any effort had been made to procure the attendance of the sheriff. The application does not purport to be a statutory one, and does not aver that the testimony could be had upon another trial or that the motion was not made for delay. It was such an application as appealed alone to the trial judge, and this court would not be in a position to review his action. The purported testimony of the sheriff apparently would have been of no avail, for the reason that the confession agrees entirely with appellant’s testimony on the trial, and, even though the remarks mentioned were made, it could have no application to the testimony of the appellant upon the trial of his case, in which he admitted that he had murdered his wife.

The voluntary testimony of the appellant, to which we have adverted, rendered the question of the voluntary character of the confession immaterial. Parker v. State, 91 Tex. Cr. R. 68, 238 S. W. 948. The written confession introduced in evidence is signed “Mack Mathes.” It was witnessed by two witnesses. In the indictment it appears as “Mack Mathews.” Objection was made to the receipt of the confession, upon the grbund that it did not purport to have been signed by the-appellant. On this issue the testimony of the subscribing witnesses and the county attorney was introduced in evidence, showing without dispute that the signature to the confession was written by the appellant and witnessed by them in his presence; that they saw him sign it. Appellant also testified that he signed it. The objection, we think, is not meritorious.

A motion to quash the venire was made on the ground that the return did not show that all persons drawn on the venire were served, and shows that some persons served were not drawn, and that it does not show the diligence used by the' sheriff. Thirty-six men were ordered, and the sheriff’s return attached to the bill shows that they were all served by personal notice. On the return, after giving a list of all veniremen who were named in the writ, there appear seven other names. How or why these names appear on the return is not explained. Inasmuch, however, as all those drawn were summoned, and the jury apparently obtained from them, we are unable to compehend the importance of the fact that there were additional names on the sheriff’s return. If they were summoned, the appellant was not required to select from those on the return who were not on the venire list. The record does not show that he was required to treat any of them as veniremen. As the matter appears in the record, we fail to perceive any error in the court’s ruling. Generally speaking, any irregularities in the sheriff’s return, which result in no harm to the accused, are not ground for reversal. Charles v. State, 13 Tex. App. 658; Parker v. State, 33 Tex. Cr. R. 111, 21 S. W. 604, 25 S. W. 967; Whittington v. State, 86 Tex. Cr. R. 5, 215 S. W. 456.

In another bill there is embraced testimony introduced to support an averment in the motion for new trial charging the misconduct of the jury. The court adjourned on the 9th of September, and the bill was not filed until- the 2d of December following. Not having been filed within the time allowed by law, this court is not authorized to give it consideration. Bills of thisi kind should be filed during the term at which the case was tried. Parroccini v. State, 90 Tex. Cr. R. 320, 234 S. W. 671; Probest v. State, 60 Tex. Cr. R. 608, 133 S. W. 263; Black v. State, 41 Tex. Cr. R. 185, 53 S. W. 116.

We find no error in the record, and the evidence supports the verdict.

The judgment is therefore affirmed. 
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