TRAYNOR, J.
This appeal is automatic from a judgment imposing the death penalty. (Pen. Code, § 1239, subd. (b).) Defendant had been found guilty of the first degree murder of Hazel Wilson, and sentenced to death. The judgment was affirmed on appeal insofar as it adjudged defendant guilty, but reversed insofar as it imposed the death penalty. (People v. Purvis, 52 Cal.2d 871, 884-887 [346 P.2d 22]). Upon retrial the jury again fixed the penalty at death.
Defendant contends that there was reversible error in the present proceeding because of the trial court’s refusal to give certain requested instructions, its limiting the testimony of a defense witness, and its refusal to exclude certain hearsay testimony, and also because of misconduct of the prosecuting attorney.
Defendant requested the trial court to instruct the jury that in exercising its discretion as to the appropriate penalty it was to consider only facts proved beyond a reasonable doubt.1 He requested an alternative instruction that only facts established by a preponderance of the evidence could be considered.2 He also requested the court to instruct the [96]*96jury that if it entertained a reasonable doubt as to which of the penalties to impose, the lesser penalty should be given.3
The court properly refused to give the requested instructions. The jury has absolute discretion in fixing the penalty and is not required to prefer one penalty over another. (People v. Jones, 52 Cal.2d 636, 648-649 [343 P.2d 577]; People v. Brice, 49 Cal.2d 434, 437 [317 P.2d 961].) In evaluating the evidence the jury was bound by the instructions given as to the limited purpose for which certain evidence was admitted, but beyond that it could draw its own inferences, determine the probative weight of evidence, and select the appropriate penalty on the basis of its evaluation of the evidence. (People v. Brust, 47 Cal.2d 776, 787-790 [306 P.2d 480]; People v. Friend, 47 Cal.2d 749, 767-768 [306 P.2d 463].)
Joseph Spangler, an administrative officer for the California Adult Authority, was called as a witness for the defendant as an expert on the parole policies of the Adult Authority. He testified to the median time spent in prison by first degree murderers who had been paroled. He was then asked whether he had any information as to the parole of a person who had been convicted of murder, paroled, and convicted of another murder. Mr. Spangler answered that he knew of one such person, but the trial court did not allow him to tell the jury about that person since he had been convicted of two first degree murders and not of a second degree murder followed by a first degree murder. Three times the jury returned to the courtroom to ask about parole procedure, and at one of those times asked to have the entire transcript of Mr. Spangler’s testimony read to them. Defendant contends that it was proper for the jury to hear evidence as to how the Adult Authority would deal with a man twice convicted of murder (People v. Purvis, 52 Cal.2d 871, 885 [346 P.2d 22]), and that the interest of the jury in parole procedure indicated that the court’s error in excluding that evidence was prejudicial.
[97]*97The distinction between the paroling of a person convicted of two first degree murders and a person convicted of a second degree murder and then first degree murder would seem to be too fine to justify exclusion of the offered testimony. Any error, however, in excluding the testimony was not prejudicial, for evidence of a single example would not be sufficient by itself to show a general practice of the Adult Authority or how it would treat another recidivist murderer.
Over defendant’s objections hearsay statements were admitted of Eleanor Purvis, defendant’s second wife, for whose death defendant had previously been found guilty of second degree murder. Officers testified that Eleanor Purvis had made statements to them that she was afraid defendant was going to kill her, that defendant had beaten her, had held her under water in a bathtub, and deliberately burned her thigh and vagina with a cigarette. None of this testimony had been introduced at defendant’s trial in 1950 for the murder of Eleanor Purvis.
Although there may be “inquiry into relevant circumstances surrounding an earlier crime of which the defendant was convicted” (People v. Purvis, 52 Cal.2d 871, 881 [346 P.2d 22]), evidence of the earlier crime must meet the rules of admissibility governing proof of that crime or be otherwise properly admissible in the penalty proceeding. The attorney general contends that some ' of the hearsay statements of Eleanor Purvis can be admitted against defendant as his adoptive admissions. There was conflicting testimony whether defendant was present when the statements were made. Even if he were present, “Where his response is silence, evasion, or equivocation, it is for the trial court to determine in the first instance whether the accusation has been made under circumstances calling for a reply, whether the accused understood the statement, and whether his conduct or response was such as to give rise to an inference of acquiescence or guilty consciousness.” (People v. Simmons, 28 Cal.2d 699, 712 [172 P.2d 18]; see People v. Davis, 43 Cal.2d 661, 670 [276 P.2d 801] ; McBaine, California Evidence Manual 2d ed., § 934.) There is no evidence that would support such a determination. Furthermore there were no instructions given to the jury on evaluating adoptive admissions.
