ON REHEARING
MR. JUSTICE SHEA,This case involves proceedings before a grand jury in Lewis and Clark County in which the defendant was indicted on 18 counts of perjury relating to his testimony before the grand jury as to how his clients who had industrial accident claims came to him. In State v. Scanlon, 33 St.Rep. 1355 (December 30, 1976), this Court affirmed the dismissal of 16 of the 18 counts by the district court, but ordered a trial on two of the counts (counts 9 and 10). Thereafter, defendant petitioned for a rehearing, and the state petitioned for a rehearing, the thrust of both was that the defendant and the state requested a dismissal of all 18 counts of perjury. This Court granted the petitions for rehearing.
As part of the grand jury investigation into the handling of industrial accident claims by the Industrial Accident Board and by attorneys in Montana, the grand jury called defendants to testify as to how the attorney-client relationship was initiated. The purpose of this inquiry was to determine if there were leaks from the Industrial Accident Board to certain lawyers in Montana concerning persons in Montana who had filed industrial accident claims with the Board. The focus was whether anyone within the Industrial Accident Board either referred claimants to the defendant or whether they provided him with names of claimants who would be potential clients.
*156When he was first called to testify before the grand jury, defendant refused to answer questions asked him, asserting his right against self-incrimination. Thereafter, in an effort to find how defendant acquired his clients, the grand jury granted immunity against prosection to the defendant except prosecution for contempt and perjury. For two days defendant testified before the grand jury, and denied he solicited his clients and explained how they became his clients. As a result of this testimony the grand jury indicted defendant on 18 counts of perjury.
The district court dismissed each of the 18 counts based either on lack of direct evidence as to the falsity of the statement, lack of corroboration as to the falsity of the statement, or lack of materiality.
Several of the counts against defendant arose out of transactions where defendant testified the clients were referred to him by an uncle and aunt, Mr. and Mrs. Richard Mullins, or by Mr. and Mrs. Herman Myers, long-time family friends. At the time of his testimony before the grand jury, all of these persons had died. The clients who appeared before the grand jury denied ever knowing any of the people named. The district court dismissed these counts for lack of direct evidence as to the falsity. These dismissals were proper. These counts were not supported by direct evidence of the falsity of the defendant’s statements.
This appeal concerns the evidentiary standard required for the proof of perjury, which essentially revolves around three statutes.
Section 94-7-202(7), R.C.M.1947, provides:
“No person shall be convicted of an offense under this section where proof of falsity rests solely upon the testimony of a single person other than the defendant.”
Section 93-401-1, R.C.M.1947, provides:
“The direct evidence of one witness who is entitled to full credit is sufficient for proof of any fact, except perjury and treason.”
Section 93-1401-2, R.C.M.1947, provides:
“Perjury and treason must be proved by testimony of more than one witness; treason by the testimony of two witnesses to the same *157overt act; and perjury by the testimony of two witnesses, or one witness and corroborating circumstances.” (Emphasis added.)
The basis for unusually strigent evidence requirements is set out in an arcitle in 19 UCLA Law Review 638, 642, 643 entitled “Perjury and Related Offenses Under the Proposed California Criminal Code.” That same article points out at p. 645, that Tentative Draft No. 6 of the Model Penal Code on this point reads:
“Corroboration. Proof of guilt beyond a reasonable doubt shall suffice for conviction under this section as in other criminal cases, without special requirement of two witnesses or corroborating circumstances.
“[Alternate, rejected by the council: No person shall be convicted of an offense under this Section where proof of falsity rests solely upon contradiction by testimony of a person other than the defendant.]”
