
    Ex parte BRILLINGER.
    (No. 9899.)
    (Court of Criminal Appeals of Texas.
    Nov. 25, 1925.)
    1. Bail @=353 — Court’s refusal to preclude district attorney from interrogating accused as to' facts not error.
    Upon application to reduce bail, where counsel for accused tendered Mm as witness upon point of his ability to make bond on education that court instruct district attorney not to. interrogate with reference to facts of cases, refusal of court to do so held) not error, in view of Code Cr. Proc. 1925, art. 281, subd. 3.
    2. Bail <§=>52 — $6,000 excessive in prosecution for possession of liquor for sale.
    In prosecution for possession of intoxicating liquor for sale, where accused forfeited $1,-OOO bail bond and was rearrested, bail set at $6,000 held excessive, and reduced to $4,000, in view of Code Cr. Proc. 1925, art. 281, subds. 1, 2.
    3. Bail <§=>52 — $6,000 excessive in case for assault to murder.
    In prosecution for assault to murder, where record showed that accused, while transporting liquor, was stopped by officers and drew , gun, but did not shoot, although he co'uld have done so before he was disarmed, $6,000 bail held excessive, and should be reduced to $1,000, in view of Code Cr. Proc. 1925, art. 281, subds. 1, 2.
    Appeal from District Court, Falls County; Prentice Oltorf, Judge.
    Warren Brillinger was charged with possession of intoxicating liquor for sale and as-sult with intent to murder, and from an order fixing bail he appeals.
    Reversed, and bail fixed.
    Ben H. Rice, Jr., and Bartlett & Dodson, all of Marlin, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Nat Gentry, Jr., Asst. State’s Atty.,' of Tyler, <for the State.
   HAWKINS, J.

This is an appeal from an order of the judge of the Eighty-Second Judicial District fixing appellant’s, bail in two prosecutions pending in Falls county.

The record discloses that about March 3, 1923, C. O. Moore, sheriff of Falls county, together with other officers, intercepted appellant and a companion traveling upon the public road in an automobile, in which was found about 100 quarts of intoxicating liquor. When appellant was told by the sheriff that he intended to search the car, appellant drew a pistol and presented it at Moore, telling him to stop, but did not fire on the sheriff. Other officers drew their pistols and disarmed appellant. The evidence shows that appellant could have fired on Moore had he desired to do so before Moore or the other officers present could have prevented it. At the March term, 1923, of the district court, an indictment was returned against appellant charging him in one count with the possession of intoxicating liquor for the purpose of sale, and in another with “transportation” of tfie liquor. His bond upon this charge was fixed at $1,000, which he made. When this case was called for trial on May 17, 1923, appellant’s bond was forfeited, and an alias capias ordered for his arrest. A few days before the forfeiture of the bond an indictment was returned by the grand jury for the May term, 1923, of the same court charging appellant with an assault with intent to murder Moore, based upon the transaction heretofore stated. We find from the court’s docket entries in the record that on October 21, 1924, there was another order of. forfeiture and judgment nisi on a $1,000 bond in the whisky case. This bond has the same sureties as those mentioned in the prior forfeiture in May, 1923. If the forfeiture first taken was set aside, the docket entry fails to show it. However, only one bond in the whisky case appears in the record, and that is the $1,000 bond executed on March 5, 1923. We understand from the record that appellant’s bond in the whisky case was set at $10,000 after the forfeiture on his $1,000 bond had been ordered. Appellant was rearrested in Florida and brought back to Falls county for trial. No bond seems ever to have been fixed in the assault to murder case until lie was rearrested upon the whisky transaction, and the bond in the assault to murder case was then fixed at $6,000.

Upon hearing the application to reduce bail, the learned trial judge reduced the bond in the whisky ease from $10,000 to $6,-000, and permitted bail in the assault to murder case to remain at $6,000. There is no evidence in the record touching appellant’s ability to make bond. His attorney tendered him as a witness upon this point upon condition that the court instruct the district attorney not to interrogate him with reference to the facts of the cases. This the court declined to do. Subdivision 3 of article 281, C. C. P. 1925, provides that in fixing bail the nature of the offense and the circumstances under which it was committed are to be considered. We think the court not in error in declining to deny the district attorney the right to make proper inquiry under the statute just referred to.

Subdivision 1 of article 281 provides that the bail shall be sufficiently high to give reasonable assurance that the undertaking will be complied with, and subdivision 2 that the power to require bail is not to be so used as to make it an instrument of oppression. There is nothing in the record in the way of excuse or explanation why appellant had not responded to his bond in the sum of $1,000 to answer the accusation of illegally transporting intoxicating liquor, therefore the court was justified in increasing bail upon that charge. We are inclined to the view, however, that the $6,000 fixed by the court is excessive. Upon the charge for assault with intent to murder, having re>gard to the circumstances and facts under which it is claimed to have occurred, we think the court not justified in fixing bail at $6,000. The judgment of the court fixing bail in "the sums mentioned is reversed, and bail on the charge against appellant for possessing and transporting intoxicating liquor is fixed at $4,000, and in the assault to murder ease is fixed at $1,000. 
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