Spivey v. State
| Decision Date | 28 September 1914 |
| Docket Number | (No. 138.) |
| Citation | 169 S.W. 949 |
| Parties | SPIVEY et al. v. STATE. |
| Court | Arkansas Supreme Court |
Appeal from Circuit Court, Monroe County; Eugene Lankford, Judge.
Robert Spivey and Lillie D. Lynch were convicted of murder in the second degree, and they appeal. Reversed, and remanded for new trial.
Roy D. Campbell, of Cotton Plant, and Thomas & Lee, of Clarendon, for appellants. Wm. L. Moose, Atty. Gen., and John P. Streepey, Asst. Atty. Gen., for the State.
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 each 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 20 days thereafter he married Lillie D. Spivey and they moved to her farm in Monroe county, Ark., 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 35 years of age, slept in the room immediately back of her bedroom. 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 caliber 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 3½ or 4 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 the 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 the 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 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:
Written on the back is the following note:
"I left this on my desk for Mabel, but, as I
did not go, went with Mabel to the picture
show. R. C. Lynch."
The deceased did not go to see the defendant Lillie D. Lynch that evening, but instead went with his daughter to a picture show. The evidence for the state shows that Mrs. Lynch telephoned him on that evening not to come, but to defer his visit until a later time to be fixed by her. The note which the deceased wrote to his daughter was not delivered to her, but was left in his desk, where she found it on the morning after he was killed. On the night he was killed he wrote his daughter another note, which he left in his desk, and which she found there on the morning after he was killed. That note reads as follows:
It appears, also, that the deceased kept a diary, which was found in his desk by his daughter after his death. An entry in his diary of the date of May 7, 1913, reads as follows:
It also appears that an entry was made in his diary of the date of May 9, 1913, on which day the deceased visited the defendant Lillie D. Lynch at her home, and the entry in the diary purports to be a statement of what...
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