Opinion
No. 269-3.
November 25, 1970.
[1] Habeas Corpus — Nature — Purpose. The purpose of a writ of habeas corpus is to inquire into the legality of the petitioner's restraint and to determine whether his constitutional right to due process has been violated. The propriety of an instruction, a matter which should be challenged by appeal, is not within the scope of inquiry under the habeas corpus remedy. [See 39 Am.Jur.2d, Habeas Corpus §§ 11, 21.]
Application filed in the Court of Appeals August 6, 1970, for a writ of habeas corpus. Denied.
Robert Montague, pro se.
Slade Gorton, Attorney General, and Paul J. Murphy, Assistant, for respondent.
Robert Montague, convicted on a charge of unlawful possession of a narcotic drug, seeks to challenge the legality of an instruction by writ of habeas corpus.
[1] The purpose of a writ of habeas corpus is to inquire into the legality of petitioner's restraint and to determine whether his constitutional right to due process in law have been violated. Pettit v. Rhay, 62 Wn.2d 515, 518, 383 P.2d 889 (1963). Since the propriety of an instruction should be challenged by appeal, petitioner's application is not within the scope of the habeas corpus remedy. Massey v. Rhay, 76 Wn.2d 78, 455 P.2d 367 (1969).
The judgment and sentence under which petitioner is restrained is valid on its face. Consequently, the application for writ of habeas corpus is denied.