CANAL ZONE V. ZALDIVAR.29

tation and deliberation necessary. to constitute murder in the first degree and so reduce the charge to that of murder of the second degree solely. In the information filed in the case at bar no such qualifying words are found. So far as concerns the information, therefore, it 'was within the right of the jury to find the defendant guilty of murder of the first degree in the manner and form set out in the record.
During his argument counsel for appellant attempted to persuade this court to modify 'the judgment of the court below by changing the punishment imposed from the death penalty to imprisonment for life. Such endeavor was based on the theory that the records shows mitigating circumstances and the section of the Penal Code which provides that when there are extenuating circumstances the penalty for murder of the first degree shall be imprisonment for life. (Penal Code, sec. 149, as am ended.)
Every person guilty of murder of the first degree shall suffer death or, where there are extenuating circumstances, confinement in the penitentiary for life.
This section relates to penalty only. It provides an alternate punishment for the crime of murder in the first degree. Whether that punishment shall be death or confinement in the penitentiary for life is a question addressed to the judicial conscience of the trial judge and is to be determined by him in the light of an honest consideration of the fa-cts and circumstances of the case, Just as he determines. by an impartial consideration of the facts whether he shall impose a term of ten, fifteen or twenty years imprisonment as a pur ishment for second degree murder.
And from the very fac-t that the sen~ten~ce in this case was that the defendant should suffer death it is to be presumed that the trial judge concluded that the facts of the case do not disclose any extenuating circumstances.
There is no question, however, of the right of the Supreme Court to modify the judgment of the lower court in a criminal case when good cause is shown. (Code of Criminal Procedure, sec. 278.) But this authority Should not be exercised merely to satisfy a whim or -a sentiment. Such power was conferred upon the court for the Sole. purpose of correcting the abuse of discretion by the trial court, and should not be employed except in the rare cases where manifest injustice would otherwise be effected. It is claimed, however, that the case at bar is one of such rare cases. This claim makes it necessary to examine the facts set out in the record.

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