Ex parte Brooks

HAWKINS, Judge. — This appeal is from an order of the district judge fixing bail in the sum of $4,000. The record shows that appellant had been charged by complaint filed before W. A. Matthews, Justice of the Peace, with the robbery of Harry Owens by using and exhibiting a fire arm, and taking from Owens the sum of $262. The justice of the peace, sitting as an examining court, placed appellant’s bond at $7500. His wife had made some effort to secure bail for him in that amount, but without success. She then made application to Hon. B. W. Boyd, district Judge, for a writ of habeas [536] corpus, averring that the amount of bail fixed by the justice of the peace was unreasonable, and that appellant was unable to make bond in said amount, “or in any other large amount.” The writ was granted, and after a hearing the said district judge reduced the amount of bail to $4000. Without making any effort to secure bond for the latter sum, notice of appeal was given to this court. There should be some showing of effort to make bond in the sum fixed by the district judge; if unable to make it, a motion might then be made before the judge setting up the facts, and requesting a further reduction in the bond. See Ex parte Thompson, 92 Texas Crim. Rep., 291, 243 S. W., 910; Ex parte Atkinson, 92 Texas Crim. Rep., 296, 243 S. W., 910. We are not to be understood as intimating that bail in the sum of $4000 is excessive. The ability or lack of ability to make bond does not alone control. Ex parte Jones, 107 Texas Crim. Rep., 438, 296 S. W., 886; Ex parte Turner, 119 Texas Crim. Rep., 149, 45 S. W., 1016. The circumstances of the alleged crime and the punishment permitted are to be considered. Ex parte Nelson, 69 S. W. (2d) 126. The punishment of death may be inflicted for the offense of robbery with fire arms. Article 1408 P. C. For the reasons given the relief prayed for is denied, and the judgment fixing bail at $4000 is affirmed. Affirmed.