WILKINS, Justice:
Defendant was charged with one count of first degree murder in violation of Section 76-5-202(l)(h),1 the criminal information alleging defendant killed one Steven Losh on April 12, 1977, for the purpose of preventing the said Steven Losh from appearing as a witness against him in a pending trial in the District Court of Utah County in which defendant was charged with second degree murder. Defendant was tried on the first degree murder charge in a bifurcated hearing pursuant to Section 76-3-2072 before the District Court, Duchesne County, sitting with a jury of twelve members, which returned a unanimous verdict of guilty of first degree murder, and, after the hearing on the penalty, returned a unanimous verdict of death. From judgment entered on the verdicts, and the Court’s sentence of death by firing squad, defendant appeals.
The evidence at the guilt-determining phase of the trial showed that Steven Losh had been served a subpoena to appear as a witness on behalf of the State of Utah in a trial scheduled for April 13, 1977, in which, as noted, defendant had been charged with second degree murder in Utah County. One Lou Ann Ross was also named as a witness in the subpoena, but had not been served. To insure that Lou Ann Ross would not be served with the subpoena, defendant had taken her to a house trailer located in Red Creek, a wilderness area in [263]*263Duchesne County, Utah. Steven Losh had also agreed not to testify, and to stay at the trailer until the trial in Utah County against defendant was over. On April 12, 1977, Buddy Kummer, a friend of defendant drove defendant and Steven Losh in Kummer’s truck from American Fork, Utah, to the Red Creek area. According to Kummer’s testimony, the three men consumed approximately two cases of beer along the way. In addition, defendant was taking Preludin, an amphetamine, or “upper,” and was also drinking whiskey, and Steven Losh was taking Preludin and Valium, a tranquilizer, or “downer”. At some point along the way, Losh asked defendant for more Valium which the defendant refused to give him, as, he said, he needed it for his trial the next day. This caused Losh to become angry, and to “rub the defendant, in a way”. Specifically, Kummer testified that Losh had told defendant that he, Losh, could do six months in the county jail for contempt of court standing on his head, but that the defendant was going to spend ten years in the state prison. Losh asked defendant if he would be a “punk” for one of the inmates. When the truck arrived at the trailer in Red Creek where Lou Ann Ross and one Michael O’Neill were staying, the three men departed from the truck. Kummer testified that the events happened in the following manner:
Kummer went to the back of the trailer to empty his bladder, while Losh went to the front of the trailer, presumably for the same purpose. Kummer turned around, and bumped into defendant already coming out of the trailer. Defendant said something to Kummer about a hole. Defendant ran over to the truck and took Kummer’s gun out of the “jockey box”. Kummer thought he was coming at him, and ran into the trailer, telling O’Neill, who was just getting dressed, to stay in the trailer because, “something’s coming down”. He heard two shots, Losh yelling, “Don’t, Paul, don’t,” and also heard Losh’s footsteps as he ran around the trailer. Two more shots were fired, a pause, then another shot. Kummer looked out of the window and saw Losh lying on the ground, on his right side, and defendant bending over him with the gun in his hand. Defendant came into the trailer and said, “Come on, Bud, we’ve got a grave to dig.” Kummer went with defendant to an area behind a sagebrush where the two of them began digging a hole. As they were digging, defendant asked, “How fast can'Lou Ann run?” and “Are there any more shells?” When Kummer said there were no more shells for the gun, defendant said “It’s just as well, then, this way.” Before the grave was finished, defendant went back to the trailer, and O’Neill came out and helped Kummer finish digging the grave. Then all three men helped to carry and drag Losh’s body to the grave and cover it with earth, rocks and dead wood. When they went back to the trailer, Lou Ann Ross was cooking hamburgers, and defendant sat down and ate.
The testimony of Lou Ann Ross and Michael O’Neill did not differ substantially from Kummer’s. Lou Ann Ross also testified that she had heard Losh yell, while he was running around the trailer, “No, Paul, don’t, I am with you,” and that defendant had commented, during the time he was eating hamburgers, “He was a hard dying mother f_,” and had asked Lou Ann Ross to go into the trailer with him because “nothing makes me hornier than killing a man.”
