delivered the opinion of tbe Court.
Ilofler was convicted, in tbe Clark Circuit Court, of an assault with, intent to kill, &c., and sentenced to the Penitentiary for three years. Whereupon, the record states, he “Piled his prayer of appeal herein, to the Supreme Court, which being considered by the court, it is ordered that- the said prayer be granted, and that the defendant have an appeal in this case to the Supreme Court, and that the clerk of this court make, certify, and send into said Supreme Court, a true and complete copy thereof.
Whereupon, on motion of said defendant, Ilofler, it is ordered by the court, that the execution of the judgment be stayed for the time and term of twenty days, that said Ilofler, in the mean time, may apply to the Supreme Court for a supersedeas', whereupon it is ordered by the court, that said defendant be remanded to the custody of the sheriff from whence he came.”
The appellant has filed a transcript of the record in this court; and applied for a supersedeas of the sentence of the court be*215low, until tbe case can be finally adjudicated here upon bis appeal.
The appellant was entitled to the appeal as a matter of right. Digest, ch. 52, sec. 225. lie had also the right to apply to the Circuit Judge, for a stay of the execution of the sentence, until the appeal could be heard and determined in this court. Ib. sec. 226.
Had he applied to the Cricuit Court for such stay of execution, and the application had been overruled, it would have been the duty of the court, nevertheless, to have stayed the execution of the judgment, except as to costs, for a sufficient time to enable the appellant to make application to this court, or one of its judges, for a supersedeas. Ib. sec. 228.
But the appellant having made no application to the court below, for an order staying the execution of the judgment, until his appeal could be heard and determined here, this court cannot grant the supersedeas now asked for by him, according to the decision in Bixby Ex parte, 13 Ark. R. 286. The rule is, that the application for supersedeas must first be made to the Circuit Court and refused by it, before this court will hear such application.
The appellant is privileged notwithstanding, to prosecute his appeal, but, in the mean time, there can be no stay of execution, on this application, at least.
Absent, Mr. Justice "Walkee.