The defendant was bound over to the Superior Court of Jones County on a charge of rape. Pending trial he made a motion before the trial judge for bail to the time of trial, which he alleges will be during the October term of that court, the denial of which is the subject matter of an appeal now pending before this court. He has also filed a special motion for bail, praying that this court declare that the offense charged is not a capital felony and that he is entitled to reasonable bail as a matter of right. Held:

"Capital offenses are bailable only before a judge of the superior court; and this is, in every case, a matter of sound discretion.” Code § 27-901. Rape is a crime as to which the Georgia statutes declare that the death penalty may be inflicted. Code Ann. § 26-2001 (Ga. L. 1968, *146pp. 1249, 1299). The existence and constitutionality of death penalties has been put in issue in Furman v. Georgia, 408 U. S. 238 (92 SC 2726, 33 LE2d 346), now pending on rehearing. The office of the Attorney General of Georgia, in letters transmitted to the Georgia Department of Rehabilitation and the State Board of Pardons and Paroles has in recent weeks pointed out that the decision is in the breast of the Supreme Court at least until after it reconvenes this fall; that after a final decision by that court the cases will have to work their way down through the appropriate judicial structures, and that at least as of the present there has been no change in the law of Georgia as it relates to capital felonies.

We agree with this analysis of the current legal situation. We have considered our jurisdiction to decide the question raised and, under the authority of Harris v. State, 190 Ga. 773 (10 SE2d 752) feel that it is properly before this court, but that there is no authority to override the discretion of the trial judge in this matter.

Application for bail denied.