The body of Steven Losh was not found by police for a month. On May 23, 1977, the State Medical Examiner, Doctor Serge Moore, performed an autopsy on the body. He testified that there were three gunshot wounds on the body, but because of the state of decay he could not tell at what range the shots were fired. One wound was in the base of the left thumb where a piece of schrapnel was found. The second bullet entered the decedent’s body from the back, just above the collar bone, and was found lodged at the base of the skull. The third bullet, which the Doctor described as the cause of death, entered Losh’s body through the left temple, just above and behind the ear, and was found in the right side of the decedent’s brain.
[264]*264The body was determined to be that of Steven Losh with the aid of his dental records.
Defendant testified in his own behalf. His testimony was that when he went into the trailer, he saw through the windows that Losh had picked up a piece of firewood, which defendant described as a club; that he was apprehensive that Losh would try to harm him; that he had taken the gun to defend himself; that when he accosted Losh with the weapon Losh took a step toward him but he did not raise the club; that defendant had then blacked out and remembered nothing until he was standing over Losh with the gun in his hand. Defendant also testified that he had been found guilty of the second degree murder in the previous trial, without the testimony of Losh and Ross.
Doctor Carl R. Peterson, a psychiatrist, testified that he had examined defendant and that he had formed an opinion, noted infra, which was based on the following elements: (1) that defendant had had no sleep for four or five days, during which time he had taken Preludin, Valium, and whiskey; (2) the great amount of whiskey, beer and Preludin alleged to have been consumed by defendant during the day of April 12, 1977; (3) defendant’s history of stuttering as a child, and his inability to express his emotions adequately; and (4) the pressures of his upcoming trial for second degree murder. The doctor expressed an opinion that defendant was in what he termed “rage reaction” at the time of the killing and could not have formed the requisite intent to kill Losh for the purpose of preventing him from testifying.
During the penalty phase of the trial, the State introduced evidence that defendant had been convicted in the past of burglary, forgery and auto theft for which he had spent a total of ten of his adult years in prison, and had first been in trouble with the law at the age of fourteen. Wayne Watson, Utah County prosecutor, related the evidence presented in the Utah County trial of defendant on the charge of second degree murder. He testified that the testimony had shown the following facts:
That on August 27, 1976, Samuel Bing-ham had picked up Steven Losh and defendant in his car outside the Caravan Lounge in American Fork, Utah. Steven Losh was bleeding from his ear, and the three decided to find the “guys that had beat up on Steve.” They eventually found a parked white pickup truck in which Sonny Cordova and Julian Cole were sitting. Bingham testified that he, Losh, and defendant got out of the ear; that Bingham walked toward the driver’s seat of the truck, but that he saw defendant behind him and saw that he had a gun. Bingham went back to his car. Defendant went up to the driver’s seat of the truck and shot Sonny Cordova once through the head, and then shot Julian Cole, who had thrown up his arm to defend himself. Sonny Cordova died as a result of the gunshot wound; Julian Cole lived.
Janet Bezzant, Rummer’s girlfriend, also testified during the penalty hearing that defendant had stated to her on the morning of April 13, 1977, that after Losh fell down, defendant had put the gun to his head and fired. .
Defendant introduced the following evidence at the penalty hearing:
A written psychiatric evaluation by Doctor Carl R. Peterson, in essence paralleling his oral testimony, described ante; testimony of Guy Moore, a friend of the defendant, who testified that he had never seen defendant commit an act of violence, and that it was his opinion that defendant was incapable of a premeditated murder; testimony of Phyllis Wilson Brown, defendant’s ex-wife, who testified that defendant was a good influence on her two children of a previous marriage and on a child of their marriage; and defendant’s testimony, asking for life imprisonment rather than death, so that he could visit his children, and raise them as best he could under the circumstances. . Defendant was 34 years old at the time of this trial.
