Spivey And Lynch v. State

• Decision Date: 28 September 1914
• Docket Number: 138
• Citation: 169 S.W. 949,114 Ark. 267
• Parties: SPIVEY AND LYNCH v. STATE
• Court: Arkansas Supreme Court

169 S.W. 949

114 Ark. 267

SPIVEY AND LYNCH v. STATE

No. 138

Supreme Court of Arkansas

September 28, 1914

Appeal from Monroe Circuit Court; Eugene Lankford, Judge; reversed.

Judgment reversed, and case remanded.

Roy D Campbell and Thomas & Lee, for appellants.

1. The testimony of the witness, Mabel Lynch to the effect that she heard the deceased talking over the telephone on Wednesday night before the killing to some person unknown to her, was incompetent and should have been excluded. 12 Cyc. 423; 3 N.Y.Crim. 483; 31 Tex. Cr. Rep. 349, 20 S.W. 753. See, also 1 R. C. L., 477, § 13; 74 P. 275; 94 Ark. 404.

2. The court erred in admitting as evidence the notes of deceased to his daughter, dated May 7 and May 9, 1913, and the two entries dated May 7 and May 9, 1913, found in the diary of the deceased after his death. The writing of a deceased person is no more admissible evidence than his unsworn declarations while living. 23 Ark. 131. The notes to the daughter are incompetent to prove the matter contained therein, because they are mere hearsay and ex parte statements. 89 Ark. 471. And neither the notes nor the entries in the diary are admissible as part of the res gestae. 43 Ark. 100; Wharton, Cr. Ev. (9 ed.), §§ 262, 263; 2 Bishop, Cr. Proc., § 625; 1 Id., § 1086; 88 Ark. 454; 85 Ark. 479; 43 Ark. 292; 48 Ark. 333; 58 Ark. 272; 9 Am. & Eng. Enc. of L. 677; 24 Cal. 640.

3. It was error to admit as evidence conversations detailed by the witness Trice as having been had with the deceased on Wednesday and Friday before the killing. The conversations were not had in the presence of the defendants, nor communicated to them, and they were clearly not a part of the res gestae. 21 Cyc. 931; 94 Ala. 9; 145 Cal. 717; 141 Ill 75; 84 Miss. 414; 163 U.S. 612; 26 Cent. Dig., tit. "Homicide;" 89 Ill. 90.

4. The court erred in permitting the clerk to read, as a part of his evidence, the pleadings in the divorce case pending between the deceased and Mrs. Lynch. The pendency of a divorce suit by the wife against the husband may be shown by parol as indicating a motive for the killing of the husband by the wife, but the record of the suit is not admissible. 57 Ind. 46; 66 Ind. 430; 13 Tex.App. 478; 1 McLain's Cr. Law, § 416; 93 Mo. 193, 6 S.W. 118; 102 Mass. 1.

The pleadings in the suit of Mrs. Lynch against deceased would not be admissible for any purpose as against the defendant Spivey. 21 Ark. 329; 14 Ark. 640; 15 Ark. 280; 17 Ark. 60.

Wm. L. Moose, Attorney General, and Jno. P. Streepey, Assistant, for appellee.

1. There is evidence in the record connecting Mrs. Lynch with the telephone conversation overheard by the witness Mabel Lynch, sufficient to make her testimony admissible on that point.

2. The facts set out in the notes and in the entries in deceased's diary were proved by other evidence in the case; hence their introduction as evidence, if erroneous, was not prejudicial. 108 Ark. 191. But it was not error to admit them in evidence. Declarations of the deceased person in a homicide showing that he was about to set out for the place where he was slain, have long been held to be admissible as explanatory of his purposes in going to the particular place. 96 Ala. 24; 90 Ala. 523; 27 Ala. 1; 13 Tenn. 259.

3. The testimony of witness Trice relative to what deceased told him was admissible for the same reason that the notes and diary entries were admissible.

4. The pleadings in the divorce case were admissible to show the motive impelling the appellant Mrs. Lynch to commit the crime.

OPINION

HART, J.

The defendants, Robert Spivey and Lillie D. Lynch, were indicted for the crime of murder in the first degree, charged to have been committed by Robert Spivey shooting R. C. Lynch while Lillie D. Lynch was present aiding and abetting him. The defendants were tried before a jury and convicted of murder in the second degree, their punishment being fixed at five years in the State penitentiary. From the judgment of conviction, they have duly prosecuted an appeal to this court.

