Page:Williams v. State, 259 Ark. 667, 535 S.W.2d 843 (1976).pdf/5

] pertinent part, reads as follows:"A person who swears . . . that any . . . affidavit . . . by him subscribed, is true, in any action of any kind, or in a special proceeding, or upon any hearing, or inquiry, or on any occasion in which an oath is required by law, or is necessary for the prosecution or defense of a private right, or for the ends of public justice, or may lawfully be administered, and who in such action or proceeding, or on such hearing, inquiry or other occasion, wilfully and knowingly testifies, declares, deposes or certifies falsely, in any matter, or states in his testimony, . . . affidavit, or certificate, any matter to be true which he knows to be false, and who is not guilty of perjury in the first degree, is guilty of perjury in the second degree . .."The third factor is that the statements in the affidavit were certainly material, as a matter of law, to the proceeding before the court, which was the motion to disqualify, not the petition for post-conviction relief. Where there is no dispute about the facts sworn to, any question of materiality is one of law for the court. Bryant v. State, 208 Ark. 192, 185 S.W. 2d 280; Carter v. State, 181 Ark. 665, 27 S.W. 2d 781.

Williams also asserts that there was error in the court's refusal to give his requested instruction that if the facts sworn to were not material to the proceedings before the court, the defendant should be found innocent. It seems to us that there was no question of fact for the jury as to materiality. Furthermore, the materiality of the statements in an affidavit is not an essential element of perjury in either degree under the statutes applicable to this prosecution. Ark. Stat. Ann. § 41-3001, 3002 (Repl. 1964). In this respect our statutes make the crime with which appellant was charged that which was known to the common law and in many statutes as "false swearing." To constitute that offense, the false statement need not be material, even though it should be relevant. Beckley v. State, 443 P. 2d 51 (Alaska, 1968); State v. Ellenstein, 121 N.J.L. 304, 2 A. 2d 454 (1938); Barkley v. Commonwealth, 264 S.W. 2d 297 (Ky. 1954); People v. Samuels, 284 N.Y. 410, 31 N.E. 2d 753 (1940); State v. Byrd, 28 S.C. 18, 4 S.E. 793, 13 Am. St. Rep. 660 (1888); State v. Miller, 26 R.I. 282, 58 A. 882 (1904).