State v. Moser
| Decision Date | 30 June 1969 |
| Docket Number | No. 8646,8646 |
| Citation | 80 N.M. 404,1969 NMSC 82,456 P.2d 878 |
| Parties | STATE of New Mexico, Plaintiff-Appellee, v. Ernest MOSER, Defendant-Appellant. |
| Court | New Mexico Supreme Court |
HENDLEY, Judge, Court of Appeals.
Defendant was sentenced to life imprisonment as a habitual criminal. Subsequently, he applied to the district court for post-conviction relief under Rule 93 (§ 21--1--1(93), N.M.S.A.1953). Based solely on the record, a hearing on the Rule 93 motion was denied. We reversed that ruling in State v. Moser, 78 N.M. 212, 430 P.2d 106 (1967) and remanded for a hearing. The hearing has now been held, findings of fact and conclusions of law filed, relief denied and defendant appeals.
The sole question presented by this appeal is whether the findings of fact made by the trial court are supported by substantial evidence.
The trial court's findings are:
'1.
'In the year 1925, the defendant, Ernest Moser, was tried and convicted of the crime of murder in Sebastian County, State of Arkansas, and was sentenced to life imprisonment to be served in the State Penitentiary of that State; that there was not introduced in evidence during said trial any confession or admission of guilt made by the defendant and during said trial the defendant was represented by at least two attorneys, Robert A. Rowe and John P. Roberts, that there was no evidence introduced at the trial concerning any physical coercion having been made on the defendant to admit his guilt; that during the trial the defenses offered by the defendant were alibi and insanity by reason of intoxication. The jury was properly instructed by the trial Court on these defenses.
'2.
'That in October of 1939, the defendant was tried and convicted in Sebastian County, Arkansas, of the crime of carnal abuse of a female under the age of 16 years and the defendant was sentenced to twelve years in the State Penitentiary of that State. That previous to the trial the defendant was given a preliminary hearing and during the trial of the case and at the time of sentencing the defendant was represented by his attorney Mr. I. Simmons, who was then a former prosecuting attorney and a competent lawyer.
'3.
'That said attorney, I. Simmons, who represented the defendant in the carnal abuse case, was not related to the prosecuting witness, Thelma Moser; that before the jury was empaneled and sworn to try the case the defendant and his attorney knew and discussed the fact that the prosecuting witness was related to one or two of the jurors who finally sat on the trial of the case, but the defendant's attorney consulted with the defendant with reference to accepting said jurors and told him, in effect, 'They are feuding with each other,' and so said attorney and the defendant decided to accept said jurors, with full knowledge of the relationship they may have had to the prosecuting witness.
'4.
'That if there was a conversation between any witness and any juror during the trial of the case, in the carnal abuse matter, no evidence was...
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...voluntarily entered his guilty plea. We affirm. On appeal we view the evidence most favorable to support the findings. State v. Moser, 80 N.M. 404, 456 P.2d 878 (1969). Findings supported by substantial evidence are conclusive on appeal. State v. Wheeler, 81 N.M. 758, 473 P.2d 372 (Ct.App.1......
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