(concurring and dissenting).
I am out of agreement with Justices HENRIOD and CROCKETT in holding that the conviction for second degree perjury .should be reversed.
The decision in the Spencer case seems to have upset our judicial equilibrium. If the language quoted by Mr. Justice HEN-RIOD from the Spencer case is dictum we should not be disturbed. If it is not dictum we are nevertheless agreed that that case *408should be rejected. I am in agreement with the holding of the trial judge in declining to follow the Spencer case and our af-firmance of the trial court’s judgment will avoid embarrassment.
The effect of the opinions of Justices HENRIOD and CROCKETT is to say the Spencer case is wrong but we will make the effective date of overruling that decision as soon as our decision is rendered in this case. From now forward perjury in the second degree is an included offense in the charge of perjury in the first degree, but as to any case including this case since the Spencer decision it will not be considered as an included offense.
The other members of. the court choose to apply our decision prospectively and hold that the conviction of the defendants cannot stand. So concluding, it should follow in my opinion that the defendants should be discharged.
I am not in agreement with Mr. Justice CROCKETT that the case be remanded to the district court permitting defendants to withdraw the stipulation of facts and that they be required to plead in further proceedings.
Since none of the other members of the court agree with me that the conviction should be affirmed and since the other justices disagree as to whether or not we should give directions as to further proceedings to be pursued I am constrained, to agree with the results of Mr. Justice HENRIOD’S opinion in this matter.