
    CAIN v. STATE.
    (Court of Criminal Appeals of Texas.
    June 7, 1911.
    Rehearing Denied June 23, 1911.)
    Hom-icide (§ 308) — Murder—Instructions— Degree of Offense.
    Deceased, after having retired for the night, was awakened by some one hallooing at the gate, and on arising was informed that he was wanted at the long-distance phone about a mile and a half from his residence. Deceased prepared to go, and as he went into the yard was fired on and killed. Defendant admitted the killing, but testified that he was forced to do so by H., who was with him,' because of certain prosecutions which deceased had instituted, or was about to institute, against H. and accused. Held insufficient to require a charge on murder in the second degree.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 642-648; Dec. 'Dig. § 308.]
    Appeal from District Court, Walker County; S. W. Dean, Judge.
    John Cain was convicted of murder, and he appeals.
    Affirmed.
    A. T. McKinney, for appellant.
    C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   DAVIDSON, P. J.

Appellant was convicted of murder in the first degree, and the jury allotted him the death penalty. The killing occurred at night. The deceased, J. J. Hardy, had retired with his wife and children, when some one hallooed at the gate. The deceased arose, inquired what was the matter, and was informed by the party out in the dark that he was wanted by the long-distance phone at New Waverly, which was about a mile and a half east of the residence of deceased. Thinking it was a negro named Anthony, he asked him if his horse was in the lot. The deceased prepared himself to go to New Waverly, and went out in the yard, and as he approached his horse lot he was fired upon and killed.

Appellant admitted the killing, and, in addition, took the stand and testified to the fact that he did the killing. He claimed, however, that he was forced to do so by another negro, who was with him, by the name of William Hargrove. It is deemed unnecessary to go into a detailed statement of ap.pellant’s testimony, or the facts which show guilt; but it may be mentioned, among those . things, that appellant says that Hargrove approached him and induced him to kill, or assist in killing, deceased, giving as a reason that deceased was going to send appellant to the penitentiary for forging an order, and that deceased was going to prosecute Har-grove for the theft of cotton, and, in fact, had instituted a prosecution against Har-grove. Mrs. Hardy testified to the effect that appellant had forged an order, and deceased had contemplated bringing him before the courts. Appellant says that Har-grove offered him $10 to get a gun for him. Appellant finally agreed to do this, and did get the gun, and went with Hargrove. Pie further says Hargrove agreed to pay him $30 for assisting in the killing. He claims that he did not want to kill deceased, but Har-grove made him go with him to do the killing.

The court’s charge was only with reference to murder in the first degree and the law applicable to duress. Appellant in his motion for new trial — and that is practically the only question in the case — insisted that the court erred in not giving in charge to the jury the law applicable to murder in the second degree. We are of opinion this contention, under the facts, is not well taken. The homicide was a cruel, cold-blooded assassination. There is nothing in the record that we have been able to discover that called for or demanded a charge on the law applicable to murder in the second degree. We understand the rule to be that where the circumstances are clear, unequivocal, and strong, and without doubt as to express malice, it is unnecessary to charge on the law applicable to murder in the second degree; but if there be a doubt with reference to the environments of the case and attendant circumstances, and the jury might, under any phase of the evidence, conclude that it was murder in the second degree, the charge should be given. But that does not apply to a case like the one before us. The jury did not see proper to credit appellant’s theory of duress, and in this they were entirely justified.

Believing there is no ■ reversible error in this record, the judgment is affirmed.  