The official draft of the Model Penal Code, which served as the basis for section 94-7-202(7), R.C.M. 1947, used the alternate provision. In Montana Criminal Code, 1973, Annotated, Prof. William F. Crowley — Editor, at page 293 the annotator points out:
“The common law rule that falsehood be established by two witnesses is adopted in part by subsection (7). At the common law this rule was adopted to deal with the problem of an oath against an oath. The modern rationale is a policy determination based on a balancing of the need for protection of witness and the need to maintain the sanctions for false testimony. In adopting the requirement of more than one witness Montana has followed the majority of states in affording additional protection to the witness at the possible cost of being unable to convict an apparent perjurer. * * *”
As noted above, the standard of proof required in Montana uder the new code section 94-7-202(7), R.C.M. 1947, requires that the proof of the falsity of a statement must be more than the contradiction testimony of a person other than the defendant. The legislature recently made this policy determination and despite the contrary rule urged by the state, this the rule in Montana.
*158The exact requirements of this evidentialry rule in perjury cases are apparent from an examination of the California cases interpreting the section of the California Civil Code, identical to Montana’s section 93-1401-2, R.C.M.1947. In an article entitled “Proof of Perjury: The Two Witness Requirement”, 35 Southern California Law Review 86, 97, it is stated:
“In summary, the California attitude is, and remains, that direct testimony of at least one witness must always be introduced to prove the falsity of the statement set forth in the indictment; circumstantial evidence alone will not support a perjury conviction.”
In People v. Roubus, 65 Cal.2d 218, 53 Cal.Rptr. 281, 417 P.2d 865, 866, 867, the California Supreme Court, sitting In Bank, outlined this evidentiary requirement:
“Perjury must be proved by the testimony of two witnesses, or of one witness and corroborating circumstances. * * * Direct, as distinguished from circumstantial, evidence of the falsity of the defendant’s testimony by at least one witness is generally required. * * * This does not mean that there must be a denial in the very words of the defendant’s testimony * * * but that there must be testimony by at least one witness furnishing direct evidence of facts contrary to, or absolutely incompatible or physically inconsistent with, that sworn to by the accused * * *. Evidence that establishes facts from which the falsity of an alleged perjured statement may or may not be inferred is insufficient under the direct evidence rule. * * *
“The rule requiring proof of falsity by direct evidence has been criticized. * * * However, this requirement was early established in this state by decisions construing our statutory provision. It is noteworthy that a majority of jurisdictions which apply the rule that falsity must be proved by the testimony of two witness, or of one witness and corroborating circumstances, hold that circumstantial evidence alone is generally insufficient to establish falsity.”
An early Montana case indicates this is the law in Montana as *159well. In State v. Gibbs, 10 Mont. 213, 219, 25 P. 289, 290, it is said:
‘It is not necessary that there should be two living witnesses in contradiction of the statement of the defendant to justify a conviction of perjury. It is sufficient if, in addition to one directly opposing witness, corroborating circumstances sufficient to turn the scale and overcome the oath of the defendant and the legal presumption of his innocence are proved.’ ”
The Court in Gibbs approved this instruction as to proof of perjury:
“ * * * that such act of perjury has been established to your satisfaction beyond a reasonable doubt by more than one witness, or that the testimony of such witness has been corroborated upon that point by other facts and circumstances proved on the trial. In other words, the direct evidence of one witness alone is not sufficient to convict of the crime of perjury, unless corroborated by other facts and circumstances proved on the trial.’ ”
In Gibbs the Court construing the then equivalent code section to section 93-401-1, R.C.M.1947. Section 93-1401-2 had not been enacted at that time. In State v. Jackson, 88 Mont. 420, 293 P. 309, the Court cited Gibbs as authority of the requirement that perjury must be proved by the testimony of two witnesses, or one witness and corroborating circumstances indicating that this was the law even prior to the passage of section 93-1401-1, R.C.M.1947.
A subsiciary question to be determined regards the nature of the corroboratiiig circumstances that must be proved. The rule in California, that the state argues we should adopt, is stated in People v. Casanova, 54 CalApp. 439, 202 P. 45, 47:
“* * * The statute respecting the quantum of evidence necessary in perjury cases will be satisfied, if there be the testimony of one witness to facts that are absolutely incompatible with the innocence of the accused, corroborated by circumstances which, of themselves and independently of such directly inculpatory evidence, tend, with a reasonable degree of certitude, to show that the accused is guilty as charged.”
