In RE BUCKINGHAM v. Cranor ( 1954 )

Olson, J.

Petitioner is held by respondent under a judgment and sentence valid and regular on its face. It was entered May 25, 1950, upon the verdict of a jury convicting petitioner of the crime of incest, by a court which had jurisdiction of the person of petitioner and of the subject matter of the offense charged.

These facts limit the scope of our inquiry in a habeas corpus proceeding. See In re Mason v. Cranor, 42 Wn. (2d) 610, 612 et seq., 257 P. (2d) 211 (1953), and cases cited. Apparently recognizing that limitation, petitioner pleads that certain rights guaranteed to him by the constitution of the state of Washington or of the United States have been violated. He argues that we are obliged to examine these contentions, under the 1947 amendment to the statute pertaining to habeas corpus. RCW 7.36.130(1), 7.36.140 [cf. Rem. Supp. 1947, §§ 1075(1), 1085-2].

His principal reliance is placed upon the claim that he was denied his “right to counsel” and “due process,” because of the inexperience and incompetency of counsel appointed for him, and because the early assignment of this case for trial deprived him of adequate time to prepare his defense. See State v. Hartwig, 36 Wn. (2d) 598, 601, 219 P. (2d) 564 (1950).

The facts are that, May 3, 1950, petitioner was charged in the superior court for Pacific county with the crime of in- ■ cest, alleged in the information to have been committed with his daughter, then nine years of age. May 5, 1950, the court appointed counsel for petitioner, and his case was assigned for trial May 10,1950. May 6,1950, he appeared with his counsel for arraignment and entered a plea of not guilty to the charge. On this occasion, the court asked petitioner and his counsel whether or not his trial could be commenced on May 8th, rather than on May 10th. The reason for this requested change was that the case set for trial before a jury on May 8th had been removed from the calendar, and the court desired to avoid the inconvenience and expense of having the panel of jurors report on a day when no case was ready for trial. After a consultation in the courtroom, petitioner and his counsel agreed to the trial date of May 8th. The trial was completed on that day and resulted in a verdict of guilty, upon which judgment was entered, and the sentence of life imprisonment in the state penitentiary was imposed, as provided by law, for the offense involved.

It appears from the record before us that petitioner was anxious to have his case tried at the earliest possible date, and expressed that desire. He.then hoped that he and his wife could become reconciled, and he desired to do nothing in defense of the criminal case which would prevent this reconciliation. This idea appears to have been uppermost in his mind, and, consequently, he instructed his counsel not to call certain witnesses then available. When his wife was called as the first witness in the state’s case, he caused a successful objection to be interposed, preventing her from testifying. This fact is of importance because it supports respondent’s assertion regarding petitioner’s attitude and objectives at the time of his trial. Apparently, he was confident that the jury would believe his testimony rather than that offered by the state.

We are convinced that petitioner’s actions were taken competently, intelligently, and voluntarily. His counsel acted under his directions, which, on occasion, were against the advice and judgment of the attorney. Regardless of the competency and experience of counsel, his acts were those of petitioner, and, having limited his attorney’s actions, he cannot well complain now that those acts were incompetently done.

Upon these facts, we can find no violation of his constitutional rights in either particular which he asserts. In this inquiry, it is immaterial whether or not petitioner is guilty of the offense charged. Thorne v. Callahan, 39 Wn. (2d) 43, 48, 234 P. (2d) 517 (1951). That he was mistaken in his prediction of the outcome of his trial, or of his reconciliation with his wife, cannot strengthen his present contention.

Petitioner also mistakenly attempts to rely upon a statute (Code of 1881, chapter 66, § 766, p. 158) providing that “no person shall be put upon trial on an indictment for a felony until the expiration of five days from the day of his arrest.” This contention is beyond the scope of this proceeding, and, in any event, this statute later became § 6926 of Ballinger’s Code (Rem. & Bal. Code, § 2132), and was repealed by Laws of 1909, chapter 249, § 52, p. 906.

Nor can petitioner now claim successfully that the person against whom it is alleged he committed this offense, is not his daughter. This assertion also fails because it is made too late when raised for the first time in habeas corpus, and, in this case, it is not sustained by the facts. Other arguments advanced by petitioner also cannot be considered in this proceeding.

The writ is denied.

Mallery, Schwellenbach, Hill, Donworth, and Weaver, JJ., concur.