1. If there was any error committed in overruling the defendant’s application for a continuance, it has not been made apparent to us by the record. We find in the record a. bill of exception taken to the action of the court in *351overruling defendant’s application for a continuance, but the application itself does not appear in the record, nor are its contents or substance stated in the bill of exceptions. We cannot, of course, determine the merits of such an application without being informed of the grounds therein set forth. Where the ruling of the court refusing a continuance is relied upon as error, the application for the continuance should appear in the record on appeal, accompanied by or included in a proper bill of exception.

2. There was no error in the action of the court in regard to the venire and the formation of the jury. A special venire issued for sixty persons to serve as jurors. Less than thirty-six of those persons were summoned and in attendance. It is not required by the law that as many as thirty-six of the special venire shall be summoned and in attendance, before the defendant can be put upon his trial. It is provided that a special venire shall issue for not less than thirty-six nor more than sixty persons, to serve as jurors. (Code Crim. Proc., Art. 605.) And that the officer executing this writ shall in his return thereof state the names of those summoned, and state the diligence that has been used to execute the writ upon those not summoned, and the cause of failure to summon them. (Code Crim. Proc., Art. 614.) Upon this return it is made the duty of the clerk to make a certified copy of the list of names of persons summoned under the writ, and issue a writ commanding the sheriff to deliver such certified copy to the defendant. (Code Crim. Proc., Art. 616.) It is then provided that, “When from any cause there is a failure to select a jury from those who have been summoned upon the special venire, the court shall order the sheriff to summon any number of persons that it may deem advisable for the formation of the jury.” (Code Crim. Proc., Art. 612.) It is quite clear to our minds from these provisions that it is no valid objection to proceeding with the trial, that a less number than thirty-six persons named in the special venire have been summoned. (Harris v. The State, 6 Texas Ct. App., 97.)

' 3. It was not error to admit in evidence the indictment pending against defendant for an assault with intent to murder the deceased. It was clearly admissible as evidence tending to establish a motive on the part of the defendant impelling him to the murder of the deceased. (Rucker v. The State, 7 Texas Ct. App., 549, and other cases there cited.)

4. We think the action of the court in refusing to receive the *352first verdict returned by the jury was correct. This verdict found the defendant guilty of murder in the first degree, and assessed the punishment at confinement in the penitentiary for ninety-nine years. It was not only an informal verdict as to the punishment, but it was contrary to the charge of the court, and was not such a finding as the court could receive. It was not only proper, but it was the court’s duty, to refuse to receive the verdict, and to call the attention of the jury to the charge of the court, and send them out again to consider of their verdict. (Code Crim. Proc., Arts. 712-715; Alston v. The State, 41 Texas, 39; Jones v. The State, 7 Texas Ct. App., 103.) So, also, it was-within the power of the court to have the second verdict corrected, the jury consenting thereto, by inserting the word “confinement” before the words “in the penitentiary for life;” though we think this was unnecessary, as in our opinion the-verdict was good without the insertion of the word “confinement.” (Jones v. The State, 7 Texas Ct. App., 103; Gage v. The State, 9 Texas Ct. App., 259.)

5. It was not error for the court to pronounce sentence upon the defendant after he had given notice of appeal. Sentence was necessary before his appeal could be taken, and an appeal to this court without sentence would have been dismissed. This-action of the court was in strict compliance with the law. (Code Crim. Proc., Art. 794; Hart v. The State, ante, p. 323.)

6. We find no error in the charge of the court. It was properly confined to murder in the first degree. There was no evidence which would have justified a charge upon any lower degree of homicide. Nor was there any error in refusing the two-special instructions requested by appellant, as one was clearly a charge upon the weight of evidence and the other was not the law..

We have noticed all the objections of the appellant presented by the record, and have found none of them tenable. That the-evidence amply supports the finding of the jury there can be no doubt. Defendant, in addition to strong circumstantial evidence-against him, confessed to several persons that he had committed the homicide under circumstances that made it nothing less than murder in the first degree. That his life has been spared by the verdict of the jury can only be attributed to the benign influence of mercy, and not to any mitigating facts attending the deliberate and cowardly assassination. The judgment is affirmed.

Affirmed.

Opinion delivered June 6, 1883.