Sumpter v. State, No. 1273S261

• Docket Nº: No. 1273S261
• Citation: 261 Ind. 471, 306 N.E.2d 95
• Case Date: January 22, 1974
• Court: Supreme Court of Indiana

Page 95

306 N.E.2d 95 261 Ind. 471 Johnnie Marie SUMPTER, Appellant (Defendant Below),
v.
STATE of Indiana, Appellee (Plaintiff Below). No. 1273S261. Supreme Court of Indiana. Jan. 22, 1974.

[261 Ind. 473]

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John D. Clouse, Evansville, for appellant.

Theodore L. Sendak, Atty. Gen., Darrel K. Diamond, Deputy Atty. Gen., Indianapolis, for appellee.

OPINION ON PETITION TO TRANSFER

HUNTER, Justice.

The State of Indiana has petitioned this Court for transfer of the above cause. Defendant was convicted at trial for living in a house of ill fame. IC 1971, 35--30--1--1; Ind.Ann.Stat. § 10--4220 (1972 Supp.) The Court of Appeals reversed, holding that the prosecution failed to prove that the defendant was a female--a required element of the crime charged. 296 N.E.2d 131.

We believe the Court of Appeals correctly applied existing law when it reversed the trial court. However, we also believe that the existing law is in need of modification. Therefore, we have granted transfer. Several other issues presented to the Court of Appeals will also be considered herein.

I. It is axiomatic in the criminal law that the State must prove each and every element of the offense charged beyond a reasonable doubt. In the case at bar, the most fundamental element, i.e., that the accused be a female, was not affirmatively proved by the State. That is to say, the State failed to adduce any evidence specifically intended to establish the sex of the defendant. The record is replete with references by the State, the defense, and witnesses to the accused as 'she' and 'her.' However, no testimony or documentary evidence appears on the record [261 Ind. 474] which definitely establishes the defendant's sex. The State, according to our existing law, failed in its burden of proving the accused's sex beyond a reasonable doubt.

The burden of proving the sex of the defendant is rightly upon the shoulders of

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the State. However, we believe the method and sequence of proof is in need of revision.

The sex of a human being is generally its most obvious characteristic. We can look at another human being and, with a very high degree of certainty, ascertain his or her sex. Therefore, why couldn't a presiding judge take judicial notice of a defendant's sex? We believe he can and should.

We prescribe the following procedure with the conviction that such is wholly consistent with practical reality and common sense.

When an individual is charged with an offense, an element of which is the sex of the accused, the trial court will take judicial notice of the defendant's sex. However, the judge's finding is not necessarily conclusive of the issue. Once the judge takes judicial notice of such fact, a rebuttable presumption arises in favor of the State. This is not to say that the burden of persuasion shifts from the State to the defendant. That burden never shifts. However, this procedure imposes a burden upon the defendant of producing evidence.

This Court has succinctly stated the legal significance and nature of a presumption:

'. . . a presumption of law is not evidence nor should it be weighed by the factfinder as though it had evidentiary value. Rather, a presumption is a rule of law enabling the party in whose favor it operates to take his case to the jury without presenting evidence of the fact presumed. It serves as a challenge for proof and indicates the party from whom such proof must be forthcoming. When the opponent of the presumption has met the burden of production thus imposed, however, the office of the presumption has been performed; the presumption is of no further effect and drops from the case.' Young v. State (1972), [261 Ind. 475] Ind., 280 N.E.2d 595, quoting Commonwealth v. Vogel (1970), 440 Pa. 1, 17, 268 A.2d 89, 102.

The above represents the procedure which we herein prescribe. In order to conserve precious judicial time, a rebuttable presumption of the defendant's sex arises once the judge takes judicial notice of such fact. This presumption is sufficient to constitute a prima facie case in favor of the State when the defendant fails to produce any competent evidence to the contrary. However, once the defendant challenges the presumption by introducing competent evidence, the presumption passes forever from the case. The State, then by affirmative evidence, must establish the defendant's sex beyond a reasonable doubt.

For this Court to reverse the judgment of the trial court and discharge the appellant on a technicality is to indulge in the kind of judicial antics which so exasperate the tax-paying public and promotes public dissatisfaction with the judicial system.

