Ayad v. State

¶1Appellant was charged by affidavit with the criminal offense of sodomy arising out of alleged homosexual *431activities between appellant and another person. Upon a plea of not guilty, trial was had before a jury and appellant was found guilty as charged. Following the jury verdict, a fine of one hundred dollars was imposed and appellant was committed to the custody of the Board of Trustees of the Indiana Reformatory for a period of not less than two (2) nor more than fourteen (14) years.

¶2Appellant’s sole assignment of error is that the trial court erred in overruling his motion for new trial. In that motion, appellant alleges that he was deprived of a fair trial by reason of certain irregularities in the proceeding and that the verdict of the jury is contrary to law in that there was insufficient evidence to support the conviction.

¶3The essence of appellant’s argument as it relates to the alleged irregularities occurring at trial is that the trial court erred in refusing to grant appellant’s motion for mistrial made on two occasions when the jury returned from its deliberations to inform the court that it was unable to reach a verdict. Briefly, the background facts are as follows: The jury received the case for deliberation at approximately 2:00 P.M. on September 20, 1967. At 8:50 P.M. the members of the jury returned and stated to the court that they were unable to reach a verdict. The appellant immediately moved for a mistrial. The court, however, after hearing argument of counsel overruled the motion and directed the jury to further consider the case. Later, at 11:10 P.M. the members of the jury again returned to open court and stated that they were still unable to agree on a verdict. A second motion was made by the appellant for mistrial but this was also overruled and the jury was again instructed to deliberate further. At 11:55 P.M. the jury returned with a verdict of guilty as charged.

¶4There appears to be a dearth of authority in this state on the precise legal issue here presented. This court has on numerous occasions held that it is within the trial court’s discretion to determine whether the discharge of the jury and the de-*432daring of a mistrial are appropriate under the circumstances of the case. Note should be made, however, that these cases normally involve the propriety of the trial court’s allowing a case to go to the jury where certain statements have come into evidence which are prejudicial to the defendant. See e.g. Gunder v. State (1968), 250 Ind. 689, 238 N. E. 2d 655; Duke v. State (1968), 249 Ind. 466, 233 N. E. 2d 159; Greenwalt v. State (1965), 246 Ind. 608, 209 N. E. 2d 254.

¶5Most cases dealing with the question of discharge of the jury for failure to reach a verdict have arisen in situations where there is a challenge to the propriety of the trial court’s dismissal of the jury and not the failure to do so. See State v. Larimore (1910), 173 Ind. 452, 90 N. E. 898; State v. Leach (1889), 120 Ind. 124, 22 N. E. 111; Fowler v. State (1882), 85 Ind. 538; Shaffer v. State (1866), 27 Ind. 131. In State v. Leach, supra,however, the following statement was made:

“The length of time that a jury should be kept together in a criminal case without a verdict is a matter very much within the discretion of the court.” 120 Ind. at 125.

¶6The rule there declared remains the overwhelming weight of authority in this country, as evidenced by the numerous cases cited in the annotation found at 93 A. L. R. 2d 627. See also 53 Am. Jur., Trial § 962. There is nothing in the record, nor does the appellant make mention of any action or statement made by the trial judge which would indicate that the jury’s verdict had been in any way coerced. Nor in our opinion does the time period during which the jury deliberated on the case appear to be unduly long so as to raise a question of coercion notwithstanding the fact that the jury had twice been directed to continue its deliberations. Consequently, we hold that the trial judge, in a legitimate use of his discretionary powers, properly overruled appellant’s motions for mistrial.

¶7Appellant next argues that the evidence, when considered *433in its entirety, is of such a dubious nature that appellant’s guilt has not been proven beyond a reasonable doubt. It is pointed out in the argument section of appellant’s brief that although there were several persons present on the evening that the alleged acts occurred, only one witness testified that he in fact saw the acts of sodomy take place; all other persons present who were called to the witness stand denied that the alleged acts occurred or indicated that they had not seen them.

¶8As we have said on occasions too numerous to require citation, this court will not weigh the evidence nor determine the credibility of the witnesses, but will look only to that evidence most favorable to the appellee and all reasonable inferences to be drawn therefrom to determine whether the conviction is supported by sufficient evidence. Applying the above guidelines, we feel compelled to affirm appellant’s conviction. One witness, William Jackson, testified unequivocally that he saw the acts of sodomy performed and described with particularity their occurrence. This testimony together with the contrary testimony of other witnesses presented a question of credibility for the jury which they resolved against appellant. It is clearly within their province to do so. The resulting verdict cannot be overturned in the absence of some legitimate basis for so doing.

¶9Finally, appellant attempts to raise an issue relating the alleged incompetence of trial counsel. No mention is made in appellant’s motion for new trial of such incompetence, however, nor did appellant attempt to bring the issue before this court under the remedies then afforded by our Supreme Court Rules 2-40 and 2-40A. See Shack v. State (1967), 249 Ind. 67, 231 N. E. 2d 36. Appellant’s only remedy at this time on the question of incompetence of trial counsel therefore would be under the post conviction remedy rules.

¶10For all the foregoing reasons the judgment of the trial court is affirmed.

¶11Judgment affirmed.

¶12*434Arterburn, DeBruler and Givan, JJ., concur. Jackson, J., dissents with opinion.