*160See also: People v. Pustau, 39 Cal.App.2d 407, 103 P.2d 224, 228.
In Gibbs the Court said that “corroborating circumstances sufficient to turn the scale and overcome the oath of the defendant and the legal presumption of his innocence” are all that is required. In People v. Todd, 9, Cal.App2d 237, 49 P.2d 611, 614, it is pointed out:
“It is also well settled that motive and design to commit a crime, if proved, may be considered a guilty circumstance * * * and consequently may serve legally as corroborative evidence; and in this behalf it has been repeatedly held that where, as here, it is claimed that several offenses have been committed as part of one scheme or plan, all of the same general character, tending to the same common end, evidence thereof may be received to show the process or motive and design to commit the particular offense with which the accused is charged, and as tending to show logically that the particular offense for which he is being tried was part of such common scheme.”
The second issue involves the requirement that the alleged perjured statement be material. The Montana statute, section 94-7-202(3), R.C.M.1947, provides:
“Falsification is material, regardless of the admissibility of the statement under rules of evidence, if it could have affected the course or outcome of the proceeding. It is no defense that the declarant mistakenly believed the falsification to be immaterial. Whether a falsification is material in a given factual situation is a question of law.”
The Commission Comment points out:
“The proposed definition of ‘materiality’ in subsection (3) does not differ substantially from that given by prior law.”
In State v. Hall, 88 Mont. 297, 304, 292, P. 734, 735, the Court said:
“* * * Also it may be conceded that the general rule is that anything so connected with the matter at issue as to have a *161legitimate tendency to prove or disprove some material issue by giving weight or probability to, or detracting from, the testimony of a witness, is material * * * and that, if evidence is circumstantially material, it is sufficient to sustain a perjury charge.”
The test for materiality as set out by the statute is not particularly difficult to meet, it requires only that in the actual factual situation involved would it be reasonable to find that the defendant’s statement, if believed, could have altered the course of the investigation.
The grand jury statute, section 95-1408(c), R.C.M.1947, provides:
“The grand jury shall find an indictment when all the evidence before it, taken together, if unexplained or uncontradicted, would, in its judgment, warrant a conviction by a trial jury.”
While it is the right of the grand jury to return an indictment, it is, nevertheless, the duty of the courts to determine if there was the required minimum evidence to prove each of the elements of the charge of perjury. Both sides conceded here that there was no more evidence which could go before a trial jury than what the grand jury had already heard. Accordingly, this is not a situation where the indictment is faulty but where the defendant can be reindicted. Rather, it is a situation where if the indictment is faulty, the defendant cannot again be indicted because there is no other evidence to present to the grand jury.
This Court has carefully reviewed all counts and conclude that all counts were properly dismissed. Sixteen of the 18 counts were situations where they were not supported by direct evidence of the falsity of defendant’s statements. However, counts 9 and 10 deserve more attention in discussing our reasons for their dismissal.
The two charges are summarized as follows:
At trial the state offered evidence to prove that defendants met in Billings," Montana on April 5, 1975 and conspired to rob the Safeway grocery store in Hardin, a small community 50 miles south of Billings. The state offered direct and circumstantial evidence tend*162ing to prove that on the evening of April 5, 1975 defendants Fitzpatrick and Radi drove to Hardin in Radi’s automobile, while Holliday, Bad Horse and Bushman together drove to Hardin in another automobile. Defendants parked in front of the Safeway store and waited until closing time when Everett Stoltz, the store manager, and Monte Dyckman, a store employee locked the store doors and drove away in different automobiles. Fitzpatrick and Radi followed the store manager. The remaining defendants purportedly followed Monte Dyckman but lost sight of him when he stopped at the post office to deposit mail. When the store manager drove to his home, Radi and Fitzpatrick realized the store receipts were carried by Dyckman and they proceeded to the bank where the deposit was to be dropped. It is alleged Fitzpatrick and Radi abducted Monte Dyckman at the bank, prior to his depositing the store’s receipts, robbed him, and then killed him in the vicinity of the Toluca Interchange, 12 miles west of Hardin, within the boundaries of Big Horn County.
