was a trial of the issues before a jury, which resulted in a verdict and a judgment against appellants for the recovery of the land in controversy. The judgment was rendered on January 16, 1920, and appellants immediately filed a motion for a new trial on numerous grounds, among which was an allegation of newly discovered evidence.

That term of the court ended without appellant's motion for a new trial having been ruled on by the court, nor does the record show that any further order was made by the court in the cause until September 25, 1920, a day of the succeeding term, when appellants filed a motion to set aside the judgment on account of the delay of the court in acting on the motion for new trial and the failure of the court to rule on that motion during the former term at which it was rendered. The court thereupon entered the following order:

"On this day the motion in the above cause asking that the judgment therein rendered on the 20th day of January, 1920, be set aside on account of delay in the hearing of the motion for new trial, and the court, being fully advised in the premises, doth find that the hearing of said motion for new trial was delayed on account of an agreement between counsel for plaintiffs and defendants that the trial judge should visit the land in controversy in person before the said motion should be passed upon, and the said delay has been the cause of the statutory time within which defendants have to perfect their appeal in this cause to the Supreme Court.

"It is therefore considered, ordered and adjudged by the court that the said judgment rendered and entered in this cause on the 14th day of January, 1920, be set aside, canceled and held for naught, and the same judgment so entered on said day shall be re-entered as and of the date of September 25, 1920, and the said defendants herein are given five (5) days within which to file their motion for new trial."

On the same day (September 25, 1920) the court entered an order overruling the motion for new trial of

appellants and granting time within which to present and file a bill of exceptions. The appeal was granted by the clerk of this court on March 19, 1921, which was within six months after the rendition of the last order of the court setting aside and re-entering the judgment of the court, but not within six months of the original rendition of the judgment.

A court with terms fixed by law has no power to vacate a judgment after the lapse of the term at which it was rendered, for the court loses control over its own judgments at the end of the term. Walker v. Jefferson, 5 Ark. 23; Mayor v. Bullock, 6 Ark. 282; Rawdon v. Rapley, 14 Ark. 203; McKnight v. Strong, 25 Ark. 212; Brady v. Hamlett, 33 Ark. 105. After the lapse of the term the court can set aside its judgment rendered at a former term only on the grounds specified in the statute. Crawford & Moses' Digest, §§ 1316, 6290; Turner v. Vaughan, 33 Ark. 454; Malpas v. Lowenstein, 46 Ark. 552; Johnson v. Campbell, 52 Ark. 316; Ayers v. Anderson-Tully Co., 89 Ark. 160; Terry v. Logue, 97 Ark. 314. The fact that the court has omitted to rule on a motion for new trial, or has made an order extending the time for presenting or considering a motion for a new trial, does not continue the power of the court over its own judgment to the next term so as to authorize the court to vacate the judgment. Joyner v. Hall, 36 Ark. 513; Brady v. Hamlett, supra; Siloam Springs v. McPhitridge, 53 Ark. 21; Stewart v. Wood, 86 Ark. 504; Corning v. Thompson, 113 Ark. 237.

It is not contended that the court set aside the judgment on either of the grounds specified in the statute cited above. The court's order setting aside the judgment, and appellant's motion which must be read in connection with it, show that the sole ground for setting aside the judgment was the fact that the court had not acted on the motion for new trial, which was tantamount to an order of the court at a former term postponing the time for considering the motion. The case of Corning v. Thompson, supra, is precisely in point in holding that the postponement to a succeeding term of the considera

tion of a motion for new trial does not preserve the power of the court over the judgment. It is clear, therefore, from the record before us that the order of the court attempting to set aside the judgment on September 25, 1920, was void, and that the appeal to this court was not granted within the time prescribed by the statutes. The appeal is therefore dismissed.

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STATE V. ROBERTS.

Opinion delivered April 25, 1921.

CRIMINAL LAW-TIME OF APPEAL.-On appeal of the State from a judgment sustaining a demurrer to an indictment for perjury, though the transcript fails to show the date of the judgment, yet where the opening order of court was dated January 3, 1921, and the transcript was filed in the Supreme Court on March 4 following, the appeal was in time.

CRIMINAL LAW-CONTENTS OF TRANSCRIPT ON APPEAL.-Rule 20 of the Supreme Court, prescribing the form of transcript in criminal cases, is inapplicable on appeals in criminal cases by the State, so far as it requires the inclusion of things specified in advance of the indictment, where the State is seeking merely to test the correctness of the judgment sustaining the demurrer to the indictment without bringing up the antecedent proceedings. PERJURY-INDICTMENT-FORM OF OATH.-It is unnecessary, in an indictment for perjury to set forth the form of the oath, it being sufficient merely to allege in general terms that the accused was duly sworn, or sworn in accordance with law.