Defendant cites, as prejudicial error, the Court’s failure to include in its voir dire of the jury panel, a question as to the [265]*265veniremen’s beliefs on the death penalty. It is noted that neither the State nor the defendant requested such an inquiry, and no objection was made to the omission. Nevertheless, as this is a capital case, we consider the defendant’s contention on appeal.3 Though defendant does not cite the case of Witherspoon v. United States, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968) we, sua sponte, pursue an analysis of it. There the Supreme Court held that:
[A] sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction. [Emphasis in original]
But, the Court in Witherspoon also stated that nothing precludes a state from excluding, for cause, prospective jurors from serving whose objections to the death penalty would preclude them from finding a defendant guilty of a capital crime. Of course, Witherspoon acknowledges that general objections and scruples against the death penalty do not by themselves necessarily preclude a juror from finding guilt in a proper case.
Here, no prospective jurors were excluded because their objections to the death penalty precluded their finding of guilt regardless of “the facts and circumstances which might emerge in the course of proceedings.” 4 As no inquiry was made by the Court, certainly no jurors were excluded on the ground that they might be prejudiced in favor of the defendant, and we fail to perceive how defendant could be prejudiced by the omission of such a Witherspoon inquiry.
Defendant does cite State v. Belwood, 27 Utah 2d 214, 494 P.2d 519 (1972) as supportive of his position that the Court’s failure to inquire of the panel as to their beliefs on the death penalty violated his constitutional rights.
The Court asked each juror the following question:
Do you have any reason to believe you can’t listen to the evidence here in court and the law as I give it to you and based solely on that evidence and that law and nothing else render a fair and just verdict as between the parties.
Any implications that the jurors must render a verdict of death in every case in which a verdict of guilt is determined, as was the impression found to have been made by the District Court’s inquiry in Bel-wood, are certainly not present here. We conclude Belwood therefore is no authority for defendant’s point.
Defendant presented two theories in his defense. First, that his consumption of enormous amounts of drugs and alcohol precluded him from being capable of forming any requisite intent to commit the crime. Defendant presented the expert testimony of Doctor Peterson, as noted earlier, to support this theory. Secondly, defendant requested four instructions on the law of self-defense, which the Court refused. Defendant argues that the Court erred in refusing to give these instructions.
Defendant is entitled to have the jury instructed on his theory of the crime if there is any basis in the evidence to support that theory. In State v. Castillo, 23 Utah 2d 70, 457 P.2d 618 (1969), this Court drew the guidelines in this area:
If the defendant’s evidence, although in material conflict with the State’s proof, be such that the jury may entertain a reasonable doubt as to whether or not he acted in self-defense, he is entitled to have the jury instructed fully and clearly on the law of self-defense. Conversely, if all reasonable men must conclude that the evidence is so slight as to be incapable of raising a reasonable doubt [266]*266in the jury’s mind as to whether a defendant accused of a crime acted in self-defense, tendered instructions thereon are properly refused. [457 P.2d at 620]
The law of self, defense is governed by Section 76-2-402, which provides in pertinent part:
(1) A person is justified in threatening or using force against another when and to the extent that he reasonably believes that such force is necessary to defend himself or a third person against such other’s imminent use of unlawful force; however, a person is justified in using force which is intended or likely to cause death or serious bodily injury only if he reasonably believes that the force is necessary to prevent death or serious bodily injury to himself or a third person, or to prevent the commission of a forcible felony. [Emphasis added.]
We find no credible evidence that defendant might have been justified in using deadly force to protect himself or that he reasonably believed himself to be in danger. His testimony was that he was inside the trailer when he saw Losh pick up a club. If this were true, he would only have had to stay in the trailer to prevent Losh from harming him, even if he believed he was in danger. He also testified that Losh had not threatened him with the club. His testimony on cross-examination was:
A Well, as I came around the corner Steve turned and started towards me.
Q With a half step?
A Yes.
Q Did he say anything?
A No, he never.
Q Did he raise the club?
A Not that I recall.
Q Did you hit him with that shot?
A I don’t believe so.
Q Then what did he do?
A The best I can remember he run.
There is no evidence capable of raising a reasonable doubt in the jury’s mind as to whether the defendant acted in self-defense; on the contrary, the evidence unmistakably shows instead that defendant was the aggressor. The instructions covering the law of self-defense were therefore properly refused.
