WEBER, C. J.
Due to the severe and prolonged illness of Mr. Justice FRICK, the consideration of this ease has been delayed. Happily the health of Justice FRICK is now restored and each member of this court has taken part in the decision of this case and given it the careful consideration which its gravity demands.
Omer R. Woods was charged with having murdered his wife, was convicted of murder in the first degree, and appeals from a judgment inflicting the death penalty.
With his wife and 16 year old daughter, the appellant resided at the Pauline apartments at the corner of First South [401] and Third East streets, Salt Lake City. Od January 9, 1922, between 1 and 2 o’clock p. m., a tenant living immediately above the apartment occupied by appellant discovered smoke • coming from the apartment below. She notified the proprietress of the apartment house, who went to the door of the Woods apartment, rang the bell with one hand, and knocked on the door with the other. She had a bunch of keys in her hand and’could hear coughing on the inside. Before she could find the proper key to the apartment door, it was opened from the inside, and Omer R. Woods, the defendant staggered out and fell to the floor. In the meantime the fire department was notified and arrived upon the scene at 1:57 p. m. When asked by one of the women present what had happened, Woods said that two burglars came to his apartment, one a tall man and the other short; that they knocked him down, bound him hand and foot, bound and gagged his wife, and set fire to her. In answer to a question as to where Mrs. Woods wp,s, he said, “In the bedroom.” After the arrival of the fire department and the extinguishing of the fire, Mrs. Woods was found in the bedroom of the apartment lying on the bed, her feet bound, her hands tied behind her back, a gag in her mouth, her body badly burned, her life extinct. The odor of benzine was detected on the body and clothing and upon the bedclothes. Dr. Galligan, who made an examination of the body before its removal from the apartment, testified that when he arrived “there was the remains of a smouldering fire and part of the bedclothing, and the clothing of the woman was still afire when I arrived, and the body was badly burned; the woman was dead.” After describing how the woman had been tied and the extent of the burns on her body, limbs, and face, and after testifying that he performed an autopsy on the body, he stated that in his opinion death resulted from either strangulation or from concussion of the brain due to an extraneous injury. From the fact that there was no evidence of inspiration of smoke or other gases and from the character of the burns, he eon. eluded she was dead before she was placed on the bed
A quart bottle of benzine was purchased at a drug store [402] by appellant at some time between 11:30 a. m. and 12:30 p. m. on the day of the homicide. The clerk who sold the benzine identified the accused as the purchaser. The clerk said that when he came into the store the defendant asked for a small bottle of benzine. A pint having been produced, the defendant said: “Better give me a quart; we are doing a lot of cleaning at our house. ’ ’ Thereupon the quart bottle of benzine was sold and delivered to the defendant. Defendant, in his testimony, admitted procuring the benzine, but claimed he bought it on January 7th.
Representatives of the police department arrived upon the scene about the same time that the fire department appeared. The defendant was promptly arrested and taken to the police headquarters, where he made a statement substantially similar to that to which he testified at the trial. As a witness in his own behalf, he testified in substance that on January 9, 1922, the day of the murder, he went home at 12 o’clock noon, ate lunch, went to the street and posted some letters, returned home, smoked, a cigar, and went into the bathroom, and was shaving when the doorbell rang.