PERJURY-INDICTMENT.—An indictment for perjury which alleges in substance, though not in orderly form or apt terms, that defendant, being duly sworn before the grand jury, was asked whether on a certain day he gave a half-gallon jar of whiskey to one W., to which he answered "No", and that such answer was material and was wilfully, unlawfully and corruptly false, was sufficiently definite to put the accused on notice.

PERJURY-INDICTMENT-CHARGE OF MATERIALITY OF TESTIMONY.An indictment for perjury on account of having sworn falsely before the grand jury touching violations of the liquor law was sufficient in charging that the alleged false testimony was material, without alleging facts showing the materiality of such testimony.

6.

PERJURY-INDICTMENT-VOLUNTARY TESTIMONY.-An indictment charging perjury before the grand jury in its investigation of violations of the liquor laws was not defective for failing to charge that defendant voluntarily appeared before the grand jury and gave the testimony alleged to be false, as the statute (Crawford & Moses' Dig., § 3122) protects him from the use of his own testimony in the prosecution of a charge against himself.

Appeal from Sharp Circuit Court; J. B. Baker, Judge; reversed.

J. S. Utley, Attorney General, and Elbert Godwin, Assistant, for appellant.

1. The indictment is not defective, and it was error to sustain the demurrer to it. An indictment for perjury is sufficient when it alleges that the alleged perjured testimony was material, but does not specify how it was material. 110 Ark. 549; 97 Id. 203. In an indictment for perjury the false testimony for which the defendant is indicted may be shown by the indictment to be material, either by direct averment or by allegations from which the materiality appears. The rule of pleading is satisfied by a direct averment and with that the question of materiality becomes one of proof of that averment. It is only where there is no averment of materiality that the indictment is insufficient unless it alleges the facts from which the law infers the materiality. 152 Mass. 577; 110 Ark. 553; 137 Cal. 263; 35 Mich. 491; 182 Ill. 278; 1 Russell on Crimes (1896) 354; 30 Cyc. (Law and Proc.) 1435; 91 Ark. 200-3.

2. The indictment states facts sufficent to give the court jurisdiction of the person of defendant.

3. The indictment is not ambiguous or too indefinite and uncertain. The facts alleged are sufficiently definite, as the indictment contains allegations of the facts constituting the offense in ordinary and concise language such as to enable a person of common understanding to know what is intended, and is sufficient. 73 Ark. 487; 77 Id. 321; 93 Id. 406; 94 Id. 65; 33 Cyc. 1440; C. & M. Digest, 3028.

4. The indictment alleges that defendant was duly sworn, and the demurrer admits it. 17 Ark. 332. It is not necessary to enter upon the record the form of the oath; it is sufficient if it shows that he was duly sworn. Ark. 257. See, also, 21 St. Enc. of Proc. 320-1.

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5. Defendant can not complain of the failure of the indictment to allege that he voluntarily appeared as a witness before the grand jury or whether he appeared in obedience to a subpoena. C. & M. Digest, § 2588. The indictment is sufficient if the offense is charged in the language of the statute or of similar import. 39 Ark. 216; 40 Id. 361; 47 Id. 476; 49 Id. 499; 71 Id. 80; 72 Id. 382.

6. The indictment shows and alleges in what particulars the alleged statements were false and how they were material. The rule is satisfied by a direct averment, and the question of materiality becomes one of proof. 91 Ark. 203.

7. The materiality of the testimony is sufficiently alleged. 91 Ark. 203. See, also, 21 St. Enc. of Proc. 322-3.

8. The indictment does allege as a matter of law that the statements were unlawfully and feloniously and wilfully and corruptly false. 91 Ark. 200; 110 Id. 554.

David L. King, for appellee.

1. Appellant has failed to file the transcript in time as prescribed by law, and it does not comply with the rules of this court. See rules 9, 14 and 18. The transcript was not lodged in this court in sixty days. 29 Ark. 115; 87 Id. 17; 94 Id. 368.

2. The indictment is defective in not alleging the materiality of the false oath. False swearing about immaterial matters is not perjury. 64 Ark. 474; 61 Id. 599. Every material fact to constitute the crime must be alleged in ordinary and concise language so as to enable a person of common understanding to know what is charged. 29 Ark. 165; 38 Id. 519; 43 Id. 43; 67 Id. 308.