Defendant contends that the Court erred in admitting a film of the premises where the killing took place, and allowing it to be viewed by the jury. Defendant argues that the film was prejudicial to defendant, and he describes it as an attempt to reenact the crime, in front of the jury, with the “cameraman” trying to simulate the actions of the defendant. The transcript shows that the Court admitted the film for illustrative purposes only, and as an alternative to a viewing by the jury of the area in Red Creek. Under Rule 45, Utah Rules of Evidence, the admission of evidence is within the discretion of the District Court. We have reviewed the film and find that it is not in any manner an attempt to reenact the crime. It is merely a film of the area, where the killing occurred, including the trailer, the sagebrush, and a hole in the ground, none of which was at all inflammatory or prejudicial to defendant. There is no basis for defendant’s argument that the Court abused its discretion in allowing the jury to view the film.
Defendant also argues that the evidence does not support the jury's verdict that defendant killed Steven Losh for the purpose of preventing him from testifying.
Defendant asserts that Losh would not have been a competent witness in defendant’s second degree murder trial, because on the night defendant killed Sonny Cordo-va, Losh was intoxicated on alcohol and drugs and could not report what happened. And to illustrate this point, defendant contends that portions of Losh’s testimony at the preliminary hearing in that matter, which the Court refused to admit in the instant case, would show that Losh remembered nothing of the events of that night.
We believe that the Legislature, in defining and categorizing the killing of a witness by another as first degree murder, recognized that such a killing is a particularly heinous and serious crime because it attacks the very heart of our system of justice. We [267]*267do not believe that it was within the intent of the Legislature that the State be required to prove that the witness was a competent witness. To so hold would emasculate the statute, for until a witness is called to testify, it may not be known whether he is competent or not.
The evidence at the trial for second degree murder shows that Losh was present when defendant shot Sonny Cordova. Losh therefore knew, or it was reasonably believed that he knew, material facts pertaining to that charge, and hence, he had been subpoenaed to testify concerning those facts. Regardless of what the transcript of the preliminary hearing showed in the Cor-dova matter, the Court did not err in excluding that evidence here as it was immaterial for reasons just noted.
But defendant persists that he knew that Losh remembered nothing of the events concerning Cordova that night; that defendant did not fear Losh’s testimony; and that further, the evidence as a whole is insufficient to support an element of the crime in this present case. In sum, defendant argues that he did not kill Losh for the purpose of preventing him from testifying, but that he was simply in a rage because Losh had called him names.
Defendant’s intent, or purpose, is a fact for the determination of the jury.
In order to set aside a jury verdict, the evidence must appear so inconclusive or unsatisfactory that reasonable minds acting fairly upon it must have entertained a reasonable doubt that the defendant committed the crime.5
We do not find the evidence in this case to be of such quality that reasonable minds must have entertained a reasonable doubt as to defendant’s guilt. Several statements attributed to defendant show that defendant feared that Losh would testify against him, and that it was in fact his purpose to kill him to prevent that testimony. Janet Bezzant testified that defendant told her he had killed Losh to keep him quiet. The statements made by defendant to Kummer shortly after the killing of Losh, noted ante, are probative of demonstrating that the killing was for this purpose. But more importantly, defendant admitted that it was his intent to secrete Losh in Red Creek for the purpose of preventing his testimony. The jury could therefore find, as it did, beyond a reasonable doubt, from all the evidence which was substantial and credible, and the fair inferences from that evidence6 that the killing of Losh was performed for the purpose of presenting Losh’s testimony.
Defendant also contends that the Utah death penalty statutes are unconstitutional and do not meet the requirements of Fur-man v. Georgia,7 Gregg v. Georgia,8 Proffitt v. Florida,9 and Jurek v. Texas,10 on the theory that our statutes do not suitably direct and limit the discretion of the sentencing body so as to minimize the risk of wholly arbitrary and capricious action on the part of the jury.