Defendants raise numerous issues on appeal. We hold the judgments of conviction must be reversed and the causes remanded for new trials. Therefore, we discuss only the following issues to insure that we do not comment on matters to come before the district court in a new trial:
I. Whether the Montana statutory provisions for jury selection are constitutionally valid and, if so, whether the jury in the instant case was selected and drawn in substantial compliance with the law?
II. Whether the defendants were prejudiced by the joinder of their trials?
III. Whether there was sufficient corroboration of defendant Bushman’s testimony?
IV. Whether the convictions of defendants Holliday and Bad Horse should be reversed and the charges against them dismissed on the grounds the jury was inadequately instructed on the applicable law and returned to inconsistent verdicts?
Issue I. Defendants initially contend their convictions should be *163reversed and the causes remanded on the grounds the Montana statutory provisions for selecting jurors is unconstitutional and, even if the statute is found to be constitutional, that the jury panels in the instant case were selected and drawn in total disregard of the applicable Montana law. Section 95-1908, R.C.M.1947, sets forth the procedure in challenging the selection of a jury panel:
“Motion to discharge jury panel, (a) Any objection to the manner in which a jury panel has been selected or drawn shall be raised by a motion to discharge the jury panel. The motion shall be made at least five (5) days prior to the term for which the jury is drawn. For good cause shown, the court may entertain the motion at any time thereafter.
“(b) The motion shall be in writing supported by affidavit and shall state facts which show that the jury panel was improperly selected or drawn.
“(c) If the motion states facts which show that the jury panel has been improperly selected or drawn, it shall be the duty of the court to conduct a hearing. The burden of proof shall be on the movant.
“(d) If the court finds that the jury panel was improperly selected or drawn, the court shall order the jury panel discharged and the selection or drawing of a new panel in the manner provided by law.”
At the outset we note defendants have failed to comply with section 95-1908. Defendants raised the issue of improper jury selection and drawing in a timely and specific manner, but the district court record fails to disclose the submission of any affidavit in support of the allegation. Defense counsel contend, on oral argument before this Court, that the timely submission of a supporting affidavit, required by section 95-1908, was prohibitive since counsel lacked the means of determining the manner in which the jury panel was selected and drawn. Absent such knowledge, defense counsel conclude the filing of affidavits before this Court at the time of appeal is sufficient. We disagree.
The district court file clearly reveals that at least one defense *164counsel was cognizant of the provisions of section 95-1908. The motion of defendant Bad Horse to discharge the jury panel states:
“COMES NOW the Defendant, PAUL BAD HORSE, JR., and moves the Court to Discharge the Jury Panel herein pursuant to Section 95-1908, R.C.M.1947.
“Said motion will be supported by affidavit when the jury panel is selected and made known to this defendant.
“Dated this 29th day of August, 1975.”
A summary of count 9 charges that Jack M. Scanlon, falsely testified that Grace A. Rieker first contacted him on the telephone, when in turth and fact he knew that he had instigated the telephone conversation with claimant for the prupose of initiating a client-attorney relationship; and that he so testified to deceive and frustrate the grand jury in its investigation contrary to section 94-7-202, R.C.M.1947.
A summary of count 10 charges that defendant falsely testified that prior to the telephone call from claimant he had never heard of the claimant nor the fact that she was injured, while in truth and fact he knew the claimant and that she had been injured prior to ever talking to her, and he so testified for the purpose of cedeiving and frustrating the grand jury contrary to section 94-7-202, R.C.M.1947.
