*1 117 another instruction stance of which covered (1972) [ 692], 284 given. State, Hash v. [ 258] State, 770; Maxey (1969) v. 251 Ind. N.E.2d 650; Kennedy State, 209 Ind. 244 N.E.2d 376, 304 316.” Fuller v. N.E. ade Instruction No. was at Defendant’s Instructions No. 5 and quately covered Court’s merit can find no Instruction No. 9. We Court’s addition to Appellant’s contention. judgment the trial court Finding error, affirm no we below. JJ., DeBruler, Hunter, concur;
Givan, C.J., Prentice,
J.,
concur in result.
Reported at
Note. — Sumpter Marie Indiana. State Johnnie January 28, Filed 1976.] 575S130. [No. *2 Clouse, Evansville,
John D. appellant. of Diamond, Sendak, Attorney General, Theodore L. Darrel K. Attorney Assistant General, for appellee. Appellant of was convicted after trial
Hunter, J. living in ill appeal, a house of was fame.1 On this conviction reversed because the no record contained “. . . direct evidence appellant’s Sumpter of App., sex. . State, . .” 131, 133. accepted 296 N.E.2d petition We the to trans state’s fer the matter to this Court and modified the Indiana common proof law rule provide on of sex to that trial take courts Sumpter notice of a defendant’s sex. 306 N.E.2d 95. The effect such the of presumption creation of a rebuttable sufficient to establish prima facie case any where the produce defendant “fails to competent contrary.” evidence to Id., Upon at 99. review questions presented by appellant, other we affirmed conviction but remanded the cause to the trial court “for pursuant determination pro defendant’s sex to the Id., cedures out set herein.” at 104. appellant objected being upon
On remand retried contending sex, issue of in our announced opinion ran afoul of various state and federal constitutional provisions. hearing The motion was overruled and a hearing held the trial court. The before commenced with taking judicial appellant notice that trial court awas rejoined Appellant by offering person. female into evidence § 35-30-1-1, (1956). Burns 10-4220 Ind. Code describing portions various selected of a medical treatise genetic difficult pathological make it conditions which (if sex impossible) an affected individual’s to determine Finding in- this evidence physical external observation. entered presumption, sufficient to court rebut modify judgment. Thereafter, appellant filed a motion judgment, Appellant filed motion was overruled. overruling prior all assigning error the correct errors errors overruling to correct the motion motions. From the appeal Appeals. appellant appealed Since Court of remand, Appeals transferred from our Court arises directly to us.
I. appellant’s the effect of first claim We address jeopardy violation place remand was twice guarantees. no There federal constitutional and state *3 the proceedings “devoted to on remand were doubt going to the resolution factual issues elements of charged,” therefore odds constitutional offense and at with against multiple e.g., policy v. trials. See United States 1006, Jenkins, (1975) 358, 250. U.S. S.Ct. 43 L.E.2d 420 95 provision jeopardy The contour of the federal double symmetrical conflicts, all however. While so as to exclude repeated attempts
exceptions convict on ban allowed,” grudgingly see United “have been 1013, Wilson, 332, (1975) 420 95 States v. U.S. S.Ct. 232, a defendant who some do obtain. When 43 L.Ed.2d guilty adjudged of an con reversal unsatisfied has wins been viction, Jeopardy not bar retrial.2 Clause does his Double Ball, Ball. is United v. In reversal The seminal decision States 2. by indictment, not insufficient necessitated a defective evidence. was Supreme States, Bryan decision United States Court affirmed v. United Appeals remanding the case Fifth Circuit Court because there was court for new trial insufficient the district authority proposition As for the conviction. sustain constitutionally inoffensive where determination remand was insufficient appellate tribunal, Bryan an evidence was first made Ball-type upon where the errors were cases “errors of court relied 120 1192, v. (1896) 662,
United States
16 S.Ct.
Ball,
163
U.S.
552,
v. United
300; Bryan
States,
41
(1950) 338 U.S.
L.Ed.
States v.
Tateo,
(1964)
317,
335;
70
S.Ct.
94 L.Ed.
United
v.
463,
448;
1587,
377 U.S.
States
84
12 L.Ed.2d
United
S.Ct.
627;
Ewell,
773,
(1966)
L.Ed.2d
116,
383
86 S.Ct.
15
U.S.
2072,
711,
v.
Pearce, (1969)
North Carolina
89 S.Ct.
395 U.S.
17,
v.
656;
Stynchcombe, (1973)
23
412
L.Ed.2d
U.S.