"X went to open the door, and there were two men at the door. The larger man was in front, and just as I opened the door he had hold of the other knoh, and as I remember he set his foot inside the door. He had hold of the knoh with his left hand, and he shoved a gun in my face or right next to my ear, just helow my face, and said, ‘We want your money,’ and from there he kind of backed me toward the bathroom — probably inside of the door, or probably at the edge of the doot, something like that. I don’t remember just where it was; and as he did that the smaller fellow rushed behind him and went on into the living room, and as he did that the fellow who had the gun on me stepped toward the living room backwards. I don’t know whether he told me to follow him up, or what he did say, hut anyway, as he stepped backwards toward the living room, X stepped forward toward him. He still held the gun on me. The other, the smaller fellow, had gone on into the dining room. I was about in the door. I don’t know just Where. I think I was a little more inside of the living room than I was in the hallway, * * * My wife was standing at or near the table, and apparently had just begun or was fixing to clean up the table. I don’t think she had yet. She might have moved something, but I don’t know whether she had or not, because I had been in the bathroom; but anyway she was there, and the little fellow had gone over to her and was [403] throwing a towel or rug or something over her head like. I told him to stop that. I said: ‘Don’t hurt my wife; you can have my money or anything you want, hut don’t hurt my wife.’ I started to advance, and this other fellow shoved me back and hit me and knocked me down, and from that he rushed me on into the bathroom while I was on my hands and feet, trying to get up. * * * When he knocked me down I fell backwards and caught myself with my hands like this; and just as I was down this way he shoved me along. I remember going over this way and on into the bathroom. Then, when I was in there, he turned me over, and I said, ‘Don’t hurt me’ or something. I don’t remember just what I did say, because I was very much excited. And it was just a little while until this smaller fellow came in, and he threw down something to tie me with. ‘Tie him with this,’ he says, or something like that. Anyway, they proceeded to tie me with a cord. I wouldn’t be sure that he said, ‘Tie him with this,’ but something about tying. I don’t know just what he said. They proceeded to tie me. First they fastened my feet, and then they pulled my feet up in this direction and put my arm around the leg of the bathtub and tied my hands together like this; and then they tied a towel or something around my mouth, a gag, and tied it tight. Then they went out, and while they were gone I commenced moving my hands and my feet, trying to loosen the cord. I was very much stunned from the blow, because he gave me a pretty hard blow, and that stunned me and made me feel dizzy. While I don’t think I was totally unconscious, I was dazed from the blow, stunned like. Well, they went out, and they were gone a few minutes, and then they came back in there and went through my pockets here (indicating), and said, ‘Where is your money?’ or something; I told them, and they took my money out of my front pocket. And then they looked in the clothes closet, throwing a lot of stuff out of there. My head was next to the door, and they threw things over my head. X don’t know what they were looking for, but anyway there was a lot of dirty clothes in there, and they threw them out, and they looked around awhile, but not very long. They were not in there very long, and then they went out, and they shut the bathroom door as they went out, and I didn’t see them after that time.”
Other evidence in the case will be referred to hereinafter, but the foregoing presents the more important parts of the testimony.
On this record, appellant’s counsel insist that “it is more than doubtful if the circumstances proven are sufficient to support a conviction” under the rule that “in order to justify a conviction upon circumstantial evidence the evidence must not only be consistent with the guilt of the defendant [404] but inconsistent with every other reasonable hypothesis.’' Counsel further say that—
“When the justices of this court of last resort shall have read this record, we believe they will close their perusal of it in a state of doubt and wonderment as to Why and by whom the offense was committed.”
"With patience and care we have read the record, and we are in a state of neither doubt nor wonderment. Why the offense was committed is a problem not difficult of solution, nor have we any doubt whatever by whom the crime was committed. Evidence tending to prove motive was furnished by the state. Proof of motive, however, is not indispensable to conviction.
“Evidence of motive is sometimes of assistance in removing doubt, and completing proof which might otherwise be unsatisfactory, and that motive may either be shown by positive evidence, or gleaned from the facts and surroundings of the act. The motive then becomes a circumstance, but nothing more than a circumstance, to be considered by the jury, and its absence is equally a circumstance in favor of the accused, to be given such weight as it deems proper.” People v. Durrant, 116 Cal. 179, 48 Pac. 76.
