#### Lane, Smith and Barg v. State.

4600

230 S. W. 2d 480

Opinion delivered June 5, 1950.

Per Curiam.

This Court after having on April 10, 1950, affirmed judgments of conviction against the petitioners herein, issued an order withholding its mandate *429■until June 1, 1950, in order to permit a petition for review by certiorari to be filed in tbe Supreme Court of tbe United States. Petitioners now state that tbe United States Supreme Court, due to lack of time, bas not acted upon tbeir request for review by certiorari and, due to tbe fact that tbe United States Supreme Court will shortly recess, no action can be taken on tbe petition for certiorari until tbe end of tbe recess, wherefore petitioners ask that this Court grant a further stay of its mandate and permit petitioners to remain free on bail pending final action by tbe United States Supreme Court on tbe petition for certiorari.

Tbe right to bail pending appeal after conviction is at common law a matter of judicial discretion in tbe individual case. That rule is unchanged by tbe Arkansas Constitution (Art. II, §§ 8, 9), and is changed by our statute, Ark. Stats., § 43-2714, only as to certain appeals in criminal cases pending before tbe Supreme Court of Arkansas. Tbe present case, involving petition for cer-tiorari from this Court to tbe Supreme Court of tbe United States, does not come within § 43-2714. Tbe common law rule of judicial discretion is here applicable.

Tbe situation in tbe present case is tbe same as if Buie 46 (a) (2) of tbe Federal Eules of Criminal Procedure were applicable. This reads :

> “Bail may be allowed pending appeal or certiorari only if it appears that tbe case involves a substantial question which should be determined by tbe appellate court. Bail may be allowed by tbe trial judge or by tbe appellate court or by any judge thereof or by tbe circuit justice. ’ ’

This rule is of course not applicable in certiorari from this Court to tbe Supreme Court of tbe United States, but we quote it as illustrative. of tbe reason for our conclusion in this case.

Tbe majority of this Court are of tbe opinion that tbe record in tbe present case presents no substantial federal question which would justify tbe exercise of our discretion in favor of granting bail after conviction and *430affirmance of conviction. We therefore refuse to stay the mandate further, and defendants are required to surrender themselves in accordance with the prior orders of this Court.