Opinion
No. 3828.
Decided October 27, 1915.
Habeas Corpus — Bail — Ability to Give Bail.
Where, upon habeas corpus proceedings, the relator simply gave notice of appeal, and there was no evidence in the record showing that he made an attempt to give the bond, the judgment of the lower court must be affirmed, if it should be made to appear before the trial judge that bail should be reduced, he will no doubt reduce the amount of bail, if advisable.
Appeal from the Criminal District Court of Harris. Tried below before the Hon. C.W. Robinson.
Appeal from habeas corpus proceeding denying bail.
The opinion states the case.
Heidingsfelders, for appellant. — Cited Firmin v. State, 60 Tex. Crim. 222, 131 S.W. Rep., 1113. C.C. McDonald, Assistant Attorney General, for the State.
Applicant was indicted for murder. The facts attending the homicide are not made a part of the record, and in fact the record shows the testimony was not introduced. The record shows the indictment, process and return of the sheriff were introduced and such documentary evidence as pertained to the cause after arrest. The judgment of the court refusing bail follows this. Applicant produced evidence with reference to his ability to give bail, putting the maximum that he could give at one thousand dollars. There is no evidence showing that he made an attempt to give this amount of bond, and failed. The record shows that upon placing the bond at five thousand dollars he gave notice of appeal. As the matter stands, we are of opinion that the court would not be justified in setting aside this order of the court. If the party had not been able to give the bond, after making due and appropriate attempts, we would have a different question presented, but this is not here made to appear. In fact, it rather appears that he made no attempt by reason of the fact that upon the entering of the judgment placing the bail at five thousand dollars he gave notice of appeal. We suppose the theory of this appeal is that five thousand dollars under the circumstances is too large. We can not, in the state of the record, so hold. It may be that if after due effort is made to give bail in the amount fixed he fails, the trial judge should look into the matter, and if thought advisable reduce the bail. As the record is presented, the judgment will be affirmed.
Affirmed.