This petition is properly before this court. Sections 3241 and 3368, Code 1923.
It is ascertained by the petition, the allegations of facts therein being sworn to and undisputed, that petitioner has been convicted of a felony, and his punishment fixed at ten years' imprisonment in the penitentiary; that from the judgment of conviction an appeal was taken to this court under the provisions of section 3241, Code of Alabama; that the execution of said judgment was suspended pending the appeal; and that the judge fixed the amount of the appeal bond at $15,000.
Petitioner avers that the amount of bail so fixed is excessive and in violation of section 16 of the Constitution of Alabama 1901, wherein it is provided: "Excessive bail shall not in any case be required."
In this connection the verified petition shows that petitioner is wholly unable to make the bond required, and paragraphs 4, 5, and 6 of the petition state as follows:
"4. Petitioner further shows that his pecuniary condition is such that he is unable to execute bond in the sum fixed as aforesaid; that he has not sufficient means and property to execute said bond; that he has no friends who will execute bond for him in said sum. But, petitioner says that he can execute bond in the sum of about $2,000.00; that his relatives and friends have means to secure bond for about this sum, but not for a sum much greater.
"5. Petitioner further shows unto your Honor that on account of the amount of bond originally fixed he is virtually denied the right of bail pending his said appeal; and that at the time said bond was fixed, the trial judge did not take into consideration his pecuniary condition; and neither did he take into consideration petitioner's ability to execute such an exorbitant bond.
"6. Petitioner further shows unto your Honor that his mother owns a home and property which is of sufficient value to pledge security for bond in a reasonable sum, which will be pledged if your Honor will make and enter an order reducing the amount of the original bond from $15,000.00 to about $2,000.00; but petitioner cannot execute bond in a sum much greater; that bond fixed in a sum much greater is excessive, unreasonable and unauthorized and is direct conflict with section 16 of the Constitution of the State of Alabama."
The constitutional provision to the effect that "excessive bail shall not in any case be required" applies to all cases where bail is allowable, not merely to cases before conviction, as stated by SAMFORD, J., in the majority opinion; and this humane provision of the fundamental law is not rendered nugatory by the fact that the petitioner has been tried and convicted of felony and is under suspended sentence therefor. As stated hereinabove, he had the right of appeal and availed himself of this statutory right. His case is therefore in fieri and not concluded.
It must be borne in mind that the legal penalty for crime is inflicted only upon final conviction, and that the object of imprisonment before trial is safe-keeping, not punishment, and in determining the amount of bail to be demanded the court should endeavor to fix upon such sum as is deemed sufficient to secure the presence of the accused at the trial, and in doing so they will take into consideration the pecuniary ability of the defendant. In Ex parte Banks, 28 Ala. 89, the court held: "In determining the amount of bail the court should consider the pecuniary condition of the accused." And in Ex parte Hammock, 78 Ala. 414, the court said: "The amount of bail, which should be graduated *Page 215 somewhat by the pecuniary ability of the petitioners."
The exercise of discretion by the trial judge in fixing the amount of bail is subject to review, and his decision will not be disturbed by the appellate court unless an abuse of power is clearly shown. It has been held that the appellate courts will not interfere to reduce bail unless it appears per se that the amount fixed is excessive.
In deference to the constitutional provision that in no case shall excessive bail be required, and in accord with the decisions, supra, it should certainly be held, under the undisputed facts in this case, which in effect show that this petitioner personally is practically destitute and without means, and that his ability to make bond at all is confined and limited to the modest holdings of his mother and sister, that the amount of bail fixed by the judge of $15,000 is excessive and prohibitive, and results in a denial of bail altogether; and the order should be here corrected to the extent at least of reducing petitioner's bail to $5,000. I cannot accord to the reasoning of SAMFORD, J., in the majority opinion, nor to the conclusion concurred in by RICE, J., to whom this petition was assigned, but in which he expresses no reasons for his concurrence. I therefore dissent, and am of the opinion that petitioner has been denied his constitutional rights in the premises.