Sumpter v. State

Decision Date28 January 1976
Docket NumberNo. 575S130,575S130
Citation264 Ind. 117,340 N.E.2d 764
PartiesJohnnie Marie SUMPTER, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
CourtIndiana Supreme Court

John D. Clouse, Evansville, for appellant.

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

HUNTER, Justice.

Appellant was convicted after jury trial of living in a house of ill fame. 1 On appeal this conviction was reversed because the record contained '. . . no direct evidence of appellant's sex . . ..' Sumpter v. State (1973), Ind.App., 296 N.E.2d 131, 133. We accepted the state's petition to transfer the matter to this Court and modified the Indiana common law rule on proof of sex to provide that trial courts may take judicial notice of a defendant's sex. Sumpter v. State (1974), Ind., 306 N.E.2d 95. The effect of such notice is the creation of a rebuttable presumption sufficient to establish a prima facie case where the defendant 'fails to produce any competent evidence to the contrary.' Id., at 99. Upon review of the other questions presented by appellant, we affirmed the conviction but remanded the cause to the trial court 'for determination of the defendant's sex pursuant to the procedures set out herein.' Id., at 104.

On remand appellant objected to being retried upon the issue of sex, contending that the procedure announced in our opinion ran afoul of various state and federal constitutional provisions. The motion was overruled and a hearing was held before the trial court. The hearing commenced with the trial court taking judicial notice that appellant was a female person. Appellant rejoined by offering into evidence selected portions of a medical treatise describing various genetic and pathological conditions which make it difficult (if not impossible) to determine an affected individual's sex by external physical observation. Finding this evidence insufficient to rebut the presumption, the trial court entered judgment. Thereafter, appellant filed a motion to modify the judgment, which was overruled. Appellant filed a motion to correct errors assigning as error the overruling of all prior motions. From the overruling of the motion to correct errors appellant appealed to the Court of Appeals. Since the appeal arises from our remand, the Court of Appeals transferred the case directly to us.


We first address appellant's claim that the effect of the remand was to place appellant twice in jeopardy in violation of federal and state constitutional guarantees. There is no doubt that the proceedings on remand were 'devoted to the resolution of factual issues going to the elements of the offense charged,' and therefore at odds with the constitutional policy against multiple trials. See e.g., United States v. Jenkins (1975), 420 U.S. 358, 95 S.Ct. 1006, 43 L.Ed.2d 250.

The contour of the federal double jeopardy provision is not so symmetrical as to exclude all conflicts, however. While exceptions to the ban on repeated attempts to convict 'have been only grudgingly allowed,' see United States v. Wilson (1975), 420 U.S. 332, 95 S.Ct. 1013, 43 L.Ed.2d 232, some do obtain. When a defendant who has been adjudged guilty wins reversal of an unsatisfied conviction, the Double Jeopardy Clause does not bar his retrial. 2United States v. Ball (1896), 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300; Bryan v. United States (1950), 338 U.S. 552, 70 S.Ct. 317, 94 L.Ed. 335; United States v. Tateo (1964), 377 U.S. 463, 84 S.Ct. 1587, 12 L.Ed.2d 448; United States v. Ewell (1966), 383 U.S. 116, 86 S.Ct. 773, 15 L.Ed.2d 627; North Carolina v. Pearce (1969), 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656; Chaffin v. Stynchcombe (1973), 412 U.S. 17, 93 S.Ct. 1977, 36 L.Ed.2d 714.

