I concur insofar as the judgment and order are affirmed, but I dissent insofar as the judgment and order are reversed.
The majority orders a partial reversal, purporting to rest its decision upon the authority of People v. Green, ante, p. 209 [302 P.2d 307]. I am of the view that the Green case is wholly inapplicable to the situation presented here and that the judgment should be affirmed.
It appears appropriate that I first make my position clear with respect to the decision in the Green case. I dissented in that case where the question involved was essentially one of statutory construction. I conceded in my dissent that if the question had then been an open one, “a plausible argument could be made for either construction.” My dissent was based upon the ground that the question was not an open one; that recent decisions of this court had settled the rule; and that those recent decisions should be followed. The majority there, however, determined that those decisions should be overruled. The decision in the Green case has therefore declared a new rule which the trial courts are now required to follow. Under the circumstances, I do not believe that any useful purpose could be served by further dissent. I therefore yield to the views of the majority in the Green ease regarding the construction to be placed upon section 190 of the Penal Code. It appears that the most important consideration now is to have a firmly established rule of construction for the guidance of the bench and bar in this important field of the law relating to the fixing of the penalty for first degree murder.
It does not follow, however, from my acceptance of the rule established in People v. Green, supra, that I should join in the partial reversal of the judgment here. The records in the two cases present entirely different situations, and I am of the view that the present majority opinion constitutes an unwarranted extension of the rule of the Green case.
The portion of the instruction which was challenged in the Green case read as follows: “The discretion which the law invests in you is not an arbitrary one and is to be em*774ployed only when you are satisfied that the lighter punishment should be imposed. If you find the defendant guilty of first degree murder and do not find extenuating facts or circumstances to lighten the punishment it is your duty to find a verdict of murder in the first degree and fix the penalty at death.”
It thus appears that the jury was there instructed that it was their “duty” to “fix the penalty at death” if they did not find “extenuating facts or circumstances.” The majority there held that the discretion conferred upon the jury by section 190 of the Penal Code was absolute. Under this construction of the section, the majority further held that the above instruction was erroneous as it had the effect of telling the jury that it must fix the penalty at death if it did not find extenuating facts or circumstances. No similar situation exists in the present case. Here both the prosecution and the defense properly proceeded upon the theory that the jury could consider the question of the existence or nonexistence of mitigating or extenuating facts or circumstances, if it so desired, in fixing the penalty. They therefore fully argued the question of whether such facts or circumstances existed, and the trial court read to the jury the dictionary definitions of “mitigate” and “mitigation” when the jury made its request.
The trial court here did not at any time tell or imply to the jury that it must fix the penalty at death unless it found such mitigating circumstances. The majority opinion concedes that the “formal instructions, eommendably, are free” from any such suggestion. The fact is that, unlike the Green case, the jury here was told in the formal instructions that “in determining which punishment shall be inflicted, you are entirely free to act according to your own judgment.” (Emphasis added.) Turning to the informal instruction given along with the dictionary definitions, the trial court was careful to point out that “The only thing I can tell you is that it is entirely up to you folks.” And again, “The only thing I can say to you, ladies and gentlemen, is that you heard the evidence; you are the sole judges as to what the penalty or punishment is to be in this case. That is up to you. I can’t tell you what to do. I gave you all the instructions. You have the instructions with you and if you can find any mitigating circumstances in the case, why, if that is what you are looking for, why it is up to you to find them. I can’t tell you anything about them.” (Emphasis added.)
*775The argument of the prosecuting attorney was likewise proper. When discussing punishment and the claimed absence of mitigating circumstances, he said: “The Judge will tell you it is a matter within your discretion. It is something you may consider, look over and decide. You can come to your own conclusion.” And again he said: “We feel from this evidence you should use your discretion, use it wisely, study the case, and feel when you come to the conclusion after you have thought it over that you will find this is a first degree case and that the imposition of the death penalty is justified.”
The sole implication which may be drawn from all the instructions, formal and informal, and from the argument of counsel is that the jury could consider the existence or nonexistence of mitigating circumstances, “if that [was] what [they were] looking for” in fixing the penalty. The last mentioned implication is entirely correct, and an express formal instruction to the effect that they could consider such matters, if they so desired, might well have been given even under the rule of the Green case, so long as it was made clear by the instructions, as it was here, that “In determining which punishment shall be inflicted, you are entirely free to act according to your own judgment”; that the question of punishment is “entirely up to you folks”; and that “you are the sole judges as to what the penalty or punishment is to be in this case. That is up to you.” It therefore appears that the instructions given were equivalent to an instruction that the jury’s discretion in fixing the punishment was “absolute.”
In view of the record, as summarized here and in the majority opinion, I cannot agree with the majority that this case is controlled by People v. Green, supra-, or that there was any error similar to that in the Green case which “involves the same untenable concept that under the law it is the duty of the jury” to impose the death penalty in the absence of evidence of mitigating circumstances. Permissive language was used at all times by court and counsel with respect to the fixing of the punishment, and no mandatory implications can properly be drawn therefrom. I therefore believe that the partial reversal by the majority rests upon an unwarranted and undesirable extension of the rule of the Green case to a situation in which it has no application.
In conclusion, I reiterate that I am of the opinion that it is entirely proper for counsel for the prosecution and counsel *776for the defense to argue concerning the claimed existence or nonexistence of mitigating circumstances in a murder case. It is a matter of common knowledge that such arguments are ordinarily presented in practically every trial for murder. I am further of the opinion that the trial court may properly give, upon the jury’s request, approved definitions of any words properly used by counsel in their arguments. I therefore conclude that counsel’s arguments and the trial court’s instructions here were wholly unobjectionable, and more particularly in the light of the trial court’s explicit instructions, formal and informal, concerning the jury’s absolute freedom to exercise its discretion in determining the punishment to be imposed.
I find no error in the record and would therefore affirm the judgment and order in their entirety.