For some years the defendant was in the government service. In 1920 he was with the Treasury Department in the estate tax division with headquarters at Boise, Idaho. In the early part of July he was transferred to Salt Lake City. His wife had never lived with him in Idaho, nor was she ever in Salt Lake City before September, 1920. Before leaving Idaho in July, the defendant secured an insurance policy insuring himself against accident, his wife being named as beneficiary in case of loss of life by accident. He also obtained a policy insuring his wife against loss resulting from bodily injuries: (1) While riding as a passenger in a railway passenger car;-(2) while a passenger in a passenger elevator, and (3) by reason and in consequence of the burning of a building, providing the insured was therein at the commencement of the fire, and in case of loss of life the insurance became payable to her husband in the sum of $10,000. The annual premium on this policy was paid in 1921, and it was in force and effect at the time of the murder. On December 21, 1921, the defendant procured further insurance of his wife against acci[405] dent, he being the beneficiary in the event of loss of life by accidental means in the sum of $3,000 with double indemnity or $6,000 if loss of life resulted “in consequence of the burning of any building while the insured is therein. ’ ’
The evidence fully justified the jury in finding that this $16,000 accident insurance recoverable by the defendant in case of the loss of life of his wife in a particular manner was the motive for the murder. The evidence also justified the finding that there was preparation for the crime as shown by the purchase of benzine with which ■ the clothing of the murdered woman and the bedclothing were saturated. The defendant was in the apartment when the murder was committed.
Such is the substance of the case against Woods. Then comes the story told by him. His counsel argue that—
“It Is no more improbable or unreasonable to suppose that two men came into this apartment at tbe time and in tbe manner and under tbe circumstances stated by tbe defendant and committed this offense, than it is to believe that this defendant .committed tbe offense at tbe time and in the manner and under the circumstances as claimed by tbe state.”
We think otherwise. So did the jury. It is highly improbable that ttvo strangers would at high noon enter a tenanted apartment house in a populous part of the city for the purpose of robbing some of the occupants. Defendant says they rang the bell of the door of his apartment; that he went to the door and opened it, when he was confronted by a tall stranger who shoved a gun in his face and said, “We want your money,” and then a smaller stranger rushed in, went into the living room, and “as he did that the fellow who had the gun on me stepped toward the living room.” “I stepped forward toward him. He still held the gun on me,” the smaller stranger having gone into the dining room. Mrs. Woods was in the dining room, “and the little fellow had gone over to her and was throwing a towel or rug or something over her head like. I told him to stop. I said: ‘Don’t hurt my wife. You can have my money or anything you want, but don’t hurt my wife.’ ” Defendant then started to advance, when he was knocked down by the tall robber and [406] rushed into the bathroom. During all this time before he was stunned by the alleged blow which felled him, defendant could easily have given the alarm and aroused other occupants of the apartment house. Mrs. Woods must have heard the comments of the stranger and the pleading of her husband that she be not mistreated. She must have noticed the approach of the other robber. She made no attempt at flight— no attempt to escape through either of the doors of the apartment. Se stood there like a statue, making no outcry. Can it be possible that she was literally paralyzed with fright, her muscles paralyzed so she could not move, her throat so she could not scream? In the meantime defendant is bound and gagged while offering a feeble resistance. The robbers then left the bathroom for a few moments. Eeturning, they asked defendant where his money was. He testified: “I told them. Then they took my money out of my front pocket.” He testified that $75 was taken out of his front pocket. When searched at the police station, $100 was found in his hip pocket. As they seemed to be looking for money only, the strangers did not relieve their victim of his watch. After taking his money, the robbers looked into the clothes chest, from which some soiled clothes were thrown, and, in the language of defendant: “They looked around awhile, but not very long. They were not in there very long, and then they went out and they shut the bathroom door as they went out, and I didn’t see them after that time.”
Here it becomes pertinent to inquire what could have induced these strangers, these robbers, to murder Mrs. Woods. If they possibly were known to Mrs. Woods, they may have committed murder to conceal the crime.of robbery. That is a violent presumption, but suppose they murdered her to prevent identification by her in case of arrest. What purpose could they have in placing her upon the bed, bound hand and foot and gagged, and then making the bed her funeral pyre? And why would the robbers kill and burn the woman and not the man?
