These are consolidated appeals from second degree perjury convictions. Reversed.
Defendants were accused of first degree perjury but were convicted of second degree perjury on the theory the latter was included in the former. Defense counsel point to State v. Spencer, 1941, 101 Utah 274, 117 P.2d 455, 457, where the accused was charged with perjury specifying no degree, and urge that it is authority precluding such inclusion. The state counters with the contention that the language relied on was obiter. Here it is:
“There are two crimes: ‘perjury in the first degree’ and ‘perjury in the second degree.’' They are separate and distinct offenses. One is not an offense included in the other. They are two separate and distinct offenses and cannot be charged as different .counts in one information under the provisions of Sec. 105-21-31, Laws of Utah, 1935 [now U.C.A.1953, 77-21-31].”
Without determining the debatable question as to whether this language was dictum or not, logic would dictate that without such language the conclusion is almost inescapable that one offense was included in the other and an accusation of perjury, without specifying the degree, would have been sufficient, since applicable statutes1 seem to say so and actually authorize charging perjury in the following form: “A. B. committed perjury by testifying as follows”.2
*406Counsel’s advertence to the Spencer case compels us to meet it head-on, without equivocation, apology or fine distinction. So doing, we reject that case as being controlling, adopting, rather, the reasoning and conclusions of the dissenting opinion therein. We believe the Spencer decision is not that type requiring veneration of or the payment of tribute to the principle of stare decisis, since we are convinced that it reasonably cannot find justification for the interpretation it placed on the pertinent statutes.
Now, what of these defendants, who, absent the Spencer case, would have been punishable for second degree perjury, perhaps, as an offense included in first degree perjury, the charge they faced?
The record reveals that their written stipulation contained admitted false statements, and that they waived the jury. It follows quite obviously, we think, that defendants were, or at least may have been lulled into a false sense of security by the language of the Spencer case, and quite as obviously prepared their defense thereon, thus placing their fate in the hands of an expert on the crucial matter of materiality rather than in the hands of inexperienced veniremen. They reasoned well, since the trial court found the statements to have been on immaterial matters, with which conclusion we agree.
Under the particular and quite unusual circumstances of this whole case, without enunciating any principle that necessarily would be applicable to other circumstances, each case being determinable on its facts and as it arises, we are constrained to hold, and we do, that these defendants cannot be held accountable under a first degree perjury charge for second degree perjury committed at a time when any reasonable person, reading the Spencer case, would plan his defense on the assumption that being charged with first degree perjury, proof of that offense beyond a reasonable doubt would be required, and that conviction for second degree perjury would be an impossibility as an included offense, under the terms of the Spencer case.
To conclude otherwise would offend against common decency, and discount our traditional conceptions of fair play.
In concluding as we do, we lay down no hard and fast rule anent the retrospective or prospective operation of our decision in criminal or civil cases generally or specifically. What we do say is that under the facts of this particular case, — none other— where defendants relied on a case which we ourselves admit was erroneously decided by us ourselves, to penalize defendants under the charge of first degree perjury would shock our sense of justice.
In view of the fact that a majority of my learned colleagues have concluded that this case be sent back for a new trial, — a conclusion that this writer cannot share, — that will be and is the order and judgment of this court.
. Title 76-45-1, U.C.A.1953 (formerly 103-43-1.10, U.O.A.1943.)
Title 76-45-7, U.C.A.1953 (formerly 103-43r-10,. U.C.A.1943.)
Title 76-45-8, U.C.A.1953 (formerly 103-43-11, U.C.A.1943.)
Title 77-21-8, U.C.A.1953 (formerly 105-21-8, U.C.A.1943.)
Title 77-21-38, U.C.A.1953 (formerly 105-21-38, U.C.A.1943.)
. Title 105-21-47, Chap. 118, Laws of Utah 1935, now 77-21-47, U.C.A.1953.