Sharyn McCrumb - The Ballad of Frankie Silver

Nicholas Woodfin spoke for the defense. He argued first that although eighteen days had passed between the original encounter and the homicide, the outrage committed by Fleming was so gross, and Avery’s suffering and humiliation so great, that his passions had not cooled, and therefore his shooting of the victim was no more than manslaughter.

“Well, I will overrule that,” Kemp Battle declared, and he gave Woodfin a look that said: Damn your impudence. “The jury is directed to consider the offense to be murder, not manslaughter, if the defendant is found to be of sound mind at the time of the incident.”

Upon hearing those words, Nick Woodfin changed his tack as smoothly as a Yankee clipper. “But of course Mr. Avery was not of sound mind at the time,” he protested. “How could he be? He was injured in body and soul by the cowardly attack on his person by Mr. Fleming in the public street of Marion. He went mad with shame and rage. His very honor was at stake.”

There was much more of this in the course of the morning. Mr. Caldwell, Mr. Bynum, and I were all called upon to add our words to that of Woodfin’s, and we all stood and said much the same: Waightstill is the kindest of men; surely he was mad with the injustice done to his honor and his person; he is very sorry for it now.

I thought, perhaps, that Judge Battle saw our plausible arguments as whitewash over the stain of our friend’s misdeed. He heard us out in grim but red-faced silence. Still, it was not for him to decide the fate of Waightstill Avery. Twelve jurors, all men of Burke County known to Waightstill at least on sight, sat in judgment of the murder case.

Woodfin gestured and shouted, waxing high on the indignity of a public thrashing, and then pitching his voice low and steady as a growl when he spoke of the festering anger that followed, and of the shame Waightstill Avery felt when friends told him that Fleming was boasting of his foul deed. What choice did he have but to cleanse his name in the blood of his tormentor?

It was a stirring speech. The theatre lost a titan when Nick Woodfin chose the law instead of the stage as his profession. I could see the jurors, watching wide-eyed as the performance rose in pitch, and I have no doubt that had he been a Plantagenet, instead of a country lawyer, Woodfin could have got them to invade France with the power of his words. He has gained much in skill and style since the days when I first knew him.

At last he judged that the jurors had heard enough. The prosecution got up again and argued that shooting a man in cold blood in the sanctity of a courtroom, in front of six dozen witnesses, was murder, by God, and what else could you call it? The state’s lawyer conceded that Waightstill Avery was rich, and well connected, and that he rejoiced in the eloquence of his friends, who stood here now to defend him, but, be that as it may, Avery had-with the arrogance of the rich-appointed himself judge and executioner upon a fellow attorney. Were the honest citizens of Burke County going to let him get away with it?

The jury retired in the early afternoon to deliberate the matter. I watched the twelve men file out of the courtroom. “I suppose we might wait in the tavern,” I remarked hopefully to my fellow attorneys, for I felt much in need of a change of air.

Mr. Bynum smiled. “Why don’t we wait half an hour so that Waightstill can join the party?”

“But surely-”

Woodfin nodded in agreement. “Unless I miss my guess, we haven’t time to leave the premises. The jury should be back within the hour.”

They were back in ten minutes. As the jurors filed in, my colleagues exchanged satisfied glances, as if the speed of the verdict were a tribute to their skills of oratory, but I was still not convinced that the verdict would be a favorable one, for I had seen the shooting take place myself, and I could not call the killing of an unarmed man “self-defense,” regardless of the provocation several weeks earlier.

“Has the jury reached a verdict?” asked Judge Battle, in a tone that suggested surprise at seeing them again so soon.

“We have, Your Honor.” The foreman handed a slip of paper to the bailiff, who conveyed it to Battle.

“The prisoner will rise.”

Waightstill got to his feet and stood there with great calmness, but I saw that he was gripping the edge of the table with both hands. Even the most confident of men must realize that a jury is a capricious creature. No one knows this better than a lawyer.

Judge Kemp Battle studied the words on the paper for an agonizing minute before he looked up and announced, “The jury finds the defendant not guilty.” He paused here, as if he wanted to say more, but instead he shook his head and sighed. “Mr. Avery, you are free to go. The jury is thanked for its time.”

The color came back into Waightstill’s face, and he released his grip on the table. Tod Caldwell pounded his old adversary on the back, shouting, “We’ve done it!” as a crowd of well-wishers surrounded the defense table. My own congratulations were left unsaid, and I think the omission went unnoticed by my nephew and his supporters.

I gathered up my notes from the trial and made my way upstream against the crowd of spectators, seeking the open air. The day was bleak and colorless, with a spitting rain and gusts of cold wind coming down off the mountains as if to sweep away every last leaf of autumn in their wake. Despite the chill and the damp, I braved the elements on the side of the courthouse lawn, out of sight of the main entrance, through which the spectators and the celebrants would be leaving. I was thinking of John Boone, dead these fifteen years, and of all the trials that had come and gone since I arrived in Morganton.

Presently I heard footsteps approaching from behind me, and I turned to see Nicholas Woodfin in his great black cape coming toward me. “We have carried the day,” he said, smiling.

“Yes,” I said.

“We are going to the tavern now, as you suggested, to celebrate the jury’s good judgment, and I’ll wager that our old friend will spend more there than his defense cost him. Walk with me.”

I shook my head. In my present mood, the brown stubble of garden beside the courthouse suited me better than the prospect of revelry in the tavern. “I will join you later,” I said.

“You are not pleased? Waightstill has a great political future. And we have saved him.”

“So we have,” I said. I turned away and left him staring after me. The dead leaves crackled under my feet, and the north wind numbed my face until I felt nothing at all.

So William Waightstill Avery went free. We had saved him-for another dozen years, anyhow-and he used them well. He served two terms in the State Senate, and fathered three more children with his wife Mary Corinna, who was the daughter of a governor. But the Bible says that he who sheddeth blood shall his own blood be shed by others. In Waightstill Avery’s case, the volley answering the death of Samuel Fleming was fired in June 1864, at a place called the Winding Stairs, where the mountains rise not twenty miles west of Morganton. There the Confederate North Carolina First Regiment troops were overtaken by Kirk’s raiders, Federals from Tennessee, and Waightstill Avery was wounded in the skirmish. He died of those wounds on July 3, 1864, and I hoped I mourned the death of a brave soldier as sincerely as anyone that day in the churchyard of our Presbyterian church.

As I stood there in the dappled sunshine of the old cemetery, paying my last respects, I thought that I stood in an ever diminishing circle of light. My dear Elizabeth had passed away, and last year we laid her sister the lionhearted Miss Mary into the earth at Belvidere. So many brave people had left this world, and I was growing old alone.