delivered tbe opinion of tbe Court.
Pending an appeal from a conviction of burglary and tbe possession of burglar’s tools, tbe plaintiffs in error petitioned this Court for a supersedeas to set aside tbe action of tbe trial judge in refusing them bail. Tbe Court reserved taking any action on tbe petition until the filing of tbe record since a proper adjudication could not be made until tbe facts have been fully considered. Tbe trial judge gave no reason for denying bail to tbe petitioners.
Tbe plaintiffs in error offered no evidence to establish their innocence. Tbe record which is now before us shows without dispute that Goins was tbe instigator of tbe crime; be contacted one, “Buck” Smith, who was employed by tbe owner of tbe burglarized store, and proposed that if be would let him and associates into tbe store they would open tbe safe and divide tbe money. Tbe men bad several conversations about it, at tbe instance of Goins. Smith at first thought it was a joke, but finally agreed to leave tbe doors unlocked and thus admit Goins and party so that they might rob tbe safe. Smith at once reported tbe contemplated robbery to bis em*35ployer, Mr. Bo stain, who in turn notified the Chattanooga police. Upon receiving this information the police stationed themselves in the building and awaited the arrival of the burglars. The first night the robbers did not appear; the second night they did appear. About midnight, Walter Goins, Charles West and Paul Smith entered the building. Realizing that they were caught in the act one of them, Paul Smith, fired his pistol at Officer Taylor who returned the fire, resulting in Smith’s being killed. Another of the robbers, Charles West, fled and hid in a large ice box; he had in his possession a sack of “burglar’s tools.”
The petitioners concede that following a conviction of a felony they are not entitled to bail as a matter of right. Hicks v. State, 179 Tenn. 601, 168 S. W. (2d) 781; and Butt v. State, 131 Tenn. 415, 175 S. W. 529. In other words the constitutional right to bail is lost after conviction. Whether or not bail should be allowed is a matter resting within the sound discretion of the trial judge. In Butt v. State, supra, the defendant was convicted of murder in the first degree with “mitigating circumstances” with a sentence to life imprisonment. In the Hicks case the defendant was also convicted of murder in the first degree, his punishment being fixed at twenty-one (21) years in the penitentiary.
The common law power of the court to grant bail is confined to felony cases and should be always exercised with great caution. It cannot be doubted that “if an appeal is captious and obviously filed for the purpose of delay or other like reasons then the trial court would be justified in denying bail pending the appeal. ’ ’ The right 'to bail in the case at bar is grounded upon the contention that bail should not be denied where “the appeal involves a substantial question which should be determined *36by the Appellate Court”; 18 U. S. C. A. Section 688; see Section 3772 of the Revised Code, also Rule 46 (a) (2) of the Federal Rules of Criminal Procedure, 18 U. S. C. A., that sucb a rule is observed in tbe United States Courts and should be decisive of the question of “ discretion” in the courts of this State.
Conceding, but not deciding, that the “Federal Rule ” is a sound one, the question of whether an appeal raises “a substantial question” should not be left alone to plaintiff in error or his counsel. The vital question in determining the matter of discretion should be the nature of the charge against the accused, and, following conviction, whether or not it would be safe for him to be at large. The right of a convicted felon to bail is subordinate to the public peace and the wellbeing of society. We think the “Federal Rule” is generally followed by most, if not all, of the trial courts in this State. But should the rule hold true in every case? We think not. The “substantial question” made by appellant may exist only in the fertile imagination of counsel. Moreover the ruling of the trial judge upon every question is presumed to be correct in the absence of any showing that it was arbitrarily and capriciously made. The term “discretion”, as used in our decisions, is incapable of being defined so that it could be applied to every situation. Of course it has reference to judicial discretion as distinguished from an act that is arbitrary and capricious. In all cases the burden is upon the accused to point out wherein the court has abused his discretion in refusing bail pending an appeal.
We confine our ruling to the facts shown in the record now before us in determining if the trial judge abused his discretion in refusing bail. Pretermitting for the present the question of whether or not these peti*37tioners are guilty of burglary, it is not denied that they were potential murderers. They were ready to kill any and all persons who dared to interfere with their criminal conspiracy.
In these circumstances it was not an abuse of discretion to deny them bail.
All concur.