I concur in the judgment. I see no escape from the conclusion that the homicide was murder of the first degree. I am convinced, however, that the defendant suffered provocation which would weigh *776greatly in Ms favor if the court, in the exercise of its power under section 1181 of the Penal Code, could properly modify the judgment. The “judicial commutation” authorized by that section does not comprehend the power to reduce the penalty within the first degree, from death to life imprisonment. That function is exclusively with the jury in the first instance and then with the Governor in the exercise of his constitutional power of commutation.
Langdon, J., concurred.