The gist of count 9 is the contradictory statements of attorney Scanlon and Mrs. Rieker as to who called the other first. Scanlon claims she called him first and she claims that Scanlon called her first. A determination must be made whether attorney Scanlon’s testimony, if false, was material to the grand jury investigation; that is, would it be reasonable to find that the defendant’s statement, if believed, could have altered the course of the investigation. Section 94-7-202(3), R.C.M.1947, provides that “* * * Whether a falsification is material in a given factual situation is a question law.” Accordingly, we must determine if the testimony was material. We conclude that it was not.
The focus of the grand jury inquiry was to determine if there were any personnel within the Industrial Accident Board who were *165leaking information concerning claimants’ cases to certain attorneys. The testimony elicited from Mr. and Mrs. Rieker and from attorney Scanlon must be weighed in light of this inquiry: Was anyone within the Industrial Accident Board referring claimants to attorney Scanlon, or were they providing him with the names of potential clients?
The testimony centers around Mrs. Rieker, a secretary-receptionist at the Boulder River School in Boulder; Ron Fuller, the principal of Jefferson County High School in Boulder; and attorney Scanlon. Fuller and Scanlon are close personal friends dating back to high school days. Fuller and Mrs. Rieker were casual acquaintances in Boulder. Mrs. Rieker’s industrial accident claim occurred at the school when she slipped on the steps and sustained back or neck injuries. Fuller had no connection with the Industrial Accident Board which handled claims sustained by injured workers.
Mrs. Rieker testified that it was Ron Fuller, and him alone, who twice suggested that she obtain a lawyer to handle her claim. On the first occasion she claims Fuller told her she should see a lawyer, and he would help her get one. On the second contact made by Fuller she claims that Fuller telephoned her and asked her if she would like to talk to attorney Scanlon who was with Fuller at the time. She claims she did talk to Scanlon and he later came over to her house to discuss her case.
There was no evidence that Mrs. Rieker became a client of Scanlon as a result of inside contacts Scanlon had with the Industrial Accident Board. There was no evidence that personnel of the Industrial Accident Board were referring possible clients to Scanlon or providing him with the names of potential clients. After Mrs. Rieker testified that it was Fuller who furnished the contact with attorney Scanlon, there was simply no evidence that personnel of the Industrial Accident Board had leaked information concerning Mrs. Rieker to attorney Scanlon. However, when Scanlon was later called before the grand jury, they wanted to know who had first done the contacting. Did Mrs. Rieker contact attorney Scanlon first or did Scanlon contact her first?
*166Regardless of the answer given to this question by Scanlon, it would not have affected the outcome of the proceedings or misled the grand jury in its investigation into possible leaks from the Industrial Accident Board. If they chose to believe Mrs. Rieker, they could conclude that Fuller telephoned her on behalf of attorney Scanlon and then put Scanlon on the phone to talk to her about her accident claim. If they chose to believe Scanlon they could conclude that Mrs. Rieker went to him on her own volition and that he could not recall how she happened to call him as an attorney. Neither conclusion suggests a leak to Scanlon from the Industrial Accident Board. It is clear that Scanlon’s testimony was not material to the grand jury’s inquiry.
Count 9 must be dismissed for yet another reason. Mrs. Rieker’s testimony that attorney Scanlon called her first was not corroborated by admissible evidence. .There was only -the direst testimony of Mrs. Rieker that Scanlon called her first. The only attempted corroboration was testimony from Mrs. Rieker’s husband that his wife told him that attorney Scanlon had called. It is manifest that section 93-1401-2, R.C.M.1947, which sets out the requirement of corroboration, contemplates only admissible corroboration. Here, the testimony was not admissible because it was hearsay and because it attempted to obtain corroboration from the same witness who was the source of the direct evidence.