The defendant’s astounding story is unbelievable. The jury did not believe it and could not as reasonable men ac-[407] eept it as true. And unless they believed defendant’s incredible tale, they could have no doubt whatever of his guilt.
In discussing the assignments of error counsel aver that during the cross-examination of defendant the prosecutor’s conduct and many of his questions were unfair and prejudicial to defendant. It is true that some of the cross-examination was argumentative, that useless repetition occurred, due to the apparent zeal of the prosecutor and his determination to present every particle of evidence tending to strengthen the prosecution; but in view of the convincing and conclusive evidence of defendant’s guilt we cannot say that the cross-examination contained reversible error.
While the defendant was on the witness stand, he was cross-examined with reference to certain conversation he had with the witness Yadney, and was asked whether he did not say to Yadney that he had come in contact with an estate left by a man in Idaho who had surviving two female relatives, and that it was supposed that the decedent had executed a deed giving his property to these two relatives, but that the deed could not be found, and that he (defendant) had an attorney in American Falls who would sign a deed with the signature of the decedent and put an acknowledgment on that deed, and that Yadney could make some money by selling the deed to the two female relatives; also, whether defendant did not say to Yadney, after having stated this proposition, “I have another job to pull off which will pay more money. ’ ’
After the question relating to the Idaho deed had been answered, the question was objected to; but no motion to strike the answer was made in which he denied having had such conversation. After defendant was asked whether he had not told Yadney that “I have another job to pull off which will pay more money,” counsel for defendant said, “I have no objection to that.” Thereafter Yadney was placed on the stand and was permitted to answer an impeaching question in regard to the deeds, and that the defendant had said to him that he had another job to pull off which would pay more money.
[408] Suppose Woods had said that he had another job to pull-off, another crime to commit, and suppose further that with Nadney’s help he had committed such crime — suppose he had committed forgery as claimed to have been proposed — that would not have been admissible as proof to prove the murder by him of his wife. Proof of such crimes, independent and disconnected, would not be competent evidence as tending to show that defendant* had committed the particular crime of which he was accused.
A medical prescription procured and used by defendant was another instance of immaterial evidence that was introduced. It was foreign to any issue in the case.
Again, a telegram from a woman at Boise, saying that some one had threatened to notify headquarters at Washington if defendant did not pay some one some money, was wholly immaterial. The telegram did not tend to prove anything either for or against the defendant. It was-wholly harmless and of no consequence.
What is criticized by counsel as a most extraordinary and prejudicial occurrence in the course of the trial was this question asked of defendant on cross-examination, “And did you tell your attorney that you were insane?” “I did not,” was the answer. After the question had been answered, an ob-' jection was interposed by the attorney for defendant in which it was stated “A client does Aot have to answer anything like that, what he tells his attorney or what his attorney told him.” No motion was made to strike the question and answer. To the statement of defendant’s counsel the district attorney replied: “I think that is wrong. The attorney can’t be interrogated with reference to what the client has told him but the client may.” To this opposing counsel replied, “Oh, I withdraw the objection.”
Whether defendant’s attorney agreed to this novel and unique proposition of law, or whether he thought the answer was of advantage to defendant, we know not; but whatever the purpose' of withdrawing the objection, the error would not have been harmful.
It appears that during their examination the jurors had [409] been interrogated on voir dire by the defense as to whether they would follow the instruction of the court should the court instruct them to bring in a verdict for defendant on the ground of insanity. The defense of insanity having thus been suggested to the jury, the unequivocal denial by defendant that he had ever thought of or suggested such a defense was helpful rather than harmful to him.
