(dissenting).
It is my opinion that without the record sustaining its position this court has faulted the trial court in fixing the amount of bail. RCr 4.06 is patterned after judicial decisions. See 8 C.J.S. Bail § 49, P. 132; 8 Am.Jur.2d 824, Bail, § 71. It is designed to assist in the determination of the amount of the appearance bond. The first specified consideration is that the amount should insure compliance, words that connote a guarantee of performance. What amount will insure that Orville Clifton Long will comply? His criminal record shows absolute irresponsibility. He is faced with a conviction which calls for a penalty of up to thirty years.in the penitentiary and a fine in the maximum amount of $40,000. While I concede that the possibility of his being indicted and tried as an habitual criminal under KRS 431.190 should not be considered in determining the amount of the bail, nevertheless, the thought of life imprisonment on such a charge must be lurking in his mind and may result in non-compliance. With strong evidence against him as indicated by the record, what amount of bail will deter him from becoming a fugitive?
RCr 4.06 furnishes the guides to be considered. The first is the ability of the accused to give bail. While the record shows that Long was unemployed and was without substantial wealth strangely enough when arrested he had approximately $1,-400 in cash on his person. There was no showing that he could or could not pay a substantial premium for a bond.
The court must consider the nature and circumstances of the offense. In this day of determined effort on the part of all divisions of our governments to protect this nation, particularly its youth from those who in their greed for wealth vend heroin, is there a more dastardly crime ?
Other matters to be considered are the weight of the evidence, which I have already discussed, and the character and reputation of the defendant. His criminal record and his bad reputation have been reported.
I am of the opinion that this court was without right to declare that bail in the amount of $150,000 is excessive.
OSBORNE and NEIKIRK, JJ., join me in this dissent.