*1 concerning questions charged in the crime he his involvement was well of the fact the man automobile aware whose taking appellant he died, was was accused of had and that suspected having clearly The record in case killed him. every demonstrates had constitutional warning required prior any questioning law independent proved by evidence admissions him. State fatally injured that the series decedent had in fact been properly severe neck. The obtained blows to head and jury of the sufficient enable the confession identify him fact as the who had in caused the death of the decedent. We find no error in this record. is, therefore,
The trial court affirmed. C.J., concur; Hunter, DeBruler, JJ., Arterburn and Jack- son, J., concurs result.
Note.—Reported N. in 263 E. 2d 368.
Haskett Indiana. petition rehearing [No. 569S105. Filed November 1970. No filed.] *2 Bowman, Jr., Indianapolis, Samper, Ferdinand Forrest appellant. Sendak, Attorney Squier General, L. Edward Theodore Attorney Neal, Deputy General, appellee. finding from This is an
DeBruler, J. Court, contempt appellant County in Marion Criminal Division I. against appel- 27, 1961,
On November an affidavit was filed Three “peeping” Burns lant for in violation of 10-4910. days petition hearing to the Prosecutor filed for a later appellant psycho- whether was a criminal sexual determine through meaning path ch. 1 of Acts within §§ being through 9-3401 9-3412. the same §§ appellant psychopath. be a criminal trial sexual court found 10, 1967, the court sustained belated July trial On discharged custody. trial him from for new motion 20, 1967, appellant the trial court ordered the September On sought have a writ of mandate to re-examined have re-examined the order to court strike trial 208
by the doctors. This Court denied the writ in State ex rel. Haskett v. Marion Court, Co. Criminal Div. I N. E. January 15, 1969,
On again appel- the trial court ordered report lant to Appellant to the doctor’s office for examination. non-compliance filed reading part a notice of as follows: respectfully “2. Defendant that he informs Court will part requires with that him of the order which comply personal by to submit to a examination each of above physicians, comply named part but will not with that requires questions the order which put him to answer all physicians part said for the reason that requiring the order the defendant questions answer all put physicians to him privilege against said violates his guaranteed by the Fifth Amendment to Constitution America, United States of questions might to answer said tend to incriminate him. states, by way “3. Defendant further illustration, answering questions put physicians himto said might expose involuntary him to an in this incarceration *3 court and cause as psychopath.—Defend- a criminal sexual ant questions further states that to answer put said physicians might expose to him said for prosecution him to against conviction of State, crimes the the United America, States of and other states of the Union.” February 13, 1969, the On trial hearing court held a on the non-compliance. notice of The open trial court directly court appellant ordered questions answer the doctors’ ap- pellant Thereupon, pursuant refused. (a), Burns 9-3404 § appellant the trial court found in direct contempt refusing the answer doctors’ questions, fined $51.00 an and set bond of (a), $100.00. Burns 9-3404 § pertinent part,reads: alleged phychopathic person “The who is examined the physicians required two questions pro- answer the physicians
pounded penalty the contempt court.” argues Appellant part (a) §9-3404 ground compels on invalid the a defendant to incrimi
209 privilege self- nate himself of his in violation guaranteed by Four Fifth and incrimination as the Constitution. Amendments the United States teenth agree. 1, addition, In 14 of the it is in violation of Art. § scope the and effect as which same Indiana Constitution has Fifth in the Amendm privilege the ent.1 privilege applicable to the states
The Fifth Amendment through Amendment. the due clause of the Fourteenth 12 Malloy (1964), 1, 1489, Hogan v. S. 84 S. Ct. 878 U. Ed. 2d 653. L. right privilege the at
The had to invoke his stage the were because interviews doctors’ part pro preliminary integral,
an of the commitment (a). privi 9-3404 The cess under this statute. Burns § stage lege investigatory claimed can be 1428, proceedings. (1967), 1, re 387 Gault U. 87 S. S. Ct. 436, v. 527; (1966), Ed. 2d Miranda Arizona 384 18 L. U. S. 694; Murphy 1602, Ed. 86 Ct. 16 L. Com S. Waterfront (1964), 52, mission New York 378 84 S. Ct. Harbor U. S. 276, Beck v. State 678; (1968), 1594, 12 250 L. Ed. 2d only extends to answers N. E. 2d 699. 235 also themselves incriminate the but that would in those would a link in chain of evi covers furnish v. U. S. prosecution. dence needed for Hoffman Overman v. 1118; Ct. 95 L. Ed. S. U. S. 483, 143 (1923), 194 Ind. N. E. questions the doctors’ were to answers to
Since hearing must sexual we be used in a criminal hearing is a criminal whether such a determine meaning Fifth and Art. Amendment within *4 incriminate him. answers would provision person reads: . . shall be The Fifth Amendment “No . 1. any compelled be a witness himself. . .” criminal case to . any prosecution. provides: person, §14, “No criminal Article himself,” compelled testify against Shall defining “AN criminal sexual The title the Act is ACT added.)2 persons. (Emphasis The first psychopathic . . .” section of the Act reads: age “Any years is suffer- person over of sixteen who ing insane feeble- a is not or from mental disorder and coupled criminal with minded mental disorder
