dissenting:
I respectfully dissent. I would not deprive the trial judge of the right to exercise sound judicial discretion, even if the case fell within the wording of our statute and Article II, Section 19 of the Colorado Constitution. Our Constitution and a companion statute require that “all persons shall be bailable by sufficient sureties except for capital offenses when the proof is evident or the presumption great.” Colo. Const. Art. II, Sec. 19. See Colo. Sess. Laws 1972, ch. 44, 39-4-101 at 203; Crim. P. 46.
The Colorado Constitution requires that a hearing be held to ascertain whether the proof is evident or the presumption great. Shanks v. People, 153 Colo. 332, 385 P.2d 990 (1963).
The issue which the majority has decided in this case only arises when the court determines that the proof is evident and the presumption great. In my view, the majority has placed an unnecessary restriction on the trial judge. The wording of our Colorado Constitution does not require the interpretation which the majority opinion affords it. A number of jurisdictions with similar constitutional provisions have left some discretion with the *168trial judge. In State v. Toomey, 126 Vt. 123, 223 A.2d 473 (1966), the court said:
“Even where the offense charged is a capital one, and the proof of guilt is evident or presumption .great, the prisoner may be admitted to bail in the discretion of the court . . . ; but in this connection it should be stated that the discretion to be exercised by a court of justice is not an arbitrary, but a sound, judicial discretion, controlled by certain and well defined and established rules.”
Similar interpretations of similar constitutional bail limitations were made by other courts of last resort which have reached the issue. In re West, 10 N.D. 464, 88 N.W. 88 (1901); Ex parte Howell, 34 Okla. Crim. App. 126, 245 P. 66 (1926). The language in In re Losasso, 15 Colo. 163, 24 P. 1080 (1890), also commands the interpretation which I would afford the Constitution.
Accordingly, I would discharge the rule.