Chaffin
1977,
93 S.Ct.
The rationalization
of this
traveled
under
“consent,” “waiver,”
“continuing
labels of
jeopardy.”
These
recently
verbalizations have
been criticized
v.
United
Supreme
e.g.,
(1975)
States
Jones,
Court.
Breed
See
519,
421
1779,
346, 358;
U.S.
95 S.Ct.
44 L.Ed.2d
United States
v.
Wilson, supra,
11;
Pearce,
v.
supra,
n.
North Carolina
n.
necessity
exception continues,
for such
however,
an
explanation currently
analysis
respective
its
lies “in an
v.
involved,”
Jones, supra.
interests
see Breed
interests
Those
brought sharply
are
by comparing
into focus
Mr. Justice
concurring
Brennan’s statement
in his
in Ashe
Swenson, (1970)
436,
1189,
459,
397 U.S.
90
L.Ed.2d
S.Ct.
25
469, 484,
experience
“One must
sense of
a
uneasiness with
illogic
provision
law.”
reprosecution
While the
aof
when
bars
a
does not bar
or trial
acquittal,
court finds insufficient evidence and
but
orders
reprosecution
finding
appel-
where the same
is made
pointed
late
out,
tribunal
Note,
Jeopardy:
has been
see
“Double
A New
Appellate
Trial After
Evidence,”
Reversal For Insufficient
U.
31
CHI.
L.
(1963),
Supreme
REV.
nevertheless,
apparently
Court has
rejected any
insufficiency
distinction between
of the evidence and other
law,
errors of
see United States v. Tateo. Some members of the Court
Bryan type
limit
would
remand
the situation where the
trial,
e.g., Sapir
has asked
States,
new
see
United
422,
(Douglas, J.,
U.S.
concurring) ;
75 S.Ct.
Neither nor double federal state appellant’s the remand of cause.
II. being remand, objected hearing on Before hearing tried, asserting that would before the bench alone right by jury. appellant’s constitutional to trial violate wording objection trial action in over- court’s suggest parties ruling the motion and the court approached jury question appellant’s trial ato right. firmly convinced that our mandate It did denied such parties not. reached this erroneous believe conclusion We understanding inadequate from an of the function of extent notice in case a bar. To the failed our parties’ guid- the relevant considerations elucidate matter, presump- error. Because the ance in this we confess rebutted, however, jury there tion was no need for appellant’s sex. the issue on adjudicative initially permitted notice of facts3 was Judicial commonly “the is so in situations where fact known unprofitable require proof, community make it as to among certainly indisputable make it known and so McCormick, ON men.” McCORMICK reasonable EVIDENCE usually questions what, “Adjudicative answer the facts who did adjudicative intent; when, how, why, or where, with what motive facts jury go roughly to a in a Davis, kind facts case.” K. are 1972). TEXT, (3rd ed. §7.03 LAW ADMINISTRATIVE *5 122 (2d 1972). operates 329 ed. applied, judicial When so notice law,
as a matter of whether the case tried with or without be jury. a There can be no of fact where the noticed matter issue Presently is unquestionably true. See Ex- Comment, “The panding Concept Notice,” of Judicial VILL. L. REV. (1968). Moreover, by jury 542-43 since to only fact, extends to debatable there con- issues can be no right. flict with that eye upon judicial efficiency, Wigmore
With an Professors Thayer urged judicial ought encompass notice to unlikely facts which challenged, were to be well those as indisputable which were [emphasis Davis, “A See added]. System of Judicial Notice Based on and Conven- Fairness ience,” in (1964). OF PERSPECTIVES lead LAW The espousing case judicial Fringer this view of notice is Venema, (1965) Wis.2d 132 N.W.2d wherein Supreme judicial Court held of Wisconsin was appropriate not knowledge, where fact common but also where could certainty fact be verified a “to competent to reference authoritative sources.” 132 N.W.2d holding Fringer accordance with the in (b) is Rule FEDERAL RULES OF provides: EVIDENCE which judicially “A noticed fact subject must be one not to reason- dispute able generally it is either known within jurisdiction the territorial capable of the trial court or ready of accurate determination resort to sources accuracy reasonably questioned.” whose cannot be Applying notice, broader standard Fringer judicially enough a court noticed that bull old breed fifteen period May September heifers in from was at least six breeding, age required months old at the time of impose liability upon trespassing strict owners of cattle under the statute. Wisconsin judicial notice,
Under this broader doctrine of a fact which ordinarily, universally, true but not is If the noticed. party against per- is whom the fact noticed opportunity fact mitted demonstrate that the bar, process at true denial due Fringer this dilemma results. court solved judicially no- application of a presumption rebuttable ticed fact: presumption apply appropriate to a rebuttable “We think *6 or plaintiff the where six old
that the bull was months the owned that the defendant claimant has established escaped bull, large, the bull him to run at and allowed of damage property person the or did his enclosure and another. im- presumption application “The of a rebuttable keeper of the