Mr. Chamberlain, an assistant cashier of the National Copper Bank, testifying as a witness for the state, said that he, in connection with other of the bank officers, had supervision over the safety deposit box on the records in the name of O. R. Woods, the defendant. The district attorney then requested the witness to ascertain whether that safety deposit box contained some accident insurance policies. When the accident insurance policies had been taken by the bank officials from the safety deposit box of the defendant and were produced in court, .they were objected to on the ground that “they went down to the safety deposit box and got these private papers; they were illegally secured”; that “they are incompetent, irrelevant, and immaterial,” and were obtained in violation of this defendant’s constitutional rights under sections 12 and 14 of article 1 of the Constitution of this state; and that “it was an attempt on the part of the state to compel the defendant to be a witness against himself. ’ ’
No charge was made and no offer of proof was made that any officer of either state or county had made or authorized or supervised a search, either legal or illegal, and" thereby secured the safety deposit box or its contents. The evidence on the subject is simply that Mr. Chamberlain, an officer of the bank, opened the box and produced the policies. What might be the effect of an unlawful search and seizure by officers of the state or county is a question that does not arise here and upon which we express no opinion. The accident insurance policies were properly identified, were competent and material, and no valid objection was interposed to their admission in evidence.
A photograph of the bedroom, showing the blackened walls and the burned bedclothes, with the bed and the burned body [410] of defendant’s wife, taken on January 9th, shortly after the murder, was admitted in evidence over the objections of the defense. It is insisted that the photograph was inadmissible and that the sole purpose of its introduction was to arouse the prejudice and inflame the passions of the jury. The photograph in this instance was not inadmissible, though it was only a repetition of what had been described verbally by the physician and by the officers; it may not have conveyed any information which had not already been given to the jury, but that would not be a reason for its exclusion. Photographs are generally admitted for the same reason that maps and diagrams in illustration or explanation of the testimony are admitted. Blake v. Harding, 54 Utah, 158, 180 Pac. 172; Johnson v. Railroad Co., 35 Utah, 285, 100 Pac. 390; State v. Casey (Or.) 213 Pac. 771; Tillman v. State, 112 Ark. 236, 166 S. W. 582. .The fact that the picture of the dead woman was gruesome presents no valid objection to its admission. People v. Balestieri, 23 Cal. App. 708, 139 Pac. 821.
During the closing argument of the district attorney, he made a number of statements which were objected to by the defense. With some slight variations the objection interposed by counsel in each instance was, “I object to the remarks of the district attorney and assign it as prejudicial error,” or ‘ ‘ I except to the remarks of counsel and assign it as prejudicial error.” This sort of objection or exception, without anything further, without a proper request for instructions to the jury and a ruling by the court, and an exception reserved at the proper time, presents nothing for review on appeal. We have, however, carefully considered the remarks of the district attorney that were objected to. We do not think they contain reversible error, especially when considered in connection with the instructions in which the court admonished the jury not to consider or be influenced by any “statement of counsel as to what the evidence is unless they state it correctly, nor by any statement of facts by counsel not shown by the evidence. ’ ’
The instructions were clear and so fair that no exceptions [411] were taken to any of them. At no time during tbe progress of tbe trial was any request made for more specific instruction in relation to any of the matters complained of.
Errors occurred during tbe trial, and some evidence was admitted that should have been excluded. Did the erroneously admitted evidence strengthen the prosecution 1 If not admitted, might the result have been different? Unless prejudicial, unless they probably affected the result and are clearly harmful to a defendant, all technical errors must be disregarded. Error, when it occurs in a criminal case, is not presumed to be prejudicial in this state.
“The statute that provides that technical errors in criminal cases shall be disregarded is mandatory, and, unless upon a review of all the evidence we are satisfied that a miscarriage of justice has resulted, we have no right to interfere with the jury’s verdict.” State v. Si&Aotoay, 61 Utah, 189, 211 Pac. 968.
Stripped of all extraneous matter, the competent and material evidence remaining is more than sufficient to establish the defendant’s guilt beyond all doubt.
The judgment is affirmed, and the cause is remanded to the district court of Salt Lake county, with instructions to fix the date of execution.
GIDEON and CHERRY, JJ., concur.