Appellant was indicted for the crime of murder in the first degree, and on the trial of the case was convicted of that offense, but the verdict of the jury fixed the punishment at imprisonment in the State penitentiary for life.
The court overruled appellant’s motion for a new trial and granted an appeal to this court, but refused, on motion of appellant’s attorneys, to fix bail.
The statute provides that a defendant in a criminal case on appeal to the Supreme Court “shall be permitted to give bail pending the appeal in such amount as the court may think proper and safe, in all cases, except in appeals from a conviction of a capital offense.” Kirby’s Digest, section 2587. The learned circuit judge refused bail on the ground that appellant was convicted of a capital offense within the exception specified in the statute. The General Assembly of 1915 enacted a statute (Acts 1915, p. 774) providing that in the trial of cases where the punishment was death, as the law then stood, the jury should have the right “to render á verdict of life imprisonment in the State penitentiary at hard labor.”
It was pursuant to the authority of this, statute that the jury assessed the punishment in this case at life imprisonment instead of imposing the death sentence.
The question presented now is whether, notwithstanding the imposition of the lower penalty, the appeal comes within the exception in the statute allowing bail on appeals in criminal cases. We do not think that the case comes within the exception, and that appellant is entitled to bail. What the lawmakers intended by this statute was to allow bail in all cases except where capital punishment was im*404posed by the judgment appealed from. The statute deals solely with the question of appeals' and measures the right of appellant to bail according to the severity of the punishment imposed under the judgment of conviction, and not by the gravity of, the original charge in the indictment. Conceding, without deciding, that if the judgment be reversed and the cause remanded for a new trial, the jury would have the power, upon another conviction of murder in the first degree, to impose the death penalty, notwithstanding the fact that the former jury had imposed the lesser penalty, still the judgment now before us is not one which constitutes a capital conviction for the simple reason that the severest penalty of the law is not imposed. The judgment is not vacated by the appeal and supersedeas, but the effect of the appeal and supersedeas is only to stay proceedings under the judgment. Miller v. Nuckolls, 76 Ark. 485; Boynton v. Chicago Mill & Lbr. Co., 84 Ark. 203; Foohs v. Bilby, 95 Ark. 302.
The attorney general relies upon the case of Caesar v. State, 127 Ga. 710, as sustaining the contrary view, That case involved the interpretation of a provision of the Georgia Constitution which conferred jurisdiction on the Supreme Court “in all cases of conviction of a capital felony,” and the court held that a conviction of murder in the first degree with the imposition only of life imprisonment, where either that punishment or the death penalty might be imposed by the trial jury was “a conviction of a capital felony” within the language of the Constitution so as to confer jurisdiction on the Supreme Court.
The reasoning of the court in that case is not without some force in the present one, but the question there involved was altogether different from the one now before us. The Constitutional provision under consideration in that case involved the jurisdiction of the court in a certain class of cases, whereas we are dealing with a statute which concerns the right of bail, and we think that the legislative intent is clear that bail should be *405allowed except in eases where the appellant rests under a conviction imposing the death penalty.
An order will, therefore, be entered here admitting appellant to bail.