State v. Gibson

• Decision Date: 20 March 1946
• Docket Number: 3.
• Citation: 37 S.E.2d 316,226 N.C. 194
• Parties: STATE v. GIBSON et al.
• Court: North Carolina Supreme Court

37 S.E.2d 316

226 N.C. 194

STATE v. GIBSON et al.

No. 3.

Supreme Court of North Carolina

March 20, 1946

The defendants were tried upon five bills of indictment, for offenses growing out of the same or interrelated transactions and consolidated for the purpose of trial: two for assault with a deadly weapon, one for kidnapping, one for attempted burglary, and one for forcible trespass. They were convicted on the charges of attempted burglary and forcible trespass and acquitted on the others.

The evidence for the State tends to show as follows:

Mrs Marshall owned a country place in Caswell County, consisting of extensive grounds, containing the home, a nearby house occupied by the caretaker, Jake Lowndes, and his wife and daughter, and a lake upon a small stream running through the property, which extended something like half a mile from the head of the lake upstream, and a quarter of a mile downstream below the dam.

Mrs Marshall's husband was in the service of the United States, and was, at the time, Governor of Saipan under the Military, or Naval, occupation. Mrs. Marshall occupied the house at intervals, and when there Jake Lowndes and his wife stayed in the house in the servants' room, the latter as maid.

Some two weeks before the occurrences named in the indictments the defendants had formed and expressed considerable ill feeling against Jake Lowndes because the latter had set nets at the head of the lake and, as they contended, stopped the run of the fish. They came by the Lowndes home, asked him out to the feed barn and wanted to know when 'those damn fish were going to start running,' and in leaving one of them said, 'If you don't let me know when those fish start running, I'm going to raise hell.'

On the night of the alleged occurrences made the subject of the indictments, Lowndes went to a neighboring store, and the defendants, with two boys, came up. It developed that they were going fishing.

There was considerable drinking of beer and wine, and Lowndes, at the invitation of defendants, rode with them in the direction of his home, all getting out of the car when they reached the home of defendants, on the way. The defendants walked on some distance with Lowndes. On the way there was a brawl amongst them, in which one of the defendants threw Lowndes to the ground and fell upon him, using profanity toward one of the boys who sought to interfere. Lowndes found it necessary to run in the direction of his home, and pursued by the defendants, finally evaded them. Later, arriving at his home he found that his wife had gone up to Mrs. Marshall's, and followed her there.

Two boys, James Winstead and Ernest Hensley, testified that they were passing on the road, near the Marshall place, and that the defendants beset them on the way, and with profanity and at the point of guns (two shotguns) forced them to go with them first to Lowndes' house and then to the Marshall premises to call out Lowndes, whom Aubrey said they intended to kill. Henry said he had the 'trick in his hands,' referring to the shotgun.

The defendants went to Lowndes' home and searched it for him. They were told that Lowndes had gone up to Mrs. Marshall's and followed him there. Here the two boys, after having witnessed much of what took place there, managed to get behind a hedge and escaped.

James Moore, witness for the State, testified (R. p. 24): 'I know Aubrey Gibson, Henry Gibson and Jake Lowndes. I was there on the night of the 18th of March. It was on Saturday night. While I was there that night Aubrey and Henry and James Winstead and Ernest Hensley come there. James Winstead come in. James Winstead was in front and Mr. Aubrey was behind him. They did not knock before they came in. Jake's daughter was in the room with me. Two or three children were there. There was a screen door over the main door. It was closed. Aubrey had a gun with him. He didn't do anything with it when he come in the house. He said he wanted to see Jake. I told him where I thought Jake was. That he had gone up to Mrs. Marshall's house. He stayed there about three minutes, I reckon. He looked around in the other room. I heard no conversation between them. I heard them say they were going up to Mrs. Marshall's house. Mr. Aubrey said that.'

Ernest Hensley, witness for the State, testified as follows (R. p. 16): 'When we got to Mrs. Marshall's we walked up there and around to the back, and when we got around to the back door they called Jake. I don't remember which one did the calling. He answered and they told him to come out there, they wanted to speak to him a minute. He told them he was coming out and about that time Mr. Henry walked around to the back door and James broke and run. Mr. Aubrey throwed the gun on him and told him if he run he would shoot him. James stopped and come back. Mr. Henry walked to the door and was shaking the door. And Mr. Aubrey and myself was standing on the side of the house and he walked up to the well and told me to stand back and this is when I got a chance to run. The well is about 4 or 5 yards from the door. The well is almost at the door. That is the door that Henry was shaking. Mrs. Marshall had hedges planted around there and I slid behind them and got away. He was just shaking the door. I don't know what part of the house this door opens into. I have never been in it. Henry was shaking the door.'

Beatrice Lowndes, witness for the State, testified (R. pp. 17, 18) that she had gone up to the Marshall place and gone to bed.

'Jake was out, but I knew he would come up there too, because she didn't have any one to stay with her. I imagine I went to sleep and Jake come in in a little while and set down. He seemed to have mud on his shoes and he was cleaning his shoes and while he was cleaning his shoes we heard a shot and Jake says, 'Did someone shoot?' and I said, 'Sounds like it.' He got up and went out of doors. When he goes out he looks around and comes back in and goes to bed. All at once we was aroused by a loud noise coming around the house; someone was talking very loud, and saying things, and I wondered who it could be. I couldn't hear in the house and I said, 'Jake, who can that be at this time of night?' I thought, myself, it was someone who didn't know Mrs. Marshall was in. 'Well,' I says, 'maybe someone don't know Mrs. Marshall is in.' And I said I would go to the door and speak to them and tell them Mrs. Marshall was home. I opened it and someone come up to the door and I said, 'Be quiet, Mrs. Marshall's here and don't disturb her, please,' and as I said that he come and pushed it, and he says, 'I don't care about Mrs. Marshall.' I didn't know what he meant to do. It frightened me very much and I pushed the door together and fastened it. So then I rushed to let Mrs. Marshall know that someone was coming in the house, as I rushed through to the part where she was staying I met her coming. She had heard all the noise herself and was coming down. She didn't know what it was all about either, and she was putting on the lights and they departed somewhere.

'He pushed with all his force to come in and I pushed it together. I'm talking about Mr. Henry--Henry Gibson. I heard cursing around there; Mr. Henry was doing it when he came up on the step. He said, 'I don't give a damn if she is here,' and he says, 'Where is she?' He didn't say anything further, and I closed the door. He had a gun but he was pushing. I never seen the gun pointed towards the door; he had the gun to his side and was pushing the door. There is nothing that I know about this that I haven't told. I couldn't say for sure where the gun was fired; the sound of it was near the driveway, sounded like it. Mrs. Marshall had just returned from New York that morning and the children hadn't arrived. When Mrs. Marshall came down from her room she had a shotgun. She made a telephone call. We were all so nervous and frightened and we were calling so fast and we finally got connected with the Sheriff. The telephone is in the butler's pantry. There is no other phone in the house. That is the one she used. She called Sheriff Gunn.'

Jake Lowndes, a witness for the State, testified ...