Page:Williams v. State, 259 Ark. 667, 535 S.W.2d 843 (1976).pdf/4

670 courtroom to begin its deliberations in his trial, Judge Goodson had stated to the jury that he saw no reason why the defendant Williams should not be found guilty as charged. Thereafter, Williams was charged with and convicted of perjury in violation of Ark. Stat. Ann. § 41-3001 (Repl. 1964) in the making of this statement under oath.

For reversal, Williams first contends that the court erred in denying his motion for directed verdict. His argument on this point is not well taken. He contends that the matter pending before the court was his petition for post-conviction relief and that the alleged false statements were not material to the issues raised by it, since the affidavit was in support of his motion for disqualification of the presiding judge only. He relies on Lednum v. State, 169 Ark. 396, 275 S.W. 699. There are three factors that made the denial of the motion proper. In the first place, reliance on Lednum is inappropriate. The governing statute has been amended since that decision. We held that a perjury conviction cannot be based upon a false affidavit which does not show upon its face that its subject matter is material in a cause, matter or proceeding before a court, tribunal, body corporate or other officer having authority to administer oaths. The amendment has materially changed the definition of the crime of perjury upon which the holding in Lednum was based. This amendment was made by Initiated Act No. 3 of 1936. The statute, as amended, appears as Ark. Stat. Ann. § 41-3001 (Repl. 1964) which now reads as follows:"Perjury in the first degree is the wilful and corrupt swearing, testifying or affirming falsely to any material matter in any cause, matter or proceeding before any court, tribunal, body corporate or other officer having by law authority to administer oaths, or to any affidavit, deposition or probate authorized by law to be taken before any court, tribunal, body politic or officer. (Italicized words were added by amendment.)"Secondly, appellant's contention is unsound in that perjury in the second degree is a lesser included offense. People v. Samuels, 284 N.Y. 410, 31 N.E. 2d 753 (1940). That crime is defined in Ark. Stat. Ann. § 41-3002 (Repl. 1964) which, in