[1.] The first complaint made in this case is, that the Court refused to continue this case on account of the absence of Col. D. J. Bailey, who, it is alleged, had no “ legal notice of the adj ourned term of the Court.” The defendant does not •pretend that he had employed Col. Bailey as counsel in this ease, or had taken any steps to procure his attendance. He was ably defended by competent counsel who represented him.
[2.] He moved for a continuance on the further ground, that he bad a material witness who was absent in the army. The State proposed to admit the testimony, if the defendant would state in writing what he expected to prove by this witness. He never used this evidence upon the trial. Indeed, this conviction rests fully upon the statements of the accused made before the committing magistrate.
[3.] He objects that the Court was not legally in session, and, therefore, that there was no grand jury, summoned according to law, to indict him. True, the clerk omitted to *354do his duty as required by the law; but we think the act was directory to the clerk, and that any failure on the officer’s part did not vitiate the proceedings, — more especially as no injury was caused to the defendant.
[4.] The main complaint in the case is, as to the charge of the Court as to the drunkenness of defendant. True, the charge is taken from the decision of this Court, principally, in Jones’s case, 29 Georga, and Choice’s case; and we are free to admit that the Court was not altogether happy in its language. But what is the proof in this case ? The deceased, who seems to have acted as enrolling officer for the militia of the third class, had started with the intentipn of going over to one of his neighbor’s. He falls in with Mr. Wise, and complains of wanting to drink. Mr. Wise tells him to call and he will supply him. They drink three drinks together. By this time, Pittman seems to have become entirely intoxicated. He falls down to sleep — dinner comes on, and he is permitted to sleep off his drunkenness. He, after waking, goes to the dinner-table himself. Some conversation took place between the parties about the old men going into the service. Wise declares that he had killed one man already, and that neither Pittman nor all the men in Butts county could carry him to the war-. It does not appear that Pittman had come to take him off. Indeed, we infer the contrary. He was on his way elsewhere when he called at Wise’s house. They had been friendly. Pittman was so drunk at Wise’s house that he took a nap, and did not sit with the family at the table ; afterwards, when at the table, Wise says that he became abusive — so much so, that he could not stand it. Still, there was no attempt to offer any violence. At this stage of the case, Wise went out and got his axe and gave him the blows upon the head which killed him. Gan this be otherwise than murder? Considering the provocation was by words only, the weapon used, that Pittman was a small man advanced in life, if the object of Wise was only to punish him, one of the chairs at the table would have seemed sufficient to have slaked his passion. But he must *355go out of the room and arm himself-, with an axe, a weapon not only likely, but sure to produce death, and not satisfied to inflict one mortal blow, he dealt two, each of which was mortal, in the opinion of the witnesses. No doubt Wise was penitent when he saw the effects of his unbridled temper. But it was too late. Not only the famed rivers of Abana and Pharpar, but all the waters of Israel would not have sufficed to restore his victim to life.
While we admit that the charge of' the Court was not as guarded as it might have been, no»,charge that the judge could have given, could, or ought to have changed the verdict founded on the statements of Wise himself; and if the facts could have been represented more favorable to him, he had a grown daughter present at the homicide, and in Court at the trial, who would have been called to testify.
Judgment affirmed.