Joseph Clark Mccarthy v. Adele Marianne

Appellant was convicted after jury trial of living in a house of ill fame.[Footnote 1] On appeal, this conviction was reversed because the record contained "... no direct evidence of appellants sex... ." Sumpter v. State, (1973) Ind. App., 296 N.E.2d 131, 133. We accepted the states 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 defendants sex. Sumpter v. State, (1974) 261 Ind. 471, 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 defendants sex pursuant to the procedures set out herein." Id., at 104.