The rationalization of this exception has traveled under the labels of 'consent,' 'waiver,' and 'continuing jeopardy.' These verbalizations have recently been criticized by the United States Supreme Court. See e.g., Breed v. Jones (1975), 421 U.S. 519, 95 S.Ct. 1779, 44 L.Ed.2d 346, 358; United States v. Wilson, supra, n. 11; North Carolina v. Pearce, supra, n. 18. The necessity for such an exception continues, however, and its explanation currently lies 'in (an) analysis of the respective interests involved,' see Breed v. Jones, supra. Those interests are brought sharply into focus by comparing Mr. Justice Brennan's statement in his concurring opinion in Ashe v. Swenson (1970) 397 U.S. 436, 459, 90 S.Ct. 1189, 1202, 25 L.Ed.2d 469, 484, 'one must experience a sense of uneasiness with any double-jeopardy standard that would allow the State this second chance to plug up the holes in its case,' with Mr. Justice Harlan's statement in United States v. Jorn (1970), 400 U.S. 470, 483--84, 91 S.Ct. 547, 556, 27 L.Ed.2d 543, 556, 'Certainly it is clear beyond question that the Double Jeopardy Clause does not guarantee a defendant that the Government will be prepared, in all circumstances, to vindicate the social interest in law enforcement through the vehicle of a single proceeding for a given offense.'

Neither federal nor state double jeopardy provisions barred the remand of appellant's cause.


Before the hearing on remand, appellant objected to being tried, asserting that a hearing before the bench alone would violate appellant's constitutional right to trial by jury. The wording of the objection and the trial court's action in overruling the motion suggest that the parties and the court approached the question of appellant's right to a jury trial firmly convinced that our mandate denied such right. It did not. We believe the parties reached this erroneous conclusion from an inadequate understanding of the function of judicial notice in the case at bar. To the extent that our opinion failed to elucidate the relevant considerations for the parties' guidance in this matter, we confess error. Because the presumption was not rebutted, however, there was no need for jury trial on the issue of appellant's sex.

Judicial notice of adjudicative facts 3 was initially permitted only in situations where 'the fact is so commonly known in the community as to make it unprofitable to require proof, and so certainly known as a make it indisputable among reasonable men.' McCormick, McCormick Cormick on Evidence, § 329 (2d ed. 1972). When so applied, judicial notice operates as a matter of law, whether the case be tried with or without a jury. There can be no issue of fact where the noticed matter is unquestionably true. See Comment, 'The Presently Expanding Concept of Judicial Notice,' 13 Vill.L.Rev. 528, 542--43 (1968). Moreover, since the right to trial by jury extends only to debatable issues of fact, there can be no conflict with that right.

With an eye upon judicial efficiency, professors Wigmore and Thayer urged that judicial notice ought to encompass facts which were unlikely to be challenged, as well as those which were indisputable (emphasis added). See Davis, 'A System of Judicial Notice Based on Fairness and Convenience,' in Perspectives of Law 81 (1964). The lead case espousing this view of judicial notice is Fringer v. Venema (1965), 26 Wis.2d 366, 132 N.W.2d 565, wherein the Supreme Court of Wisconsin held that judicial notice was appropriate not only where the fact was common knowledge, but also where the fact could be verified 'to a certainty by reference to competent authoritative sources.' 132 N.W.2d 569. In accordance with the holding in Fringer is Rule 201(b) of the Federal Rules of Evidence which provides:

'A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.'

Applying this broader standard of judicial notice, the Fringer court judicially noticed that a bull old enough to breed fifteen heifers in a period from May to September was at least six months old at the time of the breeding, the age required to impose strict liability upon the owners of trespassing cattle under the Wisconsin statute.

Under this broader doctrine of judicial notice, a fact which is true ordinarily, but not universally, may be noticed. If the party against whom the fact is noticed is not permitted an opportunity to demonstrate that the fact is not true in the case at bar, a denial of due process results. The court in Fringer solved this dilemma by the application of a rebuttable presumption to the judicially noticed fact:

'We think it appropriate to apply a rebuttable presumption that the bull was six months old where the plaintiff or claimant has established that the defendant owned the bull, allowed him to run at large, and that the bull escaped his enclosure and did damage to the property or person of another.

'The application of a rebuttable presumption does not impose an unfair burden upon the owner or keeper of the bull. He is in a much superior position to know the actual age of the animal. The rebuttable presumption only requires him to come forward with some evidence as to its age and if he does, the presumption drops out and the claimant has the burden to prove the bull was six months old or older before he can recover his damage.'

132 N.W.2d 570.

A similar procedure was adopted by this Court in our opinion on transfer. We stated:

'. . . 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...

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