
    Ex parte TRICE.
    (No. 11217.)
    Court of Criminal Appeals of Texas.
    Oct. 12, 1927.
    1. Bail &wkey;>51 — Accused's ability to make bond may be considered in determining amount of bail (Code Cr. Proc. 1925, art. 281).
    Though, under Code Cr. Proc. 1925, art. 281, accused’s ability or lack thereof to make bond cannot alone control, it may be regarded in determining amount of bail, and proof may be heard thereon.
    2. Bail &wkey;>52 — $1,000 bail reduced to $500 in theft prosecution, where accused has no property and has been unable te furnish bond.
    Bail of $1,000 for accused, charged with theft of property over value of $50, held excessive, in view of showing that accused has no property and has been unable to furnish bond, and is reduced to $500.
    Commissioners’ Decision.
    Appeal from District Court, Stephens County; O. O. Hamlin, Judge.
    Habeas corpus by W. R. Trice to obtain reduction of bail. From an order refusing to reduce bail, petitioner appeals.
    Reversed, and bail reduced.
    S. J. Osborne, of Breckenridge, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, for the' State.
   CHRISTIAN, J.

Appellant is under indictment in tbe district court of Stephens county, wherein he is charged with theft of property over the value of $50. The court required of appellant a bond in the sum of $1,000, and onñpplication for a writ of habeas corpus, wherein it was alleged that the amount of the bail was excessive and that appellant was unable to furnish bond in tbe amount of $1,000, evidefice was heard and the application for a reduction of the amount of bail was overruled. This is an appeal from the order of the court.

The record shows that appellant has no property and that he has been unable, after effort made, to furnish the bond required of him. While appellant’s ability or lack thereof to make bond cannot alone control, it may be regarded in determining the amount of bail, and proof beard tbereon. Article 281, C. C. P.; Ex parte Jones (Tex. Cr. App.) 296 S. W. 886. In overruling appellant’s application, the court states in Ms order that the bond required of appellant was in the usual and customary amount fixed by the court in ordinary felony cases. No arbitrary rule for fixing bail can be reconciled with the provisions of article 281, O. O. P., which provides that bail shall be sufficiently high to give reasonable assurance that the undertaking will be complied with; that the power to require bail is not to be so used as to make it an instrument of oppression; that the nature of the offense and the circumstances under which it was committed are to be considered; and that the ability to make bail is to be regarded, and that proof may be taken on this point. Applying these rules to the instant case, we are of the opinion that, under the record, the amount of bail should, be reduced to $500. See Ex parte Castillo, 102 Tex. Cr. R. 52, 277 S. W. 126.

The judgment of the trial court is reversed, and bail fixed in the sum of $500.

PEE CURIAM. The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals, and approved by the court. 
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