
    Ex parte COLSTON.
    (No. 10618.)
    (Court of Criminal Appeals of Texas.
    Nov. 10, 1926.)
    Bail <&wkey;53 — Facts held to warrant reduction of bail pending appeal from conviction for rape, assessing punishment at 5 years in penitentiary, from $5,000 to $3,000 (Const, art. I, §§ II, 13; Code Cr. Proc. 1925, arts. 281, 815).
    Under Const, art. 1, §§ 11, 13, Code Cr. Proc. 1925, arts. 281, 815, facts held to warrant reduction of bail pending appeal from conviction for rape, punishment being assessed at 5 years in penitentiary, from $5,000 to $3,000.
    Appeal from District Court, Nacogdoches County; C. A. Hodges, Judge.
    Habeas corpus by Joe Colston. From an order denying reduction of bail after conviction for rape, relator appeals.
    Order refusing to reduce bail set aside, and bail reduced.
    R. A. McAlister, of Nacogdoches, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Robt. M. Lyles, Asst. State’s Atty., of Groesbeck, for the State.
   MORROW, P. J.

This is an appeal from an order of the district judge on a habeas corpus proceeding in which the reduction of bail was sought. Relator was convicted of the offense of rape, and his punishment was fixed at confinement in the. penitentiary for a period of 5 years. The Amount of bail pending the appeal was fixed at $5,000. Evidence was heard] from which it appears, without conflict, that the relator was without financial resources, and that the financial conditions of his friends and relatives were such that they would not be able to qualify as sureties upon a bond of so large an amount; that his efforts to give the bail required have been unsuccessful.

Under the Constitution of Texas, all cases' are bailable, except capital cases in which the proof is evident. See article 1, § 11. Excessive bail is forbidden by the Constitution. See article 1, § 13. Under article 813, C. C. P. 1925, bail is allowed on appeal in felony eases in which the penalty assessed is 15 years and under. The relator was originally charged with a capital offense, but the verdict of the jury, so far as it relates to the present matter under consideration, takes it out of the classification of capital cases in which the proof is evident, and brings it within the purview of article 1, § 11, of the Constitution; also articles 815 and 281, C. O. P. 1925. In the latter article, we find the following:

“The amount of bail to be required in any ease is to be regulated by the court, judge, magistrate or officer taking the bail; they are to be governed in the exercise.of this discretion by the Constitution and by the following rules:
“(1) The bail shall be sufficiently high to give reasonable assurance that the undertaking will be complied with.
“(21) The power to require bail is not to be so used as to make it an instrument of oppression.
“(3) The nature of the offense and the circumstances under which it was committed are to be considered.
“(4) The ability to make bail is to be regarded, and proof may be taken upon this point.”

The instances in which this court have considered the matter seem to have been those in which the complaints were of the amount of bail pending trial. The applicable principles, however, would, we think, be the same in cases of complaints of bail pending the appeal. Applying these rules to the facts of the present record, we express the opinion that the facts warrant a reduction of bail. Many illustrative cases will be found in Vernon’s Tex. C. C. P. 1925, p. 208. Among them are Ex parte Wolf, 91 Tex. Cr. R. 625, 240 S. W. 310; Ex parte McDaniel, 96 Tex. Cr. R. 539, 258 S. W. 1057; Ex parte Martin, 71 Tex. Cr. R. 383, 159 S. W. 1182; Ex parte Castillo, 102 Tex. Cr. R. 52, 277 S. W. 126.

Tlie order of tlie trial court refusing to reduce the bail is therefore set aside, and bail is reduced to the sum of $3,000. 
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