(concurring). I respect profoundly the scruples of my dissenting colleague as being very sincere; and I confess that they make more difficult for me the performance of my own duty, as I see it.
The punishment of the high crime of first-degree murder is not one of the humanities. Its performance must be coldly and sternly judicial, if it obtain at all. The personality of the judge is not and should not be an influence or factor therein. The penalty is not of his invention. The statute provides for a death penalty. In the absence of a jury trial, and upon a plea of guilty,' the duty is cast upon the district court to fix the penalty. The penalty thus fixed in this case by the district court was warranted by the record before it. The record presented to us discloses no mitigating facts. This is frankly conceded by the distinguished counsel who has pleaded eloquently for a commutation of the sentence. Our jurisdiction in this case is appellate only. We are not justified in modifying the judgment below, unless there be some reason for it apparent in this record. We are not justified in arraying against the statute our own disinclination to impose its extreme penalty. In the dissenting views expressed by my colleague, I discover no reason suggested which would not, in effect, change the death penalty into a dead letter. If we commute the sentence at all, we must do so *1390substantially upon the ground that we are unwilling to impose death as a penalty for any crime, however heinous.
This statute is a very deliberate enactment. It is not the result of precipitate consideration. There was a time in this state when the death penalty was abolished. This legislative mercy bore its bitter fruit. The present statute was the solemn result of legislative reconsideration. The crime of first-degree murder is not only ruthless; it is usually the act of a reckless coward, who goes armed to waylay the unarmed and the unsuspecting. If there is any deterrent influence that can be set up beforehand against its commission, the fear of the death penalty would seem to be the most effective. Such, at least, is the legislative judgment, as expressed in the statute. It is not for us to say that this deterrent has not palsied many a murderous hand. Granted that it is a terrible penalty. Even so, it is less terrible than the crime. I concede that it should give way to mitigating facts, and that it is the urgent duty of this court to scan the record with open minds for the discovery of such facts. All this has been done. Our gleaning of the record has been futile.
I -cannot agree that our appellate power is a power of pardon or commutation. The pardoning power is an executive one, and is distinctly conferred upon the chief executive. To this extent we agree. If conferred upon the chief executive, why should it be conferred upon this court? Our function is judicial. It'is ours to determine the guilt or innocence of the defendant, and if he is guilty, to apply the penal statutes in such ease provided. We have no function of executive mercy. Unless, upon this record, we can differentiate the offense therein disclosed from one of extreme guilt, and can find in the record mitigating reasons why the extreme penalty should not in this case be imposed, then we are without authority to interfere at all with the judgment of the trial court. I am not willing to array mere judicial power to the nullification of the statutory penalty, terrible as it is. To do so would not only encroach upon the legislative prerogative; it would give to the future assassin a sense of security, already and long too great and comfortable. I think the statutory sword of Damocles above his head should *1391be hung by a more slender thread, and that the terror thereof should be increased, rather than lightened. While we have-pondered upon this record, as it is meet that we should do, murder has stalked like a hunter, unafraid, within the domain of our jurisdiction, leaving its red trail of dead men and ravished women. If there be any means discoverable by human wisdom whereby murder contemplated may be deterred by the punishment of murder done, such wisdom must find its expression by legislation. It is not a function of the judiciary to veto it.
With a due sense, therefore, of the solemnity of our responsibility in this case, I would let the statutory penalty fall. I concur fully in the majority opinion of Mr. Justice Preston.
- Stevens, C. J., Arthur and De G-raee, JJ., join in this concurrence.