Rutherford v. State
| Decision Date | 15 January 1912 |
| Citation | 57 So. 224,100 Miss. 832 |
| Court | Mississippi Supreme Court |
| Parties | ALVIE RUTHERFORD v. STATE |
October 1911
APPEAL from the circuit court of Tippah county. HON. W. A. ROANE Judge.
Alvie Rutherford was convicted of murder and appeals.
Appellant assigns as error the granting of instruction No. 1, for the state, which is as follows: "The court charges the jury for the state, that murder is the killing of a human being by any means or in any manner, when done with the deliberate design to effect the death of the person killed; and, if the jury believe from the evidence in this case, beyond a reasonable doubt, that the defendant so killed deceased, then the jury, under their oaths, should find the defendant guilty, as charged."
Judgment reversed and remanded.
Spight & Street, for appellant.
The first instruction given for the state is evidently based upon the statute defining murder, and practically denies the defendant, not only self-defense, but eliminates any possibility of conviction of manslaughter alone. It tells the jury, in effect, that if the defendant killed the deceased with the deliberate design to do so then they must convict him of murder. If the jury fully considered this charge and gave to it the force which its language entitles it, then there was nothing for them to do but return a verdict of guilty as charged. Every killing in pure self-defense is done with the deliberate design to effect the death of the person killed, and yet this instruction tells the jury that this is murder. It is impossible to say that this instruction did not control the jury in reaching their verdict. Coming with the sanction of the court and read with the unction of the district attorney as the law of the land it it easily understood that when the jury read it they were prepared to say "this settles it."
In Strickland v. State, 81 Miss. 134, (32 So. 921), Justice Terrill, in delivering the opinion of the court, says:
"Whenever the life of a human being is in the balance, it is but just to him that the law governing the case made against him should be properly stated to the jury." . . . In Ivy v. State, 84 Miss. 264, (36 So. 265), identically the same instruction was passed upon, and C. J. Whitfield held that it was error, in the following language: "The first instruction for the state ought to have contained the words 'without authority of law,' since it was manifestly drawn under the statute....
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Butler v. State
...and killing was done "without authority of law" is erroneous. Motley v. State, 165 So. 296; Earl v. State, 151 So. 172; Rutherford v. State, 57 So. 225, 100 Miss. 832; v. State, 36 So. 265. The appellant contends and avers that instruction No. 5 is erroneous in three particulars, to-wit: Fi......
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Pruitt v. State
...the jury should use the words "there employed." 14 R. C. L. page 722, sec. 29; Ivey v. State, 84 Miss. 264, 36 So. 265; Rutherford v. State, 100 Miss. 832. fact that the defendant was or was not the father of the purported mulatto baby did not have any bearing on this case, and the parentag......
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Prine v. State
... ... No. 3 assumes malice aforethought. No. 4 tells the jury that ... if he acted without malice he was guilty of manslaughter. One ... or both of these instructions should have correctly defined ... murder and manslaughter, which they failed to do ... Rutherford ... v. State, 100 Miss. 832, 57 So. 224; Ivy v. State, ... 84 Miss. 264, 36 So. 265; Bang v. State, 60 Miss ... 571; Fore v. State, 75 Miss. 727; 30 C. J. 368; ... Gamblin v. State, 29 So. 267; Brett v ... State, 94 Miss. 669, 47 So. 781; Jackson v ... State, 79 Miss. 42, 30 So. 39; Motley ... ...
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Boyles v. State
...2215 (1956); Motley v. State, 174 Miss. 568, 165 So. 296 (1936); Hays v. State, 130 Miss. 381, 94 So. 212 (1922); and Rutherford v. State, 100 Miss. 832, 57 So. 224 (1912). The second part of this instruction is also defective because it does not incorporate the essential elements required ......