In State v. Newman, 162 Mont. 450, 457, 513 P.2d 258, 262, we defined hearsay as follows:
“* * * ‘Hearsay’ is testimony or evidence of someone’s words or conduct outside the court, when offered in court to prove the truth of the thing being asserted, and thus resting for its value upon the credibility of the out-of-court asserter.”
Here, the state attempted to use the statement made by Mrs. Rieker to her husband to prove that Scanlon had actually called Mrs. Rieker on the telephone. Its credibility rested not on Mr. Rieker but on Mrs. Rieker. This plainly is hearsay.
The vice of this kind of evidence is even more apparent when considered in relation to the kind of proof needed for a prima facie *167case of perjury. To allow the testimony of Mr. Rieker as corroboration would be to fly in the face of Montana statues requiring corroboration. Section 93-401-1, R.C.M. 1947, provides that the direct testimony of one person is not sufficient to prove the crime of perjury. Section 93-1401-2, R.C.M. 1947, requires that “* * * perjury [must be proved] by the testimony of two witnesses, or one witness and corroborating circumstances.” (Emphasis and bracketed material added.) Mrs. Rieker was the only person who testified directly that attorney Scanlon had called her first and so there was a need for corroborating circumstances.
To be admissible, the corroborative evidence must be independent of the testimony of the same witness who is the source of the direct evidence. See, for example, United States v. Freedman, 445 F.2d 1220 (2nd Cir 1971); United States v. Thompson, 379, F.2d 625 (6th Cir. 1967) and United States v. Rose, 215 F.2d 617 (3rd Cir 1954), which cases engraft a requirement of corroboration onto the federal perjury statute. Here, the grand jury had to rely on the direct testimony of Mrs. Rieker that attorney Scanlon had called her first, but also, for corroboration, it had to rely on her indirect testimony by virtue of her husband testifying to what she told him. What Mrs. Rieker told her husband is not corroboration under the perjury statute.
For these reasons count 9 must be dismissed.
Count 10 concerns the nature of the proof required for a charge of perjury, specifically, the requirement of direct evidence. The gist of count 10 concerns a conflict as to whether attorney Scanlon knew of Mrs. Rieker’s compensation claim before the first time he talked to her about the case. Scanlon claims he did not; Mrs. Rieker claims he did. Regardless of who is right, there is no direct evidence as required by section 93-1401-2 to establish a prima facie case.
The only evidence concerning attorney Scanlon’s prior knowledge of Mrs. Rieker’s claim came from Mr. and Mrs. Rieker. They testified Scanlon told them he knew of Mrs. Rieker’s claim before he talked to her on the telephone. However, this is not direct *168evidence. Rather, under section 93-301-10, R.C.M. 1947, it is indirect evidence. That section provides:
“Indirect evidence is that which tends to establish the fact in dispute by proving another, and which, though true, does not of itself conclusively establish that fact, but which affords an inference or presumption of its existence. For example, a witness proves an admission of the party to the fact in dispute. This proves a fact from which the fact in dispute is inferred.”
Under' this statute any statement made to them by Scanlon is in the nature of an admission and, therefore, is indirect evidence of the fact sought to be proved. The result is that there is no direct evidence to sustain a prima facie case of perjury as required by section 93-1401 and 93-1410-2, R.C.M. 1947. There being no direct evidence, count 10 must also be dismissed.
Defendant has raised other issues in his petition for rehearing, but in light of our holding, we find no need to discuss them.
Counts 9 and 10 are ordered dismissed and the dismissal order of the district court is affirmed in its entirety.
Count 9 must be dismissed for yet another reason. Mrs. Rieker’s testimony that attorney Scanlon called her first was not corroborated by admissible evidence. There was only the direct testimony of Mrs. Rieker that Scanlon called her first. The only attempted corroboration was testimony from Mrs. Rieker’s husband that his wife told him that attorney Scanlon had called. It is manifest that section 93-1401-2, R.C.M. 1947, which sets out the requirement of corroboration, contemplates only admissible corroboration. Here, the testimony was not admissible because it was hearsay and because it attempted to obtain corroboration from the same witness who was the source of the direct evidence.
