LAMANT McLAUGHLIN
v.
WARDEN OF THE BALTIMORE CITY JAIL.
Misc. No. 22, September Term, 1972.
Court of Special Appeals of Maryland.
Decided January 3, 1973.Before ORTH, C.J., and POWERS and GILBERT, JJ.
Application filed by Harold Buchman for applicant.
No appearance on behalf of respondent.
GILBERT, J., delivered the opinion of the Court.
Lamant McLaughlin seeks leave to appeal from a denial by the Baltimore City Court of a writ of habeas corpus brought for the purpose of having bail set in order for applicant to be released from custody pending trial for the crime of murder. Authority to seek leave *452 to appeal is found in Md. Ann. Code Art. 42, § 20; Long v. State, 16 Md. App. 371, 297 A.2d 299 (1972).
Maryland Rule 777 a provides:
"Prior to conviction an accused who is charged with an offense the maximum punishment for which is other than capital shall be entitled to be admitted to bail. In a capital case the accused may be admitted to bail in the discretion of the court."
As the result of Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 38 L.Ed.2d 346 (1972), and Bartholomey v. State, 267 Md. 175, 297 A.2d 696 (1972), the death penalty is apparently only applicable to those offenses in which it is the mandatory penalty prescribed by law. As Maryland law presently exists, there is no capital crime because the death penalty is not mandatory. Consequently, the reference in Rule 777 a to "capital" crimes has been rendered ineffectual by the Furman and Bartholomey decisions.
We now construe Rule 777 a to provide that prior to conviction an accused shall be entitled to be admitted to bail. The amount of bail is in the discretion of the trial court so long as that amount is not excessive. Eighth Amendment to the Constitution of the United States; Art. 25 of the Maryland Declaration of Rights.
We shall grant leave to appeal and remand the matter to the trial court for the setting of proper bail.
Application for leave to appeal granted and case remanded for further proceedings not inconsistent with this opinion.
Costs to be paid by the Mayor and City Council of Baltimore.