A Delaware County father accused of killing his 13-year-old son has been charged with first degree murder, according to information released late Tuesday, April 10 by District Attorney Kenny Wright.

Tony Wayne Rutherford, who is free on $100,000 bail, is set to return to court on Wednesday, April 11. 

Rutherford was taken into custody on Saturday, April 7, on a murder complaint in connection with the shooting, involving his son, Kyle Anthony McDowell Rutherford.

In documents filed with the Delaware County Court, on Tuesday, Wright said Rutherford “unlawfully and with malice aforethought” caused the death of Kyle Anthony McDowell Rutherford “with a firearm and inflicting mortal wounds” from which Kyle Anthony McDowell Rutherford died.

Wright said Rutherford's alleged actions at the time of the incident  show that he "intended to kill whoever was driving the truck."

"That it turned out to be his son, is just tragic," Wright said. "But it doesn't make it any less of a crime."

About the charges

According to the probable cause affidavit filed by Dale Fine an investigator with the Oklahoma State Bureau of Investigations, the incident took place at approximately 1:43 a.m., near Rutherford’s home on East 420 Road, Jay. 

Initially, Fine's affidavit states, Misty McDowell reported her husband, had accidentally shot her son in the head with an AR-15 while he was trying to sneak out of the house.

McDowell told dispatchers Rutherford thought her juvenile son was a burglar.

Fine's affidavit states when law enforcement officials arrived on the scene, they discovered the shooting had taken place in a roadway, approximately one mile from the family’s residence on 420 Road.

Fine stated officers found McDowell and Rutherford attempting to perform CPR on Kyle Anthony McDowell Rutherford outside a grey Dodge pickup truck. The truck appeared to have crashed through a fence into a field and was blocked by another vehicle, a 2010 Ford F-250. 

Fine said when officers made contact with Rutherford, he refused to speak to them, requesting an attorney be present before questioning. 

The investigation, Fine said, developed information that Rutherford was driving the F-250 chasing the Dodge pickup being driven by an unknown driver. During the chase Rutherford was allegedly firing at the Dodge with a firearm.

Fine said Rutherford later determined Kyle Anthony McDowell Rutherford was driving the the other vehicle. The 13-year-old was pronounced dead at the scene.

Rutherford was taken into custody and booked into the Delaware County Jail on a murder complaint. 

Since the incident, Rutherford has hired Winston Connor II, as his attorney.

“Tony and his family are very sorry by the loss of their child and time will reveal the circumstances surrounding this unfortunate incident which does not constitute a crime,” said Connor, prior to the formal charges being filed.

Sheila Stogsdill contributed to this report.