Recently this Court in the case of State v. Pierre, Utah, 572 P.2d 1338 (1977),11 meas[268]*268ured the Utah statutes against constitutional requirements as enunciated by the U. S. Supreme Court in these four cases. We there held that the Utah legal system meets the constitutional tests of the U. S. Supreme Court cases cited above, because . . it is structured to provide reasonably that the unique and irretrievable sanction of death will be mandated by its provisions and processes only in extreme and unusually serious and shocking crimes.” [572 P.2d at 1356.] And further, Section 76-3-206(2), which provides for automatic and mandatory review of all cases in which the death penalty is imposed, together with our rule that in capital cases this Court, sua sponte, considers manifest and prejudicial error though such error may neither be assigned nor argued,12 combine to provide for a comprehensive review of the entire case, including the sentence of death, to determine if that sentence resulted from prejudice or arbitrary action or was disproportionate and excessive in relation to the offense for which defendant was convicted.
But defendant specifically asserts that where (1) the jury is not required to articulate its justification for the imposition of the death penalty by means of specific findings thereon which the appellate court could then review, and (2) the jury is not entirely bound to base the penalty on those aggravating circumstances promulgated by the Legislature, (for under Section 76-3-20713 the jury may consider any aggravating factor which the District Court, in its discretion, finds to have probative value) and (3) the introduction of such aggravating factors is not governed by the exclusionary rules of evidence,14 then the jury has unlimited discretion in imposing the death penalty, which was the very evil condemned by the U. S. Supreme Court in Furman. Further, defendant argues, even automatic appellate review does not vitiate the possibility of arbitrary and capricious action on the part of an aberrant jury since the reviewing court must speculate about the bases on which the jury made its determination.
Concerning (1) of the preceding paragraph, this Court in Pierre, ante, specifically stated:
In Utah, the burden being on the state to convince the jury that the death penalty is appropriate by proof of total aggravation outweighing total mitigation, though written findings are not required, the basic concern mentioned by Mr. Justice Stewart in Gregg, at 428 U.S. 189, 96 S.Ct. 2932, “to minimize the risk of wholly arbitrary and capricious action” is more fully satisfied with respect to a standard of proof, we submit, than those standards approved in Gregg and Jurek; and particularly when the standard of proof beyond a reasonable doubt obtains in the guilt phase in Utah to find the crime of murder of which aggravating circumstances are a part. [572 P.2d at 1348.]
We consider these comments dispositive of defendant’s argument on this point.
We now discuss the other points just mentioned. We believe the primary concerns of defendant can be centralized in his contention that hearsay evidence in the penalty phase was allowed (though no objection was made thereto) attributing to defendant inaccurate and prejudicial comments about the killing of Sonny Cordova at the Utah County trial where defendant was convicted of second degree murder, which inflamed the jury here. Specifically, Wayne Watson, a deputy Utah County attorney, testified at the penalty phase in this present case that one Samuel Bingham, an eye witness to the Sonny Cordova murder, [269]*269testified in that trial that defendant had said within Bingham’s hearing: “I just head-shot two f_for messing with my brother”. In fact, defendant contends that Bingham said in quoting defendant: “Something to the effect of: T shot them both in the head,’ or, T head-shot both of them,’ or something to that effect”. Defendant is correct in this contention as revealed by a transcript of Bingham’s testimony made for purposes of this appeal. That transcript was not available nor requested at the penalty phase, and as noted, no objection to this testimony was entered there. We consider this matter and all of its implications, however, even though no error was assigned below, because this is a case involving an imposition of the death penalty and our consideration is required in order to make a meaningful review.
Before addressing this matter fully we shall dispose of a portion of it now— namely, defendant’s contention that Section 76-3-207(1) is unconstitutional because it allows a relaxation of the standards of the rules of evidence by allowing evidence to be admitted regardless of the exclusionary rules. We think not, because the drafters of the Model Penal Code (which our Legislature considered in drafting our Criminal Code in 1973) considered this problem and concluded:
If a unitary procedure is used the determination of the punishment must be based on less than all the evidence that has a bearing on that issue, such for example, as a previous criminal record of the accused, or evidence must be admitted on the ground that it is relevant to sentence, though it would be excluded as irrelevant or prejudicial with respect to guilt or innocence alone. Trial lawyers understandably have little confidence in a solution that admits evidence and trusts to an instruction to the jury that it should be considered only in determining the penalty and disregarded in assessing guilt.