II. The petitioner contends that her motion to quash should have been sustained due to the fatally defective nature of the charging affidavit. Her specific allegations are that the statute under which the prosecution was brought is unconstitutional in that it punishes for a 'status,' and not for any overt criminal act or 'crime'; that the statute is unconstitutionally vague; that the statute is violative of the Equal Protection Clause; that the statute is violative of the First Amendment. Furthermore, she argues that Count I (charging her with living in a house of ill fame) should be quashed because it is repugnant to Count II (charging her with frequenting the same place); that the affidavit did not specify the period of time of the alleged offense. The statute in question reads as follows:

'Prostitute.--Any female who frequents or lives in a house or houses of ill fame, knowing the same to be a house of ill fame, or who commits or offers to commit one (1) or more acts of sexual intercourse or sodomy for hire, shall be

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deemed guilty of prostitution, and on conviction thereof [261 Ind. 476] shall either be fined not less than one hundred dollars ($100) nor more than five hundred dollars ($500); and imprisonment not to exceed 180 days or such person may be imprisoned in the Indiana women's prison not less than two (2) years nor more than five (5) years. (Acts 1965, ch. 345, § 1, p. 1025; 1967, ch. 23, § 1, p. 28.)' IC 1971, 35--30--1--1; (Ind.Ann.Stat. § 10--4220 (1956 Repl.)).

Appellant argues that the statute imposes punishment for a 'status' rather than for overt criminal conduct. The fact of the matter is that the legislature has determined that living in a house of ill fame is a criminal offense. The legislature is empowered to proscribe conduct within the State of Indiana which it deems to be criminal. (Act 4, § 22, Indiana Constitution.) The case upon which appellant relies, Robinson v. California (1962), 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758, can easily be distinguished from the case at bar. In Robinson a state statute which made drug addiction a criminal offense was held to be violative of the Eighth and Fourteenth Amendments (cruel and unusual punishment). As applied, the statute made criminal the status of drug addition irrespective of non-use of drugs within the state. The court concluded, in essence, that no criminal act had occurred in the state. In this case, the Indiana statute in question proscribes criminal activity within the state. Unlike Robinson, there exists a nexus between the criminal act and the state.

Appellant further contends that the statute is unconstitutionally vague and, hence, offends the Due Process Clause of the Fourteenth Amendment. Penal statutes, in order to satisfy due process requirements, must be sufficiently explict so as to adequately inform individuals of ordinary intelligence of the consequences of their contemplated conduct. Bouie v. Columbia (1964), 378 U.S. 347, 84 S.Ct. 1697, 12 L.Ed.2d 894. Stanley v. State (1969), 252 Ind. 37, 245 N.E.2d 149. Appellant argues that the use of the term 'house of ill fame' is too imprecise to adequately inform individuals that their conduct is proscribed by law. We categorically reject this assertion. We [261 Ind. 477] believe that an individual of ordinary intelligence fully knows and appreciates the meaning of 'house of ill fame.' Appellant speculates that perhaps a massage parlor or bookmaking operation could be considered a 'house of ill fame.' We believe they could be--but only if prostitution, as proscribed by the statute, were practiced therein.

Appellant urges us to declare the statute unconstitutional on grounds that its application to women and not to men violates the Equal Protection Clause of the Fourteenth Amendment.

The Equal Protection Clause does not prevent a state from indulging in reasonable legislative classifications. State ex rel. Miller v. McDonald (1973), Ind., 297 N.E.2d 826. In the usual case, establishing a rational basis for the classification will be sufficient to sustain its constitutionality. Miller, supra. There are instances in which the rational basis test will be inadequate and a higher standard of judicial scrutiny is required. This higher standard of scrutiny is only triggered when 'suspect' classes or fundamental rights are involved. We know of no fundamental right to be a prostitute or to be free from prosecution for acts of prostitution. Nor, has a majority of the United States Supreme Court held that sex is a 'suspect' class. Therefore, the prostitution statute will withstand constitutional muster upon a showing of reasonableness. That is to say, if 'any state of facts rationally justifying it is demonstrated or perceived by the courts,' the statute must stand. United States v. Maryland Savings-Share Ins. Corp. (1970), 400 U.S. 4, 91 S.Ct. 16, 27 L.Ed.2d 4.

The Indiana legislature has made a policy decision that prostitution is a significant

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social problem only among females. Such a decision is clearly reasonable and, therefore, should be sustained.

Appellant argues that the prostitution statute violates the federal and state constitutional prohibitions against establishment of religion and constitutional guarantees of religious [261 Ind. 478] liberty, by giving Judaeo-Christian...