In State v. Newman, 162 Mont. 450, 457, 513 P.2d 258, 262, we defined hearsay as follows:
“ * * * ‘Hearsay’ is testimony or evidence of someone’s words or conduct outside the court, when offered in court to prove the truth of the thing being asserted, and thus resting for its value upon the credibility of the out-of-court asserter.”
*169Here, the state attempted to use the statement made by Mrs. Rieker to her husband to prove that Scanlon had actually called Mrs. Rieker on the telephone. Its credibility rested not on Mr. Rieker but on Mrs. Rieker. This plainly is hearsay.
The vice of this kind of evidence is even more apparent when considered in relation to the kind of proof needed for a prima facie case of perjury. To allow the testimony of Mr. Rieker as corroboration would be to fly in the face of Montana statues requiring corroboration. Section 93-401-1, R.C.M.1947, provides that the direct testimony of one person is not sufficient to prove the crime of perjury. Section 93-1401-2, R.C.M.1947, requires that “* * * perjury [must be proved] by the testimony of two witnesses, or one witness and corroborating circumstances.” (Emphasis and bracketed material added.) Mrs. Rieker was the only person who testified directly that attorney Scanlon had called her first and so there was a need for corroborating circumstances.
To be admissible, the corroborative evidence must be independent of the testimony of the same witness who is the source of the direct evidence. See, for example, United States v. Freedman, 445 F.2d 1220 (2nd Cir 1971); United States v. Thompson, 379, F.2d 625 (6th Cir. 1967) and United States v. Rose, 215 F.2d 617 (3rd Cir 1954), which cases engraft a requirement of corroboration onto the federal perjury statute. Here, the grand jury had to rely on the direct testimony of Mrs. Rieker that attorney Scanlon had called her first, but also, for corroboration, it had to rely on her indirect testimony by virtue of her husband testifying to what she told him. What Mrs. Rieker told her husband is not corroboration under the perjury statute.
For these reasons count 9 must be dismissed.
Count 10 concerns the nature of the proof required for a charge of perjury, specifically, the requirement of direct evidence. The gist of count 10 concerns a conflict as to whether attorney Scanlon knew of Mrs. Rieker’s compensation claim before the first time he talked to her about the case. Scanlon claims he did not; Mrs. Rieker claims he did. Regardless of who is right, there is no *170direct evidence as required by section 93-1401-2 to establish a prima facie case.
The only evidence concerning attorney Scanlon’s prior knowledge of Mrs. Rieker’s claim came from Mr. and Mrs. Rieker. They testified Scanlon told them he knew of Mrs. Rieker’s claim before he talked to her on the telephone. However, this is not direct evidence. Rather, under section 93-301-10, R.C.M.1947, it is indirect evidence. That section provides:
“Indirect evidence is that which tends to establish the fact in dispute by proving another, and which, though true, does not of itself conclusively establish that fact, but which affords an inference or presumption of its existence. For example, a witness proves an admission of the party to the fact in dispute. This proves a fact from which the fact in dispute is inferred.”
Under this statute any statement made to them by Scanlon is in the nature of an admission and, therefore, is indirect evidence of the fact sought to be proved. The result is that there is no direct evidence to sustain a prima facie case of perjury as required by section 93-1401 and 93-1410-2, R.C.M.1947. There being no direct evidence, count 10 must also be dismissed.
Defendant has raised other issues in his petition for rehearing, but in light of our holding, we find no need to discuss them.
Counts 9 and 10 are ordered dismissed and the dismissal order of the district court is affirmed in its entirety.
MR. CHIEF JUSTICE HATFIELD, and JUSTICES DALY and HASWELL, concur.