1. We would not be justified in disturbing the verdict on the ground that the evidence is insufficient to warrant it.
2. Appellant contends that the court below erred in instructing the jury: “ If the evidence shows the defendant to be guilty of murder in the first degree, but does not show some extenuating fact or circumstance, it is the duty of the jury to find a simple verdict of guilty of murder in the first degree, and leave with the law the responsibility of fixing the punishment.” The words quoted are found in the concluding clause of an instruction which reads: “If the jury find the defendant guilty of murder in the first degree, and they also find the further fact that there is some extenuating fact or circumstance in the case, it is within their discretion to pronounce such a sentence as will relieve the defendant from the extreme penalty of the law. The Penal Code invests a jury in a criminal case for murder with that discretion, but the discretion is not an arbitrary one, and is limited to determining which of two punishments shall be inflicted, and is to be employed only when the jury is satisfied that the lighter penalty should be imposed. If the evidence shows the defendant to be guilty of murder in the first degree, but does not show some extenuating fact or circumstance, it is the duty of the j ury to find a simple verdict of murder in the first degree, and leave with the law the responsibility of affixing the punishment"
*192There is in this instruction no error. The discretion given the jury by the statute is not an arbitrary one, but is to be employed, as said by this court in People v. Welch, 49 Cal. 179, “ only where the jury is satisfied that the lighter penalty should be imposed.” Of course, the jury could only be satisfied by the facts and circumstances of the case.
The instructions were clear and correct, and covered every phase of the case.
Judgment and order affirmed.
McKee, J., Morrison, C. J., Myrick, J., Sharpstein, J., and Thornton, J., concurred.