
    [No. 18055.
    Department One.
    December 31, 1923.]
    The State of Washington, Respondent, v. Nels Lindskog, Appellant.
      
    
    Criminal Law (68) — Withdrawal of Plea — Vacation op Judgment. Where the trial court passed upon the credibility of affiants making conflicting affidavits, the supreme court will not interfere with its discretion in refusing to set aside a conviction and allow withdrawal of a plea of guilty, in the absence of a very clear showing of fraud.
    Appeal from an order of the superior court for Spokane county, Lindsley, J., entered September 6, 1922, denying a motion to vacate a judgment and sentence, after a hearing upon affidavits.
    Affirmed.
    
      M. E. MaeJc, for appellant.
    
      Chas. H. Leavy and Louis F. Bunge, for respondent.
    
      
      Reported in 221 Pac. 582.
    
   Holcomb, J.

On August 31, 1922, appellant was arrested. On September 1, 1922, an information was filed against him charging him with unlawfully and feloniously conducting and maintaining a place for the unlawful sale of intoxicating liquor in the city of Spokane, Spokane county. On the same day he was arraigned in the superior court before Lindsley, J., the information was read to him; he was asked by the court whether he understood the nature of the charge in the information; whether he was ready to plead thereto;"whether he wished a lawyer, and was informed by the trial judge that he had twenty-four hours within which to enter his plea if he so desired. Thereupon appellant stated that he was ready to plead, and that his plea was guilty. The court immediately passed sentence upon him of an indeterminate term in the state penitentiary of from one to five years.

On September 5, 1922, appellant made a motion in arrest of judgment and sentence, asked to be permitted to withdraw bis plea of guilty and enter a plea of not guilty, alleging that bis plea of guilty was obtained by misrepresentation and fraud practiced on tbe part of tbe deputy prosecuting attorney, and that be was prevented from defending by accident and surprise. Tbe motion was supported by bis affidavit representing that certain statements and representations were made to bim by the deputy prosecuting attorney upon bis arrest, and tbe next morning before be was taken into court, that be would suffer detention in tbe county jail from that time until tbe middle of October if be defended tbe case and awaited trial, while if be pleaded guilty tbe court would sentence bim to from sixty to ninety days in tbe county jail, and bis sentence would be almost served by tbe time bis case would otherwise come on for trial if be defended. Other inducing statements by tbe deputy prosecuting attorney were also alleged. He also averred that be was a foreigner, having come to this country in 1901; that his business was that of a bar tender in a soft drink establishment; that be did not understand tbe English language well; did not understand tbe proceedings that took place in court, and that be was not guilty of tbe offense charged.

Appellant, relying upon our cases bolding that tbe procedure taken here is proper (State v. Scott, 101 Wash. 199, 172 Pac. 234, and former cases), insists that tbe trial judge abused bis discretion in denying tbe motion.

Every allegation made in tbe affidavit of appellant in support of bis motion was denied by tbe deputy prosecuting attorney specifically, and by tbe deputy sheriff who bad appellant in custody. Tbe matters which occurred in tbe presence of tbe trial judge were set forth in the counter-affidavits of the deputy prosecuting attorney and the deputy sheriff and showed that the trial judge interrogated appellant as hereinbefore set forth, and the counter-affidavits alleged that appellant spoke English well, and not brokenly, and seemed to understand all that was said to him in English. The same trial judge who received the plea of guilty and entered judgment thereon against appellant passed on appellant’s motion and weighed the truthfulness of the affidavit and counter-affidavits and the credibility of the various affiants.

Hence, the trial judge, having exercised his discretion and passed upon the credibility of the affiants, and the truthfulness of the various affidavits, we cannot interfere therewith except upon a very clear showing of fraud practiced upon appellant, or other irregularity such as to prevent him from obtaining justice. No such showing is made to appear preponderantly here. State v. Scott, supra; State v. Anderson, 109 Wash. 161, 186 Pac. 266.

The judgment must be affirmed, and it is so ordered.

MaiN, C. J., TolmaN, Parker, and Mackintosh, JJ., concur.  