From the album Songs From Burke County
He Needed Killin’
By the age of 35, William Waightstill Avery was a prominent lawyer, community leader, and political figure in Burke County. In what likely started as a normal day at work in October 1851, he appeared as legal council for Ephraim Greenlee in a Marion courtroom. Samuel Fleming had made charges of unpaid debts against Greenlee, while Greenlee contended that these allegations were false. Avery enthusiastically defended his client, and the court ruled in his favor. Outraged by the verdict, Samuel Fleming attacked Avery in front of Whitson’s Store with a cowhide whip. Being unarmed and of much smaller stature, Avery did not fair well in the scuffle.
Approximately three weeks later, Samuel Fleming rode into Morganton bragging about the attack and running down Avery’s name to anyone who would listen. As a Tuesday afternoon session of Superior Court resumed, Fleming walked into the courtroom and stood directly in front of Avery. At point blank range, Avery drew and fired his pistol, killing Samuel Fleming in front of a courtroom full of people. Avery quickly surrendered himself and was taken to jail. He acquired the services of three Rutherfordton lawyers, and the next day he was arraigned. Two days later he was tried for the crime of murder. Following a deliberation that reportedly took less than 15 minutes, William Waightstill Avery was found not guilty on the grounds on temporary insanity.
In the years after the trial, Avery continued a successful law practice and political career. He was killed by Kirk’s Raiders during an 1864 Civil War skirmish on the Winding Stairs.