
    [No. 269-3.
    Division Three.
    November 25, 1970.]
    
      In the Matter of the Application for a Writ of Habeas Corpus of Robert Montague, Petitioner, v. William R. Conte, Respondent.
    
    
      Robert Montague, pro se.
    
      Slade Gorton, Attorney General, and Paul J. Murphy, Assistant, for respondent.
   Per Curiam.

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.

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.  