
    Ex parte BICE.
    (No. 10667.)
    
    (Court of Criminal Appeals of Texas.
    Dec. 8, 1926.)
    1. Habeas corpus <&wkey;33 — One accused of felony, who thinks bail excessive, should resort to habeas corpus (Code Cr. Proc. 1925, art. 136).
    One accused of felony, who thinks bail excessive, should resort to writ of habeas corpus, rather than appeal,, and, if on hearing of writ his relief be denied, he may then appeal to Court of Criminal Appeals, in view of Code Cr. Proc. 1925, art. 136.
    2. Bail <&wkey;49 — In fixing bail, proof should be taken as to nature and circumstances of offense, and accused’s ability to make bond (Code Cr. Proc. 1925, art. 281).
    In fixing bail, proof should be taken as to nature of offense, circumstances under which it was committed, and ability of accused to make bond, in view of Code Cr. Proc. 1925, art. 281.
    3. Bail <&wkey;52 — $15,000 bail held not excessive for one accused of murder.
    $15,000 bail held not excessive for one accused of murder, where facts surrounding homicide made strong case again'st him.
    4. Bail <&wkey;52 — Fixing bail at $15,000 in murder case held not abuse of discretion.
    Fixing bail at $15,000 for one accused of murder' held not abuse of discretion, though justice of peace had fixed amount at $1,200, in view of evidence as to accused’s ability to make such bond.
    Henry Bice was accused of murder, and, from an order of the district court raising the amount of his bail, he appeals. He also attacks the bail as excessive by an original application for a writ of habeas corpus.
    Belief denied, and relator remanded to the custody of the sheriff.
    Scott Gaines and A. E. Masterson, both of Angleton, for relator.
    Sam D. Stinson, State’s Atty, of Austin, and Bobt. M. Lyles, Asst. State’s Atty., of Groesbeck, for the State.
    
      
      For opinion on motion for rehearing, see 289 S. W. 1120.
    
   LATTIMOBE, J.

Belator was arrested upon a complaint charging him with murder, and was granted bail by a justice of the peace in the sum of $1,200. There is nothing in the record by which we can determine whether evidence was heard by the justice. Subsequently an affidavit was made before the district judge having jurisdiction, said affidavit being made under authority of article 260, 1925 G. G. P., which set up that the bail fixed by the justice of the peace was insufficient in amount, and on- the hearing by said district court the bail of relator was raised and fixed at $15,000. Appeal was taken to this court from said order, the legality of which appeal is now attacked.

As far as we know, it has never been held that a direct appeal can be taken from an order of any court, made without the intervention of a writ of habeas corpus, fixing bail in a felony case. The rule seems to be that one who thinks his bail excessive should resort to his . writ of habeas corpus sought upon proper averment, and, if upon hearing thereof his relief be denied, he may then appeal to this court. Article 136, 1925 C. C. P.; Ex parte Meador, 93 Tex. Cr. R. 450, 248 S. W. 348; Hernandez v. State, 4 Tex. App. 425.

However, an original application for a writ of habeas corpus has been filed in this court on behalf of this relato?, • alleging that the bail fixed was excessive, and an agreement has been reached between relator and the state to the effect that the statement of facts heard by the honorable district court of Brazoria county, upon the hearing of the affidavit alleging insufficient bail, which is on file in this court at this time, may be held and considered as if filed with said application for the writ of habeas corpus, and same will be by us so considered in connection with said application.

The facts surrounding the homicide, as shown by the state witnesses, make a strong case against relator as such as might, in the first instance, have justified the fixing of the bail at the amount named by the district court. The record reflects no effort on the part of relator to make the bail fixed, and seems also devoid of testimony as to the financial condition of relator.

Article 281, 1925 C. C. P., lays down rules to govern the fixing of the amount of bail. Among other things, the nature of the offense and the circumstances, under which it was committed, as well as the ability of the accused to make bond, are to be considered, and proof should be made on these points. In addition to the testimony showing the nature and character of the offense herein, two witnesses gave testimony relative to relator’s ability to make the bail required. Both said witnesses were sureties on the $1,-200 bond of relator. Dr. Hamphill swore that, in his opinion, relator could make a bond of from $3,000 to $5,000 and no more; that he would not sign the bond of relator if it was fixed at $10,000, but would if' it was fixed at $5,000. Mr. Ducroz said he did not think relator could make bond for over $5,-OUo. Be-examined, Ducroz said that Dr. Hamphill had a thousand-acre farm, beside a lot of other property; that witness had 3,000 acres of land, 450 head of cattle, and other property. f No showing was made as to the other two men who were sureties on the original bond, nor as to other friends or resources to whom or to which relator might look, as enabling him to make the bond fixed' by the court.

Substantially a similar case appears in Ex parte McDaniel, 96 Tex. Cr. R. 539, 258 S. W. 1057, the opinion in which cites cases where the reduction of bail whs sought without a showing made of an effort to make the bail required. We see no reason to vary from the conclusion reached by us in said cases.

We are not of opinion that the bail fixed is excessive, viewed only in the light of the case against relator made by the state, nor are we led to believe that, on the showing made as to his ability to make said bond, there was any abuse of the discretion of the district judge in fixing it at said amount. If upon a reasonable showing of his inability to make the bond required, based upon other reasons than the mere conclusions in advance of some of his friends that he could not make same, it would appear to us that relator would be in a better attitude to ask for a reduction of bail.

The relief sought will be denied, and relator will be remanded to the custody of the sheriff. 
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