propensities offenses, hereby sex commission of psychopathic person.” to be a criminal sexual declared (Emphasis added.) 9-3401. Burns § may charged only person The Act a be invoked with 9-3403; of certain State ex convicted sex crimes. Burns § Savery Co., rel. v. Criminal Court Marion Div. I jurisdiction 234 Ind. 130 N. E. over such 2d 128. granted as follows: person psychopathic of criminal sexual “Jurisdiction charged having with criminal offenses is vested with courts general jurisdiction (Emphasis of criminal added.) cases.” 9-3402. An from the trial may court determination be had as follows: “Appeal may from judgment taken final order or
of the appeals 3406. provided by court herein in the manner law for (Emphasis in criminal cases.” added.) Burns 9-§ Legislature believe these factors indicate that con- these sidered to be criminal in nature. Much fundamental, however, more is the that upon fact determination that a defendant is a criminal psy sexual defining psychopathic “AN ACT sexual persons, providing procedure adjudging lawful method of to be a criminal psychopathic person, giving sexual having general jurisdiction courts jurisdiction thereof, providing criminal cases their commitment and treatment, confinement to suitable institutions for their care and their parole discharge therefrom, apprehension escaped return psychopathic persons, providing place criminal sexual for time and trial, providing appeals therefrom, declaring emergency.” an (Emphasis added.) *5 may person, incarcerated chopathic the defendant be psychiatric indefinite institution for an in a state possibly for period, life. a criminal court be person “If the is found such judg- and psychopath, the in order
sexual ment to psychiatric court shall its health, person mental the division of commit such state appropriate the in an be confined division fully person have institution until such shall psychopathy.” Acts permanently and recovered from such being (d). the ch. 9-3404 same § § original If had been the tried and convicted on charge “peeping” maxi- criminal he could have received a sixty prison. (60) days mum sentence of fine and in $50.00 Burns 10-4910. hearing psychopath the see how criminal sexual do not anything except
can be in the considered nature of a determining proceeding, purposes the defend- whether may supply may ant information result in refuse to the which his indefinite incarceration. Supreme Gault, In re Court decision in
supra, Gault, positions here. The is relevant analogous juvenile the statute and an very misdemeanors; statute, are similar: both committed criminally misdemeanor; neither the none- convicted of greater theless, received both sentences would have re- than conviction; involuntarily both sulted from were procedures alleged “civil” confined under labeled which were requirements exempt the to be from due the Four- teenth Amendment. said, disposing Gault, the In re Court of the privilege the
claim that was not available to children in juvenile proceedings because the were to be court answers proceedings: used in “civil” “Against application juveniles right the to sil- argued juvenile ence, it are ‘civil’ and is ‘criminal’, apply. privilege
not and therefore not should It the statement of the the Fifth is true Amendment, the applicable is reason the States Amendment, Fourteenth com- that no ‘shall be pelled be Criminal case himself.’ witness privi- However, lege availability clear is also upon type does turn of the in which upon protection invoked, its the state- but nature of exposure or ment privilege may, admission which it invites. The example, admini- be claimed in civil or proceeding, may inculpa- strative if the statement
tory. entirely It unrealistic the Fifth would to carve out of *6 by juveniles ground Amendment all on the statements these cannot lead to ‘criminal’ the first involvement. juvenile proceedings place, ‘delinquency,’ to determine may institution, which be lead to commitment to a state must regarded purposes privilege as ‘criminal’ for of the self-incrimination. To hold otherwise would be disregard substance of the because feeble enticement of the ‘civil’ label-of-convenience which has been attached juvenile proceedings. . . purpose, least, . For this at com- deprivation liberty. mitment against ais It is incarceration will, one’s whether is called ‘criminal’ or ‘civil.’ guarantees And our Constitution that no shall be ‘compelled’ be a witness himself when he is deprivation liberty—a threatened with which this Court has of his command applied broadly generously imple- and in teaching history mented accordance with the of great the freedom.” and its office in mankind’s battle for reasoning This has been relied in the on recent case of In the Winship, Matter Court No. 31, 1970, March 7 Cr. L. 30007. adopt reasoning this hold that the last sentence of supra,
Burns §9-3404(a), is invalid because it is in conflict privilege against with the guaranteed by the Fifth Amendment to the United States Constitution and 1, 14 Indiana Art. Constitution. § Judgment reversed.