pose bull. upon or the owner an unfair burden actual the superior position to know He is in a much requires age presumption rebuttable animal. The age evidence to its him come with some as forward drops claimant does, presumption out if he or prove the old six months has bull was burden damage.” 570. can his 132 N.W.2d older recover before he adopted by procedure this in our A was similar Court on transfer. We stated: time, precious judicial rebutta- . . “. In order to conserve presumption arises once ble of the defendant’s sex judge presumption judicial This fact. takes such prima to constitute is sufficient in State when favor defendant facie contrary. any competent produce evidence
fails challenges presumption However, once the defendant introducing forever evidence, passes competent presumption then evi- from the case. The affirmative dence, a reason- establish defendant’s must sex [emphasis 306 N.E.2d able doubt.” added]. effect of a rebuttable it is clear presumption, Given the jury entitled to have the determine that a defendant becomes judicially has the fact been noticed whenever which any evidence, “competent presents or admissible defendant di “dispute presumption.” rect or circumstantial” [s] Young State, (1972) See case, original opinion judicial our noted that notice of appropriate
sex would be because: being generally “The sex of a human its most obvious being and, characteristic. can look at We another human very degree high with a sex.” certainty, her ascertain or his remand, appellant On introduced the circumstantial above, described merely but such evidence a broadside at was the underlying upon basis which the trial took court appellant’s notice of showing appellant sex. There no any was afflicted with conditions described Hence, medical text. the evidence introduced dispute failed to presumption. The trial court was correct finding presumption. such evidence insufficient to rebut the being There disputed no question appellant’s of fact to the sex, there was no for a need trial.
III. Appellant urges establishing the new sex a criminal separation was in violation of the power provisions Alternatively, of the Indiana Constitution. *7 appellant argues that procedure we failed to follow the set in R. forth Ind. promulgation Tr. P. for the “additions, of changes procedure.” modifications and of rules of arguments We deem these to be merit. To without legislature extent judicial notice, has been concerned with it judicial has been with concerned laws, notice of not facts. e.g., seq. (Uniform See Ind. Code 34-3-2-1 et Judicial Notice Foreign Act). only of Law relating The judicial trial rule to notice, 9.1(E), R. provides Tr. P. that presump- “Neither tion of nor law matters of which be taken in pleading.” be stated a need concerning proof a law facts is not matter which the solely placed province legislative
constitution within the modifying proof In the common law rule branch. on sex, established, but acknowledge procedure we a new any reject appellant’s announced rule so thesis that procedure adopted duly rule trial Court must a either be analysis sidesteps passed by legislature. an aor law Such law. great the common for to niche reserved additions IV. violating appel- procedure
Appellant further attacks right reason- a prove its the state lant’s have right right doubt, confront and the able witnesses post be free ex laws. from facto Young v. State
For the
in
reasons stated
our
proof
therein,
presumption
burden
cited
a
alter
quantum
proof required to sustain a conviction.
and the
literally
disputable
must
It has been noted that “facts
Presently
indisputable
Comment,
procedurally.”
“The
be made
Notice,”
L. REV.
Expanding Concept of
Judicial
VILL.
(1968). By
opportunity to
giving appellant an
fact,
challenging
judicially
we
present
noticed
presump-
possible
destroy have
for
made
require
proven
tion,
thereby
fact be
in
destroyed,
ordinary
presumption
manner.
been
When
has
right
carefully
preserves
of confrontation
meaningful.
situation where such
argument
con
Appellant’s
post
ex
facto
is meritless. The
provisions apply only to
laws enacted
stitutional
criminal
legislative
Russell, (1845)
V. contention Appellant’s final is that the court erred living modify appellant’s failing on the basis that sentence keeping a ill fame lesser included offense house of correspond. penalties should house and such a offense, offense to lesser and included order *8 impossible greater to commit it must such having offense without lesser committed the first offense. Certain v. the element of inherent Since control keeping a house of ill fame could be exercised some living
means other than fame, in a house ill we hold living in a house ill fame is not lesser and included keeping offense properly of ill house fame. The trial court appellant’s overruled motion. foregoing
For all the reasons, judgment affirmed. Judgment affirmed. C.J.,
Givan, Arterburn, J., concur; Prentice, J., concurs opinion; in result DeBruler, J., with opinion. dissents with
Concurring
Opinion
concur
J.
