North Carolina standard. [volume] (Raleigh, N.C.) 1850-1852, 1851-12-03

which he was placed. R. c. Pearson, ESQ.,, of Nor
canton, and John Burgin, Esq, and two other gen.
temen of the highest responsibility and intelligence
testified to the effect. 1t also in evidence
, that Mr.. Avery of exceedingly kind peacea
BILE and amiabe disposition, and had never had rem.
contre before with any one, and that Flemming had
out of prison and arraigned on Wednesday, and his
trial appointed for Friday. No offer was made on
either side to remove the case or to continue it.
On Friday the prisoner was brought to the bar, and
the following jury sworn and empanelled to
wit:
Richard V. Michaux, Philip Warck,
I William Connolly, jr., Wm. R. Aiken,
Abram franklin, James Estes
Stephen Wintus, Jacob Seagle,
Philip Whsnant, ]. L. Collins,
Peter ]. Walker, l.. w. Melton,
The testimony was examied with great care. and
when it was closed, the argument was commenced by
the States Counsel and of the prisoners Coun-
sci, N w. Woodhn, Esq, and I. K. Caldwell. ESQ.,,
addressed the jury in reply. At the request of the
States Counsel who was two unwell TO finish the ar
gumen that night, the argument was adjourned over
ill next morning, when J. G. Bynum, Esq, con-
cluded for the prisoner and the States Counsel re-
piled.
| Mr.. Avery's counsel commended that in all criminal
cases the jury the Judge of the Law and the
facts. and while they discla aimed all desire to be IN
derstood as being wanting in respect to His Honor
Judge Battle, still it but proper that the jury
should know what were their powers and what were
their duties. 1t was admitted that every staying
prinla facie murder. But it was commended that this
could only be mansaughter at most, from the nature
and character of the provocation. The deceased had
formed the deliberate design to degrade the prisoner
armed himself all points, way laid him, attacked
him unawares, when his back was turned upon him,
applied that instrument of chastisement only used
upon the most degraded slayes-that he boosted of
1t, up few minutes before his deatt-that to
cowhide man was new thing in North Carolina.
That the reason whyfmprder was estimated to man.
sau ghter was, because by the provocaton given,
reason dethroned, and the Staying took place
while had thus temporarily lost its empire
that the length of time allowed the passions to cool
to be determined by the character of the provo
cation. How long would it take mans passions TO
cool who had suffered such indigny as that offer
ed. to the prisoner? The more he 5rooded ii,
the more his passions would be named, and the less
prospect there would be for to resume its
pre the physical pain here was nothing, it the
nifty, the loss of of position, of character
In this country where all equal, where all
rulers, laws should encourage protect
their honor; it was the first lesson taught chill
dren, they had right to protect their chaacter-to
defend ito fight for it. The prisoner had charac
ter to maintain he occupied prominent position in
the councils of State, he was bound to protect the
honor o: his family, he owed it as duty to them-he
owed it as duty to the people who had honored him.
man who cowhdes another in cool blood, with in
tent degrade him, forfets his life, and ought
forfeit it. This the deceased knew, he prepared
take the prisoners life when he attacked him with
the cowhide, if he had been able to offer effectual
resistance; he to Morganton armed with the
weapons of his choice. The prisoner could not have
renewed the combat at Mcdowell he was physically
unable from the injuries he had received, he had no
weapon of the slightest And to have attacked
Flemming then, would have been to rush upon GER
tain and inevitable death. Upon the first sight of
him, his reason was overwhelmed and forgfslful of
the presence in which he he instantly shot the de-
stroyer of his peace-the man who without ioa of
cause had wrecked his happiness. 1t was his only
chance to do it. That was the only time. Had his
been continued, he intended Immediately to have
mounted his horse rode on and overlook his that
III H. hDas todt hath had 0vp Ave OH
had stood within fey feet of him, before him, in
the Court House, and he dared not vndicate his hon.
or. Could he have done otherwise! Admitting his
reason had not been overwhelmed, had he not right
to do'it. Would the law compel a man to walk
through life blasted thing, bereft of the respect of
his friends his relatives and family, without any fault
of his own, and to sink into an early and dshonored
grave, rather than to do the on act which could
deem him ! The alienation presented to the prison.
er was a dreadful one. His own dishoner, perhaps
early insanity, and early grave or the death of the
source of all his misfortunes. Had he not right
to choose the he pursued Is 1t only to protect
ones flesh, that he is allowed to take life. Has not
an American citizen right to protect that which is
dearer than lfe-that without which, life itself is
curse2 And if the deceased could think in that
place to which he has gone, he could not complain.
He himself was the cause of all-he had sowed the |
wind, he must have expected to reap the whrlwind.
This may be in violation of the law laid down in |
the books. But law is only genuine rule--framed |
by man and like every thing done by him is imper-
feet, and the main reason why in criminal cases the
law, as well the facts is to be judged of by the
jury, is that they, in administering the law, may pro-
vide for these exgencies when strict observance of
the letter of the law would produce the greatest in
justice. By following it here the greatest injury |
would be inflicted. This constitutes excep- !
ton which the jury have right to make, and which
they ought unless they determined to say, of
their best citizens shall be eternally dsgraced with
any fault of his own, and shall not the only
means under heaven whereby his honor can be pre-
served pure and intact.
But that his reason was temporarily dsthroned no
one could doubt who had heard the testimony. The
prisoner of mild pacific nature. His character,
the tenor of his whole life showed that his heart re-
VOTED at bloodshed. He provoked no one, he moes-
ted Attacked as he was, he placed in a |
new position His sensitive mind brooded over it, |
Awake, it was ever present to his imagipation-at
night it present in his dreams, and startled him |
in his sleep. Court week arrived, and the compan-
ions of his boyhood and the associates of his man
hood met him. His diseased imagination could de- |
tect in every face disposition to avoid him. as dis
honored-as leprous being--he lost all command of
his faculties-he knew not what he was doing, he |
wandered about not knowing what he was doing, or !
where he was going, he was greved to Madness and
at this moment the of all his misees present.
ed himself before him, in attitude of insult and
bravado, and under the frenzy thus excited, he an
stdnty took his life and he is excuseds in the sight
of heaven, and when God pardons, man dare nutI