The Attorney General invokes People v. Merkouris, 52 Cal.2d 672, 682 [ 344 P.2d 1], and People v. Atchley, 53 Cal.2d 160, 172 [346 P.2d 764], for the proposition that the hearsay statements were admissible to show the state of mind of [98]*98Eleanor Purvis. In the Merkouris case, the victims’ statements indicating fear of the defendant were admitted to identify the defendant as the killer. In the Atchley ease, the statement was admissible on the issue of self-defense.
In the trial for the murder of Eleanor Purvis neither the identification of defendant as the killer nor a claim of self-defense was in issue. Nor had defendant put in issue any other fact to which the hearsay statements were relevant. Defendant’s defense in that trial was that he acted without premeditation and was therefore guilty of second degree murder only. Thus, even on the issue of guilt the state of mind of the victim would not have been relevant. In the present case the hearsay statements of Eleanor Purvis were admitted, not merely to establish defendant’s guilt of her murder but to influence the jury in a separate proceeding to determine the penalty for a subsequent murder.
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TRAYNOR, J.
This appeal is automatic from a judgment imposing the death penalty. (Pen. Code, § 1239, subd. (b).) Defendant had been found guilty of the first degree murder of Hazel Wilson, and sentenced to death. The judgment was affirmed on appeal insofar as it adjudged defendant guilty, but reversed insofar as it imposed the death penalty. (People v. Purvis, 52 Cal.2d 871, 884-887 [346 P.2d 22]). Upon retrial the jury again fixed the penalty at death.
Defendant contends that there was reversible error in the present proceeding because of the trial court’s refusal to give certain requested instructions, its limiting the testimony of a defense witness, and its refusal to exclude certain hearsay testimony, and also because of misconduct of the prosecuting attorney.
Defendant requested the trial court to instruct the jury that in exercising its discretion as to the appropriate penalty it was to consider only facts proved beyond a reasonable doubt.1 He requested an alternative instruction that only facts established by a preponderance of the evidence could be considered.2 He also requested the court to instruct the [96]*96jury that if it entertained a reasonable doubt as to which of the penalties to impose, the lesser penalty should be given.3
The court properly refused to give the requested instructions. The jury has absolute discretion in fixing the penalty and is not required to prefer one penalty over another. (People v. Jones, 52 Cal.2d 636, 648-649 [343 P.2d 577]; People v. Brice, 49 Cal.2d 434, 437 [317 P.2d 961].) In evaluating the evidence the jury was bound by the instructions given as to the limited purpose for which certain evidence was admitted, but beyond that it could draw its own inferences, determine the probative weight of evidence, and select the appropriate penalty on the basis of its evaluation of the evidence. (People v. Brust, 47 Cal.2d 776, 787-790 [306 P.2d 480]; People v. Friend, 47 Cal.2d 749, 767-768 [306 P.2d 463].)
Joseph Spangler, an administrative officer for the California Adult Authority, was called as a witness for the defendant as an expert on the parole policies of the Adult Authority. He testified to the median time spent in prison by first degree murderers who had been paroled. He was then asked whether he had any information as to the parole of a person who had been convicted of murder, paroled, and convicted of another murder. Mr. Spangler answered that he knew of one such person, but the trial court did not allow him to tell the jury about that person since he had been convicted of two first degree murders and not of a second degree murder followed by a first degree murder. Three times the jury returned to the courtroom to ask about parole procedure, and at one of those times asked to have the entire transcript of Mr. Spangler’s testimony read to them. Defendant contends that it was proper for the jury to hear evidence as to how the Adult Authority would deal with a man twice convicted of murder (People v. Purvis, 52 Cal.2d 871, 885 [346 P.2d 22]), and that the interest of the jury in parole procedure indicated that the court’s error in excluding that evidence was prejudicial.
[97]*97The distinction between the paroling of a person convicted of two first degree murders and a person convicted of a second degree murder and then first degree murder would seem to be too fine to justify exclusion of the offered testimony. Any error, however, in excluding the testimony was not prejudicial, for evidence of a single example would not be sufficient by itself to show a general practice of the Adult Authority or how it would treat another recidivist murderer.
Over defendant’s objections hearsay statements were admitted of Eleanor Purvis, defendant’s second wife, for whose death defendant had previously been found guilty of second degree murder. Officers testified that Eleanor Purvis had made statements to them that she was afraid defendant was going to kill her, that defendant had beaten her, had held her under water in a bathtub, and deliberately burned her thigh and vagina with a cigarette. None of this testimony had been introduced at defendant’s trial in 1950 for the murder of Eleanor Purvis.
