Green

Defendant was charged with the murder of Joseph LaChance. He pleaded not guilty and not guilty by reason of insanity. He was tried before a jury which found that he was guilty of first degree murder and expressly fixed the penalty at death, and further found that he was sane at the time he committed the offense. Defendant's motion for new trial was denied and he was sentenced to death. This appeal, wherein defendant asserts insufficiency of the evidence and various errors of law which are hereinafter discussed, is taken pursuant to the provisions of subdivision (b) of section 1239 of the Penal Code. We have concluded that the judgment and order denying a new trial should be affirmed insofar as relates to the conviction of murder of the first degree but must be reversed, and the cause remanded for a new trial on the issue of penalty only, because of the instruction that "The discretion which the law invests in you ... is to be employed 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…