It occurs to us also that if Trowel's theory were correct, the subsequent invalidation of capital murder as defined in KRS 507.020(2) probably would have expunged the jeopardy as well. As a conviction under a void statute would itself be void and subject to collateral attack, it is difficult to see how there could be any jeopardy. Cf. Beach v. Lady, Ky., 262 S.W.2d 837, 839 (1953). Though Trowel does not seek to rest his claim of former jeopardy on the substitution of a new indictment for the one pursuant to which he was first tried, it bears mention for the sake of clarification.

I. May more than one grand jury be empaneled in the same county to function simultaneously? In Beach v. Lady, Ky., 262 S.W.2d 837 (1953), this court, in a four to three opinion, held that a circuit judge had no power to empanel a grand jury other than at a time when the court was in session. The dissenting opinion reasoned to the contrary.

The judgment was affirmed by this court in Beach v. Commonwealth, Ky., 246 S.W.2d 587. Thereafter, Beach petitioned the Oldham Circuit Court for a writ of habeas corpus which was denied. Upon appeal to this court, Beach v. Lady, Ky., 262 S.W.2d 837, it was decided that the indictment in the original case was void because it had been returned by a grand jury at a time when court was not in session. On December 14, 1953, a few days after the decision in this case, Beach was released from prison.