The facts, so far as are necessary for a determination of the assignments of error presented, briefly stated, are as follows:

Robert C. Lynch was shot by Robert Spivey, between 10:30 and 11 o'clock p. m., on the 9th day of May, 1913, just after he entered the home of Lillie D. Lynch, in Monroe County, and was instantly killed. At the time he was the husband of Lillie D. Lynch and Robert Spivey was his stepson. Robert C. Lynch had been formerly married, and by his first wife had reared a family of girl children, all of whom were grown at the time he was killed. He separated from his first wife, and she brought suit for divorce against him. During the pendency of the suit, he boarded with the defendant Lillie D. Lynch, who was then Lillie D. Spivey. His first wife was granted a decree of divorce, and about twenty days thereafter he married Lillie D. Spivey and they moved to her farm in Monroe County, Arkansas, where they resided for about two years until their separation in the month of September, 1912. During their residence on the farm of the defendant Mrs. Lynch, Robert C. Lynch managed it. In October, 1912, the defendant Lillie D. Lynch instituted a suit for divorce against him, and also sought the recovery of certain property which she alleged Robert C. Lynch had taken from her farm and disposed of for his own use and benefit. This suit was pending at the time Robert C. Lynch was killed. During the pendency of the suit, Robert C. Lynch visited the defendant Lillie D. Lynch at her home. According to witnesses for the State, he visited her at least once a week, and their relations were friendly. According to the testimony of the defendants, he did not visit her more than once or twice a month, and during these visits they had quarrels about the division of the property, and their relations were confined to a discussion of their property affairs. Mrs. Lynch occupied as a bedroom one of the front rooms of the house, and her son, Robert E. Spivey, who was about thirty-five years of age, slept in the room immediately back of her bed-room. On the night Robert C. Lynch was killed, he entered the house through a window in the room across the hall from the bedroom of Mrs. Lynch, between 10:30 and 11 o'clock p. m. Just after he entered the room, he was shot and killed by Robert E. Spivey. Mrs. Lillie D. Lynch was present.

At the time Robert C. Lynch was killed he had on an overcoat, which was buttoned up. In a pocket of the overcoat was a linen mask to which strings were attached. In another pocket was found an electric searchlight. Near the feet of deceased's body was found a .38 calibre pistol, cocked and on safety, the magazine filled with cartridges, and one of the cartridges in the barrel of the pistol. A large dirk was stuck down in the waist band of his trousers and supported by his suspenders. He had on a suit of winter underclothes, no top shirt or coat, and a pair of low-quarter shoes, over which were worn a pair of high top arctic overshoes.

The southwest window and screen of the room in which he was killed had been raised. The deceased's body was found lying crumpled up, face downward, near the raised window. His hand was partly under his body. A load of buckshot had entered his right breast just below the nipple, in a space three and one-half or four inches in circumference.

The theory of the State was that the defendant Lillie D. Lynch had an understanding with her son, Robert E. Spivey, that she would invite the deceased to her home on the night of the killing, that the deceased should enter the southwest window of the west room, and that upon his entering the room, defendant Spivey should shoot the deceased with his shotgun, that it might appear that the deceased had been killed by Spivey in the defense of their home. Evidence was adduced by the State to support this theory.

The theory of the defense was that the deceased came to the home of defendant without the knowledge of either of them, and for the purpose of obtaining certain papers which the defendant Lillie D. Lynch had in her possession, and which pertained to the litigation between them, and that the defendant Robert E. Spivey shot him in the defense of their home, not knowing who he was nor for what purpose he had entered the house. Robert E. Spivey testified, in brief, that he was living with his mother at the time the deceased was killed; that the deceased had not been in the habit of visiting his mother at night since her separation from him; that on the night of the killing, his mother came into his room where he was sleeping, and told him to get up, that some one was breaking into the house; that he asked her where, and she told him in the west front room; that he got up, got his gun, and went out into the hall to the front room door; that he saw the bulk of something that looked like a man over near the window; that he fired two shots at him with his shotgun, and then ran out into the yard and rang a bell to alarm the neighbors; and that he did not know who it was who had entered the room, and had no suspicion whatever that it was the deceased, and no knowledge whatever that the deceased contemplated coming to the house that night.

The deceased was killed on Friday night, May 9, 1913. At the time of his death, he resided in Cotton Plant and lived in an office just in the rear of the home occupied by his former wife and daughters. On Wednesday prior to the killing, the deceased wrote a note to his daughter Mabel, which is as follows:

"May 7, 1913.

"Wednesday evening, 8 o'clock p. m.

"Am going to Saulsberg. Lillie has promised me this evening while there, if I would come back at 10 o'clock tonight she would raise the west parlor window and let me in. I could...