This appeal is from a judgment dismissing the petition for writ of habeas corpus filed by Claude Beach, a prisoner in the reformatory at LaGrange, against the warden thereof. The petition avers Beach was convicted of murder in the Harlan Circuit Court and given a life sentence, Beach v. Com., Ky., 246 S.W.2d 587, on an indictment which was not returned during a term of court, regular or special, and that the indictment was void.
The petition is rather long and we will not attempt to set it out, hut it will suffice to say it avers the date the indictment was returned, the statute fixing the April term of the Harlan Circuit Court, as well as the statute covering the calling of a special term of court. Filed with the petition as exhibits were duly authenticated copies of the order calling "a special session of the grand jury,” and filing the indictment, and the indictment itself, with the endorsement thereon showing it was returned in “open court.” The warden, through the attorney general, filed a response and motion to dismiss, which after admitting the fact of Beach’s conviction and imprisonment, denied generally the other averments of the petition. Without favoring us with his reason for so doing, the trial judge entered an order, “that the response is sufficient and is hereby sustained,” and dismissed the petition.
It is the contention of appellant that as there was no term of the Harlan Circuit Court in session when the special grand jury was convened, the judge had no authority to convene the grand jury, and in fact was prohibited from so doing. Therefore, the indictment returned by that body was void and appellant was denied due process of law in violation of § 1 of the 14th Amendment to the Federal Constitution, and in violation of § 12 of the Kentucky Constitution.
The Commonwealth admits the Harlan Circuit Court was not in session when the indictment was returned, but argues the indictment was not void but only irregular and as appellant did not complain of the irregularity in the impaneling of the grand jury on his trial, he is estopped now from doing so. It is further insisted by the Commonwealth that habeas corpus is not appellant’s remedy, but if any he has, it is coram nobis.
Under KRS 23.050(26) circuit court convenes in Harlan County on the first Monday in April and continues for eighteen juridical days. In 1951, the first Monday in April fell on April 2, and eighteen juridical days would end the term on Saturday, April 21. There is no order in the record showing the term was extended or that any special term had 'been called for April 25, the day the judge entered the order for the grand jury to convene, or for April 28, the day the indictment was returned. It appears from the record the judge had information “that last night two separate killings took place on the streets of the City of Harlan * * *, (and) the Court is of the opinion that it is in the interest of the public that there be an immediate investigation by a special Grand Jury * * *. Therefore, it is now ordered by the Court that a special session of the Grand Jury of Harlan County convene in the Harlan Circuit Court on Saturday morning, April 28, 1951.”
The order entered on April 28, 1951, recites: “Court met on Saturday morning, April 28, 1951, at 9:00 A.M., in special session, pursuant to the call of the court for a special session of the Grand Jury to convene.” The order then recites: “Came the following persons into open court in answer to summons served upon them to serve as Grand Jurors of the special session of the Grand Jury to convene on today, (naming twelve persons, including the foreman appointed by the court).” The order then shows the five indictments returned “into open court” including the one against appellant. The copy of the indictment appearing in the record before us contains this endorsement: “A True Bill /s/ W. B. Hollín, Foreman of the Grand Jury. Presented by the Foreman, in the presence of the Grand Jury, to the Court and filed in *839open court, this 28th day of April, 1951. /s/ W. M. Howard, Clerk of Harlan Circuit Court. Bail $25,000.00”.
It is admitted by the 'Commonwealth there had been no extension of the April term under KRS 23.110, and that no special term had been called as provided by §§ 1 or 2 of KRS 23.110. Furthermore, the Commonwealth admitted there was no compliance with KRS 29.160 relative to the drawing of the grand jury, and the record before us is silent as to where the court got the names of those who served upon this so-called grand jury. As this indictment was returned when no court was in session it is void. Meredith v. Com., 201 Ky. 809, 258 S.W. 686; Thompson v. Com., 266 Ky. 529, 99 S.W.2d 705; Harrod v. Com., Ky., 253 S.W.2d 574.
It is argued by the Commonwealth this indictment was irregular, which made it bad under § 158 of the Criminal Code of Practice, but when appellant failed to move to set it aside as provided by that section he waived the error, citing Hopkins v. Com., 279 Ky. 370, 130 S.W.2d 764. The answer to this argument is that here the indictment was void, while in the Hopkins’ case, as pointed out in that opinion, the indictment was irregular. Had the indictment before us been merely irregular instead of void, appellant would have waived the irregularities therein by not moving to set it side and the Hopkins and other cognate cases would apply. But recently we said in Harrod v. Com., Ky., 253 S.W.2d 574, 578, as the indictment was void, failure to move under § 158 would be immaterial, for there can be no waiver of a void indictment.
There are two answers to the Commonwealth’s argument that appellant’s remedy is by coram nobis and not by habeas corpus. First, the indictment is void (which of necessity makes the judgment void) and habeas corpus is available only for relief from a void judgment. Jones v. Com., 269 Ky. 772, 108 S.W.2d 812; Anderson v. Buchanan, 292 Ky. 810, 168 S.W.2d 48, 52. Secondly, for coram nobis to be available it is essential there be a hidden mistake of fact which could not have been discovered in the exercise of due diligence by appellant in time to have been presented to the court which tried him. Here, appellant or his attorney knew, or by the exercise of due diligence could have known, that no court was in session when this indictment was returned, yet no motion to quash was filed. Therefore, appellant could not aver in a petition for coram no-bis any hidden defects relative to the irreg-ulsirity in impaneling this grand jury that due diligence on his part, or that of his attorney would not have revealed. Duff v. Com., 296 Ky. 689, 178 S.W.2d 191; Spears v. Com., Ky., 253 S.W.2d 570, 573.
It might not be amiss to here remark that as appellant was convicted upon a void indictment he has not been in jeopardy. Therefore, after his release from prison on this writ of habeas corpus, the Commonwealth is not barred from submitting the case to another grand jury and trying appellant again upon an indictment which is sufficient to sustain a conviction for the killing of Avery Hensley. Runyon v. Morrow, Judge, 192 Ky. 785, 234 S.W. 304, 19 A.L.R. 632; Hodges v. Com., 198 Ky. 652, 249 S.W. 774. Nor does it follow that Beach immediately should be discharged from prison. The warden should notify the prosecuting authorities of Harlan County that he will hold Beach for a reasonable time so as to give them an opportunity to proceed against Beach in due and proper manner. Robinson v. Kieren, 309 Ky. 171, 177, 216 S.W.2d 925, 928.
The judgment is reversed with directions to the circuit court to enter one in conformity with this opinion granting appellant the writ of habeas corpus he seeks.
OAMMACK, MOREMEN and MILLI-KEN, JJ., dissent.