Hunter, C.J., opinion; with concurs Jackson, concurs; J., J., Arterburn, opinion dissents with J., which Givan, concurs. Opinion
Concurring Although the constitution my position on Hunter, C.J. made ality statutes criminal sexual (see dis original my case J. Jackson’s vote clear County Crim senting ex v. Marion opinion, rel. Haskett 636), I should Ind. 234 N. E. inal Court particu go opposing application, its like on record now case, i.e. larly appear in this facts as right against objection constitutional to waive his refusal Const.; Const., Art. U. S. self-incrimination. V, Amend. XIV. ap- proceedings,
Regardless characterization of the subject possible testify, if himself pellant, forced to would involuntary individual de- Before such an commitment. my liberty accorded, opinion, prived of his he must right against self-incrimination basic fundamental contemplated concept due of law. As was our Judge noted Jackson: logic justice that pro- “Neither nor sound fundamental dictates may ignored protectives in civil constitutional ceedings proceedings. in criminal and must be followed Act indetermi- end result under the nate to is incarceration for an *7 against period exposed An individual of time one’s will. procedure a that can result in his incarceration is entitled regardless the to his of procedure.” euphemistic characterization of that 234 E.N.
2d at 643. beginning are
That
to realize
the substantial
courts
rights of an individual must be afforded when
with
faced
involuntary
by
spectre
commitment
demonstrated
the
of
was
Supreme
in the case
the United States
Court
Re Gault
majority.
18
(1967),
L.
2d 527
387 U. S.
Ed.
cited
the
(4th
1969),
548;
Blalock
411
Miller v.
Cir.
F.
See also
2d
(10th
Heryford
1968),
Parker
v.
Cir.
rated Fourteenth clause Amendment due facing eventually will likewise extended in- voluntary commitment under not other been has decided, position. has this court taken nor such a Bible See (1970), v. State Clearly 253 N. 2d Ind. 254 E. 319. the purported Court has not so Winship In Re Gault, supra; hold. Re (1970), 397 U. S. 25 L. I believe I Ed. feel have demonstrated (Bible State, supra) that extreme caution must exer- programs cised in this if the area various established purpose committing individuals other than process are to remain my functional. However it offends justice require give sense of an individual to. evidence against himself where possible the end result will be in- voluntary regardless commitment to an institution of its It nature. is on this I basis that therefore concur with the majority opinion.
Dissenting Opinion adjudicated fully This this Arterburn, J. involving parties the same case and the same court in State County rel. Court, ex Haskett v. Marion Criminal Division One E. 2d 636. In N. case original an compel there was action court to the trial expunge order court to an in this case questions put all by physicians “to to him answer each pursuant to statute.” them there denied writ the trial court to and authorized order him to answer. The question presented here a contempt same second time in a questions. to answer these same for refusal If there ever ais adjudication, I think this is case such case. previous case constitutionality
In that we considered the authorizing statute mental examination ap- pellant a criminal privileged case whether he was held there he answer. We should answer because granted specifically the statute immunity from criminal *8 examining physicians anything prosecution said in a used could not be that such evidence testimony immunity granting where criminal trial. Statutes consistently grand jury, compelled, etc., have before a upheld been be in this case. and should quite appears me to be point that
There is one other Supreme Court relying upon the United States inconsistent this, when that court holds proceeding such as in a cases although criminal, it must con- juvenile proceeding, relating provisions only to constitutional form to certain jurisdiction authority cases. I fail to or criminal see what constitution Court has our proceedings, upon impose proceedings criminal other than relating only to criminal constitutional rules only applies it Amendment, which as that of the Fifth states juvenile proceedings. proceed- A to criminal or a ing determine whether is a sexual not, criminal for a court either reach over and give quasi apply character so as to constitutional rules amazing thereto is indeed an law feat of inter- provision pretation very of a constitutional its working only procedure. applies to criminal stated, judgment the reasons
For be affirmed. should Givan, concurs. J.
Note.—Reported in 263 N. E. 2d 529.
Garvin Indiana. 10, 1970. petition rehearing 270S20. Filed November [No. No filed.]