[T]he obvious solution . . . is to bifurcate the proceeding, abiding strictly by the rules of evidence until and unless there is a conviction, but once guilt has been determined opening the record to the further information that is relevant to sentence. [A.L.I. Model Penal Code, § 201.6, Comment 5, pp. 74-75 (Tent. Draft No. 9, 1959).]
The United States Supreme Court also observed in Gregg:
Jury sentencing has been considered desirable in capital cases in order to “maintain a link between contemporary community values and the penal system — a link without which the determination of punishment could hardly reflect ‘the evolving standards of decency that mark the progress of a maturing society.’ ” [428 U.S. at 190, 96 S.Ct. at 2933, quoting Witherspoon, supra, which quoted Trop v. Dulles, 356 U.S. 86 at 101, 78 S.Ct. 590, 2 L.Ed.2d 630.]
* * * * * *
When a human life is at stake and when the jury must have information prejudicial to the question of guilt but relevant to the question of penalty, in order to impose a rational sentence a bifurcated system is more likely to ensure elimination of the constitutional deficiencies identified in Furman. [428 U.S. at 191-192, 96 S.Ct. at 2934. Emphasis added.]
* * * % * *
[S]o long as the evidence introduced and the arguments made at the presentence hearing do not prejudice a defendant, it is preferable not to impose restrictions. We think it desirable for the jury to have as much information before it as possible when it makes the sentencing decision. [428 U.S. at 203-04, 96 S.Ct. at 2939. Emphasis added.]
So, we do not agree with defendant that Section 76-3-207(1) is constitutionally infirm, per se, because it does not necessarily require application of the exclusionary rules of evidence.
But, let us return to the larger aspect of the matter in this case; viz., was Watson's inaccurate testimony prejudicial error in the penalty phase? We conclude that it was and particularly when this error [270]*270is considered together with the failure to instruct on burden of proof discussed infra.
Focusing on this inaccurate testimony being prejudicial, we note the colloquy that transpired in the District Court as revealed by the record:
The Court: “Mr. Watson, you are an attorney. You know what hearsay upon hearsay is, do you?”
Watson: “Yes, Sir.”
The Court: “I will ask you — under the law hearsay evidence is admissible, but I will ask you not to go into hearsay upon hearsay. The probative value of that becomes quite tenuous, Mr. Wooton.”
Mr. Wooton, the prosecutor, responded that he understood. Thereafter the prosecutor asked Mr. Watson: “Tell us what Mr. Bingham testified to as far as that conversation was concerned.”
Watson responded: “Mr. Bingham testified to my recollection that he was present when Mr. Brown encountered Lou Ann Ross. Mr. Brown stated to her, T just headshot two f_for messing with my brother.’ ”
Upon cross-examination of Mr. Watson by defense counsel the following exchange occurred:
Q. “Now you were admonished by the court not to relate hearsay on hearsay.”
A. “Yes.”
Q. “Before you testified you consulted with Mr. Wooton with regard to that testimony, didn’t you?”
A. “Yes, Sir.”
Q. “Then after that consultation you proceeded to tell the jury that which you have told them?”
A. “I did, sir.”
Q. “If the record reflects to the contrary, would it not, Mr. Watson, as an attorney — that is, if the record in that other proceeding reflected Mr. Bingham did not testify that — to that, then would it not be in fact hearsay upon hearsay?”
A. “Yes sir, it would.”
Whether the testimony of Watson was accurate or not, it was hearsay on admissible hearsay. The testimony of Bingham at the prior trial was hearsay but admissible under an exception to the hearsay rule as an admission. See Rule 63(6) Utah Rules of Evidence. In the instant case, though, the District Court significantly ruled that hearsay on hearsay would not be admissible because of its lack of probative value. The prosecutor and his attorney-witness, however, did not honor this ruling.
