Cunningham v. State
Mississippi Supreme Court
From the circuit court of Lee county: Hon. John Quitman Bobbins, Special Judge. Cunningham, the appellant, was indicted and tried for and convicted of an assault with intent to kill and murder one John Iioyle, and appealed to the supreme court. The case was this: John Hoyle, armed with a stick, was pursuing appellant with the intention of giving him a whipping. After running some distance, appellant, who had a shotgun in his hand, turned and drew it as if to shoot.
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From the circuit court of Lee county: Hon. John Quitman Bobbins, Special Judge. Cunningham, the appellant, was indicted and tried for and convicted of an assault with intent to kill and murder one John Iioyle, and appealed to the supreme court. The case was this: John Hoyle, armed with a stick, was pursuing appellant with the intention of giving him a whipping. After running some distance, appellant, who had a shotgun in his hand, turned and drew it as if to shoot. Hoyle thereupon jumped behind a wagon loaded with cotton, when appellant fired two shots and ran aivay.. The trial court gave the…
1Opinion of the CourtTruly, J.
The first instruction granted the state is fatally erroneous. It assumes as true and proven against the defendant the pivotal point of his defense — to wit, that he had shot “at Hoyle with a gun or deadly weapon.” The theory of defense relied on by the defendant was that he did not at any time shoot “at Hoyle,” but simply fired his gun in an effort to prevent the commission of an assault and battery, which Hoyle himself conf esses he was at the time endeavoring to commit, upon the defendant.
Again, the instruction is in direct conflict with the third instruction granted the appellant, which…
2Cited by6 opinions
- Peterson v. StateMississippi Supreme Court · 1970
- Hydrick v. StateMississippi Supreme Court · 1963
- Penas v. Chicago, Milwaukee & St. Paul Railway Co.Supreme Court of Minnesota · 1910
- Dickins v. StateMississippi Supreme Court · 1949
- Dixie Electric Power Ass'n v. HoseyMississippi Supreme Court · 1968
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