Concurring Opinion
Sullivan, J.The Court of Appeals in Sumpter v. State (1973), Ind. App., 296 N.E.2d 131 reversed a conviction in which the sex of the defendant was an essential element of the crime. In so doing, the court relied exclusively upon Watson v. State (1957), 236 Ind. 239, 140 N.E.2d 109.
Upon transfer, our Supreme Court acknowledged that the Court of Appeals had correctly applied existing law but stated:
“However, we also believe that the existing law is in need of modification.” Sumpter v. State (1974), 261 Ind. 471, 306 N.E.2d 95, 98. The Supreme Court, thereby, may have cast some doubt upon the controlling effect of the Watson case.
Nevertheless, unlike some jurisdictions, see Anno. 49 A.L.R. 3d 526 (1973), Indiana law holds that statutes similar to that before us make such facts- as sex or age essential elements upon which the State bears the burden of proof. See Sumpter v. State, supra; Robbins v. State (1971), 257 Ind. 273, 274 N.E.2d 255. Such matters are not affirmative defenses. Nor does our binding case law permit us to construe the statute defining the offense of armed robbery to contain an exception for defendants under the age of sixteen (16), proof of which must be borne by the defendant. Compare cases collected in 49 A.L.R. 3d supra at 533, et seq. If a change in the law is to be made it must come from our General Assembly or our Supreme Court.
Additionally, I do not view age (even in the context of an “over or under” question) as sufficiently analogous to sex *156so as to prompt remand for a “judicial notice” determination upon that issue alone. See remand order in Sumpter v. State, 306 N.E.2d supra at 104, by Justice Hunter in which one Justice joined.
Accordingly, I concur in the reversal of McGowan’s conviction and in the mandate for a new trial.
Note. — Reported at 355 N.E.2d 276.