We also consider a matter alluded to ante, not raised below nor on appeal but discovered by this Court’s review, relating to failure by the District Court to give an instruction on the burden of proof necessary for a verdict of death in the penalty phase. In State v. Pierre, ante, at 572 P.2d 1347-48, this Court stated:
We hold that in the penalty phase of capital offenses the burden of proof necessary for a verdict of death over life imprisonment is on the State and that the totality of evidence of aggravating circumstances must therefore outweigh the totality of mitigating circumstances: [Emphasis in original.]15
We hold failure to instruct that the State in this case sustained the burden of proof in the penalty phase was prejudicial error. Without that instruction, the jury was not suitably directed on a most basic matter required by Pierre, and hence the standard required therein in cases involving “the unique and irretrievable sanction of death” that the “risk of discrimination, arbitrariness, caprice, and irrationality [should be] reduced to a minimum” was not met. [572 P.2d at 1356.]
[271]*271We cannot say that the errors that occurred here were harmless.16 An inflammatory obscenity was inaccurately imputed to the defendant in the penalty phase, which arose from a violation of the District Court’s Order. In this same penalty phase which lasted for. just one hour and during which seven witnesses testified, a psychiatrist’s report was received into evidence, counsel for the State and defense gave closing arguments, and the Court read instructions to the jury, this inflammatory obscenity became excessively vivified — and in the crucible of a single but awesome decision whether the defendant was to live by sentence of life imprisonment or to die by sentence of execution by the' State.
In the guilt-determining phase of this trial, the State proved that the defendant committed a shocking and violent crime of murder in the first degree for the purpose of preventing a witness from testifying. Once the jury found that, then another decision in another hearing was required to determine which one of the two most serious penalties in law would be imposed.
Scrupulous care must be exercised by the State in capital cases in both the guilt-determining and penalty phases in presentation of evidence and argument because of the acknowledged uniqueness of the death penalty. Mr. Justice Stevens’ words in Gardner v. Florida, 430 U.S. 349, 357-58, 97 S.Ct. 1197, 1204, 51 L.Ed.2d 393 (1976) picture this uniqueness:
[F]ive Members of the Court have now expressly recognized that death is a different kind of punishment from any other which may be imposed in this country. Gregg v. Georgia, 428 U.S. 153, 181-188, 96 S.Ct. 2909, 2929-2932 (opinion of Stewart, Powell, and Stevens, JJ.) see id., at 231-241, 96 S.Ct. 2971, at 2973-2977 (Marshall, J., dissenting); Furman v. Georgia, 408 U.S. at 286-291, 92 S.Ct. [2726], at 2750-2753 (Brennan, J., concurring), 306-310, 92 S.Ct. [2726], at 2760-2763 (Stewart, J., concurring) see id., at 314-371, 92 S.Ct. [2726], at 2765-2794 (Marshall, J., concurring). From the point of view of the defendant, it is different in both its severity and its finality. From the point of view of society, the action of the sovereign in taking the life of one of its citizens also differs dramatically from any other legitimate state action. It is of vital importance to the defendant and to the community that any decision to impose the death sentence be, and appear to be, based on reason rather than caprice or emotion.
And that scrupulous care must particularly extend to evidence introduced by the State in the penalty phase where the evidence is probative but would not be admissible under the exclusionary rules of evidence in the guilt-determining phase. When the State offers this type of evidence in the penalty phase, it must be certain that it is not prejudicial to the defendant — prejudicial, of course, in a legal sense. See Gregg, ante, where Mr. Justice Stewart’s quoted language bears repeating:
[S]o long as the evidence introduced . at the presentence hearing [does] not prejudice a defendant, it is preferable not to impose restrictions. [Emphasis added.]
Section 76-3-207(3) states:
Upon any appeal by the defendant where the sentence is of death, the supreme court, if it finds prejudicial error in the sentencing proceeding only, may set aside the sentence of death and remand the case to the trial court, in which event the trial court shall impose the sentence of life imprisonment.
As we have determined that there are two prejudicial errors that occurred in the penalty phase here, this case, pursuant to statute, is remanded to the District Court for the purpose of having that Court impose the sentence of life imprisonment upon the defendant. Affirmed in all other respects.