The principle upon which the affirmance rests is that there is no power in a judge of the Supreme Court to review another judge’s fixing of bail in a criminal case. If that be so, then the, writ of habeas corpus constitutes no remedy. It has been held in other States and by the Federal courts that such writ in such cases is proper. (Evans v. Foster, 1 N. H. 374; Jones v. Kelly, 17 Mass. 116; Whiting v. Putnam, 17 id. 175; Ex parte Duncan, 53 Cal. 410; 54 id. 75; United States v. Brawner, 7 Fed. 87; Matter of Kaine, 3 Blatchf. 1, 4; Matter of Martin, 5 id. 303; Matter of Henrich, Id. 414; Matter of Stupp, 12 id. 501; Matter of Macdonnell, 11 id. 174.)
Were it not so, the prisoner would be remediless, for no appeal lies in criminal cases except from a judgment of conviction. (Code Crim. Proc. § 517.)
Section 5 of article 1 of the State Constitution was adopted with the knowledge on the part of the makers of it that magistrates and judges were the only functionaries with power to fix bail and that the Constitution would be ineffective unless other judges might review the determination of the bailing magistrate.
To impose excessive bail is to deprive the accused of due process of law, is against the fundamental law of the State. (Magna Charta, § 39; State Const. art. 1, §§ 1, 6; U. S. Const. 14th Amendt. § 1.) To give power to such charter the writ of habeas corpus came into its distinction.
In People ex rel. Tweed v. Liscomb (60 N. Y. 592) Judge Allen *606wrote: “ That writ is alike a protection against encroachments upon the liberty of the citizen by the unauthorized acts of courts and judges as against any mere arbitrary arrest.”
All that remains of this appeal is the claim urged that the hearing before the reviewing justice was not adequate.
No course of procedure for reviewing bail has been established in this State. Such procedure, therefore, must be such as the reviewing judge deems necessary.
Assuming that he should inquire into the magnitude of the crime, the punishment imposed by law, the record of the accused, the financial ability of the accused and his social obligations, it appears that the inquiry was sufficient. It covered at least three of the above items and knowledge in respect to the fourth would naturally have weighed to influence the fixing of a lighter bail.
The argument for the bail required is based on the rumor of a former conviction. Rumor does not furnish a basis for judicial decision.
To fix larger bail than otherwise would be required upon the foundation of rumor certainly is to deprive a person accused of crime of his liberty without due process of law. It is not an act of justice, it is an act of oppression. It is against such oppression that the requirement of excessive bail has been forbidden in the English Bill of Rights of 1688 (1 Wm. & M. Sess. 2, chap. 2), the Constitution of the United States (8th Amendt.), and the Constitution of our own State (Art. 1, § 5).
There is no justification in the record for requiring bail of relator in the amount of $10,000. That sum is twice the amount of the fine provided by section 952 of the Penal Law (added by Laws of 1913, chap. 475, as amd. by Laws of 1925, chap. 278). It is six and one-half times the amount of which complainant is alleged to have been defrauded by the prisoner. Where can the .ordinary accused man find bail in the sum of $10,000? Only a faithful friend or a sympathetic philanthropist moved by a character beyond reproach would risk so much to free an accused.
It seems to me that any competent judge in the exercise of his judicial duty could see without entering upon any hearing that the bail here required was “ disproportionate to the offense ” and was per se excessive. In such case it would be the duty of the judge or justice to reduce it. (People v. Town, 4 Ill. 19; McConnell v. State, 13 Tex. Ct. App. 390; Ex parte Ross, 70 Tex. Cr. 493; Ex parte Creed, 67 id. 173; Ex parte Snow, 1 R. I. 360; Bailey Habeas Corpus, pp. 486, 487.)
Not only the magistrate who fixes the bail but every judge who is called to pass upon the question .of excessive bail is under *607his constitutional oath bound not to require it. If he does he is amenable to removal or impeachment. (Evans v. Foster, supra.) I think the bail fixed by the County Court was excessive.
The order should be affirmed.
Order reversed on the law and the facts, writ of habeas corpus dismissed, and defendant [relator] remanded to the custody of the sheriff of Tioga county.