Although there may be “inquiry into relevant circumstances surrounding an earlier crime of which the defendant was convicted” (People v. Purvis, 52 Cal.2d 871, 881 [346 P.2d 22]), evidence of the earlier crime must meet the rules of admissibility governing proof of that crime or be otherwise properly admissible in the penalty proceeding. The attorney general contends that some ' of the hearsay statements of Eleanor Purvis can be admitted against defendant as his adoptive admissions. There was conflicting testimony whether defendant was present when the statements were made. Even if he were present, “Where his response is silence, evasion, or equivocation, it is for the trial court to determine in the first instance whether the accusation has been made under circumstances calling for a reply, whether the accused understood the statement, and whether his conduct or response was such as to give rise to an inference of acquiescence or guilty consciousness.” (People v. Simmons, 28 Cal.2d 699, 712 [172 P.2d 18]; see People v. Davis, 43 Cal.2d 661, 670 [276 P.2d 801] ; McBaine, California Evidence Manual 2d ed., § 934.) There is no evidence that would support such a determination. Furthermore there were no instructions given to the jury on evaluating adoptive admissions.
The Attorney General invokes People v. Merkouris, 52 Cal.2d 672, 682 [ 344 P.2d 1], and People v. Atchley, 53 Cal.2d 160, 172 [346 P.2d 764], for the proposition that the hearsay statements were admissible to show the state of mind of [98]*98Eleanor Purvis. In the Merkouris case, the victims’ statements indicating fear of the defendant were admitted to identify the defendant as the killer. In the Atchley ease, the statement was admissible on the issue of self-defense.
In the trial for the murder of Eleanor Purvis neither the identification of defendant as the killer nor a claim of self-defense was in issue. Nor had defendant put in issue any other fact to which the hearsay statements were relevant. Defendant’s defense in that trial was that he acted without premeditation and was therefore guilty of second degree murder only. Thus, even on the issue of guilt the state of mind of the victim would not have been relevant. In the present case the hearsay statements of Eleanor Purvis were admitted, not merely to establish defendant’s guilt of her murder but to influence the jury in a separate proceeding to determine the penalty for a subsequent murder. In determining the penalty for the murder of Hazel Wilson the state of mind of Eleanor Purvis has no probative value. Certainly any probative value it could conceivably have would be far outweighed by the highly prejudicial nature of the hearsay statements. Eleanor Purvis did not merely say she feared defendant. She related beatings and acts that could readily lead the jury to believe that defendant was so depraved he deserved the death penalty.
Defendant contends that certain hearsay statements of Hazel Wilson were also improperly admitted. Witnesses testified that Hazel Wilson had told them that she was afraid of defendant because he had killed his wife. In the trial for the murder of Hazel Wilson defendant also claimed that he had killed without premeditation. There was no issue of either identification or self-defense. There was thus no ground on which Hazel Wilson’s fear of defendant could be admitted even to prove defendant’s guilt let alone to aid the jury in fixing the penalty. It may be that an inference as to the victim’s conduct can be drawn from the victim’s state of mind, but certainly no permissible inference can be drawn therefrom as to defendant’s character or actions. Standing alone, the error in admitting this evidence might not be prejudicial. Considered, however, with the error in admitting the highly prejudicial hearsay statements of Eleanor Purvis and the improper use of the hearsay in the prosecutor’s argument to the jury the conclusion is inescapable that the purpose of introducing such testimony was to inflame the jury against defendant.
[99]*99The prosecutor argued to the jury as if the hearsay statements of Eleanor Purvis established the truth of the matter asserted, although those statements had been admitted only to show her state of mind toward defendant. In both his opening and closing arguments the prosecutor stated that defendant would take lighted cigarettes and burn Eleanor Purvis’ thighs and her vaginal tract. These highly inflammatory statements of defendant’s conduct could only have been made to persuade the jury that defendant was such a depraved person he deserved the death penalty. The prosecutor’s argument thus served to compound the original error in admitting these hearsay statements. Even if they could be admitted to show Eleanor Purvis’ state of mind, the prosecutor’s assumption in his argument that they were true would far exceed the bounds of proper argument. Particularly when guilt has been established and the question is one of life imprisonment or death must strict standards of fairness be observed. The serious errors both in the admission of evidence and the highly prejudicial misconduct of the prosecutor in his argument to the jury, deprived defendant of a fair trial on the issue of penalty and therefore compel a reversal. The judgment imposing the death penalty is reversed, and the cause is remanded for retrial and redetermination of the question of penalty only and for the pronouncement of a new sentence and judgment in accordance with such determination and the applicable law.
Gibson, C. J., Peters, J., White, J., and Dooling, J., concurred.