¶1ON THE MERITS
¶2This is a criminal case in which a jury in Baker county found defendant guilty of the crime of perjury, for which, as an habitual criminal, he was given the enhanced penalty of life imprisonment. In a post-conviction proceeding in Marion county the circuit court found that the enhanced penalty was illegal and the defendant was returned to Baker county for the imposition of a lawful sentence. Upon his return to Baker county the defendant filed a motion in arrest of judgment which was allowed. The state appealed from the order arresting judgment. The defendant moved .to dismiss this appeal on the ground that the *409order in arrest of judgment was not an appealable order. Tbe motion was denied in an opinion written by Mr. Justice Rossman. See State v. Cloran, 233 Or 400, 374 P2d 748 (1962).
¶3On December 19, 1958 the defendant was indicted in Baker county for the crime of perjury. Although defendant was represented by counsel, he did not demur or otherwise object to the form of the indictment. On March 10, 1959, after trial, a jury found defendant guilty of the crime charged. Before defendant was sentenced the district attorney for Baker county filed an information, pursuant to the statutes pertaining to habitual criminals, accusing the defendant of three prior felony convictions. A trial was had on the habitual criminal information and a jury found that defendant had been convicted previously of the three felonies described in the information. Because of his status as an habitual criminal a life sentence was imposed on defendant for the crime of perjury.
¶4Defendant filed a notice of appeal from the life sentence of April 28, 1959, but did not prosecute the appeal and it was dismissed by this court on July 26, 1960.
¶5While his appeal was still pending in this court defendant, who was then confined in the penitentiary in Marion county, on March 9, 1960 filed in the circuit court for that county a petition for a writ of habeas corpus. The habeas corpus proceeding was still pending on May 26, 1959 when the Post-Conviction Hearing Act (Ch 636, Oregon Laws 1959) became effective, and was converted into a proceeding under the new act pursuant to what is now ORS 138.510(4). In the post-conviction proceeding the circuit court for Marion county found that one of defendant’s three prior eon*410victions was for the crime of theft from interstate commerce and should not have been considered as a prior conviction within the meaning of the habitual criminal statutes in effect at the time of defendant’s trial and sentence. Based on such finding the court vacated defendant’s life sentence and remanded him to Baker county for further proceedings.
¶6After his return to Baker county defendant filed a motion in arrest of judgment on the ground that the facts stated in the perjury indictment did not constitute a crime. On April 26, 1962 the court allowed the motion by an order which read in part as follows:
“… * the facts stated in the indictment returned by the grand jury on December 19, 1958, and seeking to charge the defendant with the crime of perjury, do not constitute a crime, and it is therefore ordered that the jury’s verdict dated March 10, 1959, purporting to find him guilty as charged in the indictment, is vacated and held for naught, and that no judgment be rendered thereon, and the said indictment is hereby in all things set aside and the defendant is restored to the same situation in which he was before the said indictment was found.”
¶7The defendant was recommitted to custody pursuant to ORS 136.880 to answer to a new indictment if one was found. The state did not resubmit the case to the grand jury but appealed to this court.
¶8The question now before us is whether the setting aside in a post-conviction proceeding of an excessive sentence and the remanding of the prisoner for the imposition of a lawful sentence authorizes the court to which the prisoner is remanded to re-examine the proceedings prior to verdict, or whether the authority *411of said court is limited only to the imposition of a lawful sentence.
¶9A motion in arrest of judgment is authorized by ORS 136.810 for “either or both of the causes specified in subsections (1) and (4) of ORS 135.630, and not otherwise.” The cause specified in subsection (4) of ORS 135.630 is that the facts stated in the indictment do not constitute a crime. That is the ground relied on by the defendant.
¶10The statute permitting the filing of a motion in arrest of judgment provides that the motion must be filed “within the time allowed to file a motion for a new trial, and both such motions may be made together and heard and decided at once or separately, as the court directs.” A motion for a new trial in a criminal action must be filed “within 10 days after the filing of the judgment.” ORS 136.850 and ORS 17.615.
¶11It is obvious from the foregoing that the motion in arrest of judgment in this case should have been filed within 10 days after the entry of the judgment on April 28, 1959. No such motion was filed, nor was the sufficiency of the indictment challenged on the appeal which was abandoned after a notice of appeal was filed.
¶12To permit the filing of a motion in arrest of judgment when the case was remanded for the imposition of a lawful sentence would in effect give the defendant a delayed appeal. If defendant can file a motion in arrest of judgment, he can also file a motion for a new trial on the ground that error was committed in the admission of evidence or in the instructions to the jury. Such a result would be repugnant to both *412the spirit and letter of our post-conviction procedure act, which is designed not to give a delayed appeal but to provide a remedy for any denial of constitutional rights or to correct an excessive sentence.
¶13We think our decisions in Landreth v. Gladden, 213 Or 205, 324 P2d 475 (1958), Cannon v. Gladden, 203 Or 629, 281 P2d 233 (1955), and Gordon Sayre Little v. Gladden, 202 Or 16, 273 P2d 443 (1954) are highly persuasive, if not controlling. Each of those cases was a habeas corpus proceeding in which it was found that an excessive or defective sentence had been imposed. In each case the prisoner was remanded to the lower court in which he had been convicted for the imposition of a lawful sentence. In each case it was held that the invalidity of the sentence did not impair the validity of the proceedings prior to sentence.
¶14We hold that the authority of the circuit court for Baker county was limited upon the remand to the imposition of a lawful sentence upon defendant. The order in arrest of judgment is reversed and the case remanded to the circuit court for Baker county with instructions to impose upon defendant a lawful sentence for the crime of perjury of which he was found guilty.
¶15ON PETITION FOR REHEARING
¶16The 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,
¶17*414The 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.”
¶18The 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 *41565. 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.
¶19The 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.
¶20The petition for rehearing is denied.
¶21 April 28, 1959.