I
I
result herein
Prentice,
because
regard the
purpose
determining
remand for the
Appellant’s
sex to be erroneous. The
majority
result
reached
my
amounts to a
adoption
correction of that error
dissenting logical
at
Dissenting Opinion establishing J. The DeBruler, womanhood statutory aas element of offense of which stands deny appellant right convicted served by jury to trial guaranteed by 1, 19, Art. of the Indiana Constitution and § compelling is invalid as a defendant to incriminate himself in privilege against violation of the guaran- self-incrimination teed the Fifth and Fourteenth Amendments to the United States Constitution and Art. Con- Indiana stitution. case, judge, jury, rather than the determined statutory proved
that a element the offense have Why a reasonable deny existed does this doubt. right by jury? Appellant certainly had *9 Bill granted by by right the jury. is Indiana to trial That Rights provides: 1, 19, of in Art. which the whatever, jury have the shall “In all criminal cases
right to facts.” the and the determine law 259, 409, this State, 2 (1936) 210 N.E.2d In Dedrick Ind. v. right jury trial to held that a trial the Court court denies in factual jury if it the to make an affirmative mandates 268, State, Ind. 195 N.E. (1935) ference. Walter v. this Court stated: settled, is held, repeatedly has well that it
“It is been jury to instruct the error for the court in criminal action any ultimate what establish evidence will be sufficient to constitutional fact. right at 239. the Such an instruction is invasion jury Ind. of the to for itself.” determine the facts Here, appellant the issue of was a woman whether If entirely jury taken court. from the and decided the single proceeding before had tried in a been they jury, instructed were have been that would appellant to been bound consider that womanhood had proved beyond Indiana, a reasonable under our Con doubt. In stitution, determining procedure by judicial for this sex right jury. simply trial most a denial of to The is do, a trial court can consistent with the by jury, particular point inference is to out that would State, reasonable. Gann
381; Miller 58 N.E.2d specifically has made the claim While privilege against procedure is violative self-incrim- light ination, appropriate to consider this is issue challenges closely call is- related constitutional sue out. establishing way. sex works in this The that he takes
judge notice that the announces accused point, judicially-noticed or woman. At this man either a fact, standing satisfy more, alone without cannot serve process due statutory prove burden the State to element of sex point, a reasonable doubt. At the fact this weight evidentiary support not have sufficient force or However, judicially-noticed gain a conviction. fact can evidentiary weight additional and sufficient force if the or accused produce remains silent or sufficient fails to alleged charge. indicate he the sex It inability therefore becomes clear that or silence negate against has force of evidence and is used accused as affirmative evidence which the must of that State prove. quality judicially-noticed Silence elevates the *10 beyond certainty fact to a reasonable doubt and increases probability of conviction. Silence accused in a used criminal case cannot be guilt. California, evidence of v. 380 U.S. Griffin 106; Rowley S.Ct. L.Ed.2d v. 646; State, (1933) Keifer 454, 184 accused, adopted N.E. 557. If under the here, attempt produce does to to evidence rebut judicially-noticed fact, proof this silence serves as of that required prove which the is State to convict.
If attempt an testifies in produce accused sufficient judicially-noticed fact, to rebut the testimony compelled incriminating. be Such testimony com- pelled, because the accused knows his silence neces- will sarily against establish one of the elements of the offense beyond him a reasonable doubt and that, also if he testify, on the issue will lost. be testimony may incriminating, because, Such if it is in- sufficiently persuasive, judicially-noticed serves to raise the certainty Placing fact a reasonable doubt. production upon burden accused is in conflict with against privilege self-incrimination, when the fact which produce the accused must some statutory evidence about is a charge element critical of the criminal therefore and is guilt. determination Reported at 340 N.E.2d Note. —
Sam Earl Lake Indiana. State January 28, 1976.] 575S128. Filed
[No. Stanley, Bend, appellant. William P. of South for Sendak, Attorney General, L. Theodore B. Lawrence O’Con nell, Attorney Deputy General, appellee. *11 Defendant-appellant Lake was indicted in two
Hunter, J. possession counts for delivery and of a controlled substance (heroin). by jury, Defendant was tried convicted on both counts, period twenty years sentenced a determinate $2,000. fined His motion errors to correct overruled appeal appeals. he At the heart of this are statements made prosecutor during closing argument, separately or cumulatively, operated either contends deny trial. him a fair closing argument, prosecutor
In the told the