This is an appeal from a judgment rendered by the Hon. A. J. Hood, judge of the twenty-ninth judicial district, upon a trial on habeas corpus, which judgment admitted the applicant to bail in the sum of ten thousand dollars. Appellant contends that the amount of bail required is excessive, and this is the only question presented for the consideration of this court.
It is a constitutional provision that “excessive bail shall not be required.” (Bill of Bights, Sec. 13; Code Crim. Proc., Art. 8.) Buies for determining the amount of bail are prescribed by Article 296 of the Code of Criminal Procedure, as follows:
“The amount of bail to be required in any case is to be regulated by the court, judge, magistrate, or officer taking the bail; they are to be governed in the exercise of this discretion by the Constitution of the State, and by the following rules:
“1. The bail shall be sufficiently high to give reasonable assurance that the undertaking will be complied with.
“2. The power to require bail is not to be used in such manner as to make it an instrument of oppression.
“3. The nature of the offense and the circumstances under which it was committed are to he considered.
“4. The pecuniary circumstances of the accused are to be regarded, and proof may be taken upon this point.”
It will be perceived that fixing the amount of bail is a matter within the discretion of the court, judge, magistrate or officer taking the same, and being a matter of discretion this court will not revise the action of the lower tribunal, unless it be made clear that the discretion has been abused, and the Constitution violated.
In the case before us, we cannot say from the evidence presented in the record that the amount of bail required is excessive. Appellant is charged by indictment with murder. It is not proper that we should discuss the evidence in the case, farther than to say that the position assumed by his counsel that the offense, if any, of which he could be convicted by *401the evidence is negligent homicide, is not, in our opinion, correct. If appellant, while assaulting his wife with the intent to murder her, accidentally killed the child, this would not be negligent homicide, but would be murder in the second degree. (Penal Code, Art. 47; Art. 590; McCoy v. The State, 25 Texas, 33; Bean v. Matthieu, 33 Texas, 591; Angell v. The State, 36 Texas, 542; Ferrell v. The State, 43 Texas, 503; Taylor v. The State, 3 Texas Ct. App., 387; Halbert v. The State, 3 Texas Ct. App., 656.)
If the intention of appellant in assaulting his wife was not to kill her, but was only to beat her, and in perpetrating this offense he accidentally killed the child, then and in that case only would the offense come within the definition of negligent homicide. (Penal Code, Arts. 587, el seq.; Ferrell v. The State, 43 Texas, 503.)
It not appearing to us, therefore, that the appellant’s offense is clearly not murder, we cannot say, in considering the nature of the offense and the circumstances under which it was committed, that the judge abused the discretion confided to him by the law, in fixing the amount of bail.
We are asked to consider the pecuniary circumstances of the appellant in determining this question. It would be very proper for us, to do so, if it were shown by the record what are his pecuniary circumstances; but this the record fails to show. We are informed by the evidence that he has some property, which is involved in litigation, but we are not informed as to the character and value of this property, or the nature of the litigation in which it is involved. It may be property worth one hundred thousand dollars or more, and his title to it, notwithstanding it may be in litigation, may be valid, and worth thrice the amount of the bail required. We cannot determine from this character of evidence the pecuniary circumstances of the appellant, and certainly will not revise the action of the court below, who was in a much better position than we are to judge of appellant’s ability to give the bail, upon evidence so meagre and uncertain. It is presumable that appellant could have shown by proof his pecuniary circumstances, and he having failed to do this, it cannot reasonably be expected that this court will revise the action of the court below in fixing the amount of bail. The judgment is affirmed.
Affirmed.
Opinion delivered February 3, 1883.