CANAL ZONE V. ZALDIVAR.23

guilty; upon such a plea being entered, the judge had not then the power to impose the death penalty, but was limited to the imposition of a sentence of confinement in the penitentiary for life.
It Ican not therefore %.ith reason be held that under our laws the punishment for murder in the first degree was left solely and exclusively with the trial judge. If a man could escape death by a voluntary plea of guilty, why could he not do so by a jury'6~ finding of exteiluating circumstances? This is particularly true if we remember that in many States of the Union the, power is expressly given to the jury, in finding a verdict of guilty in the first degree, to likewise fix the punishment therefor, that is, to say in their verdict whether the punishment shall be death or imprisonment in the penitentiary for life.
Our codifiers who enacted the present law must be presumed to have had in mind the fact that this is peculiarly the function of the jury and not of the judge. Why say that if there are extenuating circumstances the punishment shall be imprisonment for life and then give the accused the right to trial by jury in such case, if it were not intended that the jury as a body, looking at all the facts and circumstances, should have the right to find this fact? Otherwise the provision for extenuating circumstances becomes nugatory so far as ihe right of the accused with the jury is concerned, and this fact must then rest in the opinion and judgment of one man instead of with a jury of twelve.
In my judgment the right of the trial court, as my associate finds in this respect, isn not analogous to the discretion lodgeddin the court in the matter of fixing the number of years that. shall be imposed upon one found guilty of murder in the first degree,. a8 to whether the punishment shall be 10, 15, 20, or a greater number of years. There is a wide and fundamental difference between the fixing of the number of years, which is allowed as a matter of judicial discretion and the determination of the solemn question of whether the punishment shall be death or imprisonment for life. It is not consistent with the American idea of justice that where murder in the first degree may be punished by either death or imprisonment for life, that the circumstances which must govern the imposition of this punishment should be found by the judge alone and not by the jury.
This is not a case where the punishment must be left to the discretion of the court pursuant to the provisions of Section 24, page 85 of the Criminal Code, which provides;,

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