North Carolina standard. [volume] (Raleigh, N.C.) 1850-1852, 1851-12-03
from the Mountain Banner,1
THE TRIAL OF W. w. AVERY. ESQ.

| Ma. EDITOR Rnmor with her thousand tongue
has distorted the melancholy affair which occurred
at Morganton Tuesday the llth instant, that it i
deemed proper to give plain unvarnished statemen
Of the facts of the they brought out OIL
the trial. The time and place of the occurrence ant
the prominent position occupied by both the deceased
and Mr.. Avery, have already made known throu gh
out the State; and it is important that the public
mind should be perfectly enlightened before its opin
ion is formed. l shall state the facts in the orde
| in which they occurred. and not in the order il
which they were brought out before the Jury.
| Many suits pending between Mr.. Flemmine
and the uncle of his wife, Mr.. Ephram Greenlee, il
Mcdowell Court. Mr.. Flemming had judgments
against him for large amount Mr.. Greenlee filed
bill in Equity to enjon the collection of the judg
ments, the ground of fraud in obtaining the
on which the judgments were founded. The injunc
ton Was granted, and Mr.. Flemming took witness
Mr.. Deal, his bosom FRIEND and man of excellen
character, procure some testimony to what the al
Legations contained in Greenlee's bill. After con-
versing with the person whom he visited to procure
the testimony, on his return home, he remarked to
Mr.. Deal, that he blamed Avery for filing the bill
that he had been against him before, and had fire..
quently crossed his path, that he Flemming had tried
TO insult him, and he would not resist it, and that he
would be ID if he did not cowhide him. This was
ten days or two weeks before Mcdowell court. AT
Mcdowell court Mr.. Flemming's answer was filed
denying the truth of the allegations of Greenee's
Bill; and Flemming's counsel on a motion to dis
solve the Injunction, commented with much severity
upon the Bill. MIR. Avery, who was one of Green
lees counsel, who had drawn the Bill, who the
only counsel present at the time, insisted that the
Bill true, and commended that the answer not
fully responsive to the Bill. 1t admitted on all
hands, he said nothing personally offensive TO Elem
ming. Before the case was disposed of, Flemming
left the Court House, and he declared 10 various
witnesses, purchased large cowhide, put it under
his coat and waited for Mr.. Avery. After attending
other business, Mr.. Avery left the Court House,
short time after the Judge and other members of the
Bars at the door the petes separated they going up
street to their boarding house. and Mr.. Avery down
street 10 his, in company with his client, with thick
oVercoat buttoned tight around him, and book or
books under his arm. Mr.. Flemming, Who had been
passing 10 and fro for some time. met him. and Mr.
Avery's client walked on, sup2osing Flemmng in
tended speaking TO him on business. He asked Ave
ry if he held himself out OF the Court House respon-
sible for what he said in it. Mr.. Avery replied that
he advocated the cause of his client in the Court
House, and desired to have difficulty with him,
and passed on. Flemming then drew the cowhide
from under his coat and said will you fight % and
the word fight commenced striking Mr.. Avery with
the cowhide very rapidly. Mr.. Avery's back being
turned towards him at the time, gave him from three
to six blows. Mr.. Avesy Immediately turned, and
the first blow knocked FIemming 10 his hands and
knees, and also second time, as some of the wit
nesses thought. Flemming recovered, and with
stone in his hand, struck Avery several blows
the forehead, eye and temple, and the parties
then separated. Femming then cursing Avery, and
telling him he would fight him with any thing from
the point OF pen knife to the mouth of cannon.
Avery was carried to his room. His face very
much swollen, his eye infamed, and he evidently be-
wildered by the blow he had received After bath
ing his wounds. he asked Dr. Erwin, his relative,
I" get him some kind of arms. for he did not know
what might happen before he left town." DR.. Err
win went off to his dinner, he then dressed Flem-
ming's thumb, which had been injured, and procured
small pocket pistol and returning to Avery's room,
gave it to him, remakng it the best he could do.
Avery then asked Dr. Erwin and Mr.. E. P. Jones,
member of The Bar, what he ought do but neither
of them gave him any advice. The pistol furnished
was very small, aud would have been useless, ex-
cept in very close combat, and DR.. Erwin who was
examined in behalf OF the State, stated that from the
injuries Mr.. Avery had received he was wholly
bic TO engage in anY kind of combat with Mr.. Fem-
ming on that evening. After remaining in town
some hour and half, he left in his buggy for his
home in Morganton.
Mr.. Flemning, in the meantime, was going about
over town boastng that he had cowhided Avery, and
went into shop, making the same boast; some one
remarked to him, g. il is a wonder two three of
them had not jumped upon you and whipped you,''
to which he replied, that he was well prepared, he
was well armed, and could have killed four or five
Of them, before they could have got to him. He
boosted to several witnesses, that he had cowhded
Mr.. Avery-said that he would not take thousand
dollars for it.
Court at Morganton, where Mr.. Avery lived, came
on two weeks afterwards. In the meantime Flem-
ming advised not to go to Morganton, he said he
had business at Morganton, and always went where
he had business; that he not afraid, for he gen.
orally could look two sides at once On the day be-
fore the homicide he came to Mcdowell Court House,
and was again advised not to go to Morganton. He
then procured large Bowie-Knife, and remarked he
would rather have that than halfdozen pistols. He
reached Morganton about 10 o'clock on Tuesday, af-
ter court called, and put up at DR.. Happodts
H otel, of a mile from the Court House. He was
said have been in the Court House before dinner
and seen in large crowd, attending sale i'm
Inediately before dinner. On neither of these occa-
sions did Mr.. Avery see him. Just at the calling of
Court, Mr.. Flemming was seen by witness coming
from the direction of his hotel and crossing the
street from the enclosure which surrounded it, he
met a witness and spoke 10 him in loud tone of
voice, and said, give my respects TO your lady.
understand she said to you if you were to come to
her after receiving cowhiding without resenting it,
she would be tempted to give you another" Seve-
raj persons were standing around and near, when the
remark was made. Witness went some fifty yards.
into the lower room of the Court House, and saw
Avery with drunken CLIENT hanging TO him. and
talking to him. Avery, from his office, would have
approached the Court House, in opposite direc
ton to that by which Flemming approached it from
his hotel The first that called when Court
met, was one in which Flemming party. His
counsel declared they were not ready. Avery was
sitting in front of the Clerks table the left Flen-
ming started towards the Clerks table, with his cloak
on-he got almost to Avery, feet from him,
and several persons between them he stopped turned
back, threw off his cloak, and then went to the
Clerks table, directly in front of Avery, and about
this time there several persons between them,
and bench about breast high and tw feet wide and
one or two clients were pulling at Avery, who did
not see him. He remained at the table moment,
and then passed clear of the bench and persons be-
tween Avery and himself and approached his counsel
in front, instead of behind is usual and Ieant
ward to speak to him. with his side to Avery, and
about six feet from him. Avery rose up instantly,
presented his pistol and fired about the time Fern-
ming took his position. Femming Immediately rose