(concurring).
I agree that the Spencer case should be overruled, and that the offense of second degree perjury is included in the charge of first degree perjury. This would logically dictate that the conviction of second degree perjury as found by the trial judge should he affirmed. However, there are some practical considerations that should be taken into account. It seems highly probable that the defendants may have been put to a disadvantage in the proceedings below in reliance on the Spencer case. It is reasonable to suppose that their counsel may have advised them that the matters they had testified to in the civil matter were not material in the sense required to constitute first degree perjury; that they could not be convicted of second degree perjury under the charge of first degree perjury, and that, therefore, it would be advisable to waive their rights to a trial by jury and enter into the stipulation, thus casting their lot with the court rather than requesting a jury. For these reasons, it seems to me that fairness to the defendants requires that, even though we affirm in principle the trial court’s interpretation of the law, the case should be remanded to the district court for further proceedings. The defendants should be permitted to withdraw the stipulation of facts and it should not be used in any manner against them and they should be allowed to demand trial by jury if they so desire.
Consistent with our duty to set out with such clarity as we can rulings which will assist in the expeditious administration of justice in the cause (See Rule 76 .(a), U.R.C.P.), I think it expedient that this observation be made: It is the well settled law that a reversal of a conviction at the instance of a defendant does not entitle him to go free because of the twice in jeopardy rule, but does entitle him to another trial under correct procedure. See State v. Lawrence, 120 Utah 323, 234 P.2d 600 and authorities therein cited; State v. Phillips, 175 Kan. 50, 259 P.2d 185; Pierce v. State, 96 Okl.Cr. 76, 248 P.2d 633. And a fortiori in this case, which is not an actual disapproval of the trial court’s construction of the statute involved, the district attorney is at liberty to take further proceedings to the end that the defendants have no more and no less than they are entitled to: That is, a fair trial upon the charge for which they were bound over to the district court.
McDonough, c. j., and wade, j., concur in the opinion of CROCKETT, J.