The opinion
ON PETITION FOR REHEARING
*413 Submitted on respondent’s petition for rehearing.
Harold Banta, Baker, for the petitioner.
McAllister, C. J.
The defendant has filed a petition for rehearing, complaining because we did not decide whether the indictment states facts sufficient to constitute a crime, which defendant described as “the fundamental issue in this case.” Defendant fails to grasp the effect of our opinion. We thought we had made it clear that whether the facts stated in the indictment constituted a crime is no longer open to inquiry in this case. The sufficiency of the facts stated in the indictment could have been raised by demurrer, by motion in arrest of judgment, or by appeal. The defendant did not demur to the indictment, did not file a motion in arrest of judgment within ten days after the entry of judgment, ① and failed to perfect an appeal. Defendant made no direct attack upon the judgment of conviction.
*414 The only attack made by defendant upon his judgment of conviction was in a collateral proceeding— initiated by a petition for a writ of habeas corpus and converted into a proceeding under the Post-Conviction Hearing Act (ch 636 Oregon Laws 1959). The law is well settled that the failure of the indictment to allege facts sufficient to constitute a crime cannot be raised in a habeas corpus proceeding. Smallman v. Gladden, 206 Or 262, 273 , 291 P2d 749 (1955); Hills v. Pierce, 113 Or 386, 396 , 231 P 652 (1924); Knewel v. Egan, 268 US 442 , 45 S Ct 522 , 69 L Ed 1036 (1925); Gimmick v. Tompkins, 194 US 540 , 24 S Ct 780 , 48 L Ed 1110 (1904); Roth v. United States, 295 F2d 364 (8th Cir 1961); 25 Am Jur, Habeas Corpus 175 § 43. In Hills v. Pierce, supra, at 113 Or 396 , the court said:
“It is settled by abundant authority that although the indictment under which a prisoner is held in custody is defective in that it fails to state the facts constituting .the crime, yet he is not entitled to his discharge upon habeas corpus if enough appear upon the face of the indictment to charge him with the crime. See note, 100 Am. St. Rep. 35 ; 12 R.C.L., p. 1190; see, also, authorities in note, 87 Am. St. Rep. 170 .”
The above rule is applicable to a proceeding under our Post-Conviction Hearing Act, which, like habeas corpus, is a collateral attack on the judgment. See Brooks v. Gladden, 226 Or 191 , 358 P2d 1055 (1961), cert. denied 366 US 974 , 81 S Ct 1942 , 6 L Ed2d 1263; State v. D’Onofrio, 221 Md 20, 155 A2d 643 (1959); Collins and Neil, The Oregon Postconviction-Hearing Act, 39 Ore L Rev 337, 363. The rule above referred to has been applied to a post-conviction proceeding under the Maryland act. Wilson v. Warden of the Maryland Penitentiary, 222 Md 580, 158 A2d 103 (1960), cert. denied 364 US 841 , 81 S Ct 79 , 5 L Ed2d *415 65. Nevertheless, defendant in his post-conviction proceeding did challenge the sufficiency of the indictment, and the circuit court for Marion county found against him. Whether that judgment constitutes an additional bar to any further challenge of the indictment we need not consider at this time.
The action of the circuit court for Marion county in vacating the life sentence imposed on defendant did not affect the status of defendant’s case, except to authorize the imposition of a lawful sentence. The vacation of the sentence did not authorize the circuit court for Baker county to re-examine the sufficiency of the facts stated in the indictment, or any proceedings prior to verdict. The authority of the circuit court for Baker county is 'limited upon remand to the imposition of a lawful sentence upon defendant.
The petition for rehearing is denied.
April 28, 1959.