Concurring Opinion
Emmert, C. J.Although this court has nothing to do with legislative policy which relieves criminal sexual psychopathic persons from punishment under the criminal statutes of this state, Chapter 124 of the 1949 Acts (§§9-3401 to 9-3412, Burns’ 1942 Replacement, Supp.), does present so many changes in the existing laws with reference to the punishment of those who are not insane, that a critical analysis should be made of the various provisions to determine whether the act offends the constitutional limitations placed upon legislative action.
*644Many grave offenses against persons and property may be a result of a criminal sexual psychopathic mind. Without attempting to make a complete list, it is sufficient to note the following: Arson, mayhem, burglary, robbery, as is the charge in the case under consideration, automobile banditry, kidnapping, larceny, rape, incest, adultery and fornication, seduction, prostitution, sodomy, contributing to delinquency and malicious trespass. Under the definition in §9-3401, Burns’ 1942 Replacement, Supp., such a psychopathic person may know and appreciate that his acts are vicious and criminal and dangerous to life and person, and he may have sufficient willpower to refrain from committing such antisocial acts, yet under the extraordinary provisions of the act it is possible for him to escape prosecution for the crime, or even after conviction he may never be sentenced, for a finding that he is a criminal sexual psychopathic person grants him a pardon from the criminal offense.
In this case the respondents in reality represent the State of Indiana, and although respondents have not asserted the act is unconstitutional, the state is not in a position to waive the unconstitutionality of any provision. The fact that an issue is not properly raised does not prevent us from judicially noticing our Constitution and the Fourteenth Amendment under the well recognized rule that this court, within its discretion, may consider errors not properly presented. Big Creek Stone Co. v. Seward (1895), 144 Ind. 205, 42 N. E. 464, 43 N. E. 5; C. C. & St. L. Ry. Co. v. Moore (1907), 170 Ind. 328, 82 N. E. 52, 84 N. E. 540; Martin v. Martin (1881), 74 Ind. 207, 210, 211; Thompson v. State (1946), 224 Ind. 290, 66 N. E. 2d 597; White v. White (1935), 208 Ind. 314, 317, 194 N. E. 355, 196 N. E. 95, 96; Mack v. State (1932), 203 Ind. 355, 362, *645180 N. E. 279; Travelers’ Ins. Co. v. Prairie School Township et al. (1898), 151 Ind. 36, 41, 49 N. E. 1, 51 N. E. 100. See also Fisher v. U. S. (1946), 328 U. S. 463, 66 S. Ct. 1318, 90 L. Ed. 1382. It is in the imperative public interest that the constitutionality of this act be determined at the first opportunity. If the act should be declared unconstitutional in some subsequent case before this court, many persons may be committed to the Indiana Council for Mental Health and confined in state institutions when they should have been in some penal institution, or may have been acquitted by a court or jury. A subsequent opinion by this court holding the act unconstitutional would make the commitments at least voidable if not absolutely void, thus raising many complicated legal problems which should be settled now.
Section 1 of the act defining a criminal sexual psychopathic person makes it clear the act was intended to exclude insane or feebleminded persons, yet it applies to those with mental disorders who have criminal propensities to the commission of sex offenses. Section 9-3401, Burns’ 1942 Replacement, Supp. Section 3 of the same act, §9-3403, Burns’ 1942 Replacement, Supp., states the act shall apply to any person “charged with a criminal offense, except the crime of murder or manslaughter, or rape on a female child under the age of twelve.” The issue is presented to the trial court by a statement in writing “tending to show that such person is a criminal sexual psychopathic person,” filed either by the prosecuting attorney, or by someone on behalf of the defendant.
The unusual part of Section 3 is that the issue can be raised as soon as the charge is filed, or after the defendant has been convicted or has pleaded guilty, so long as judgment has not been entered upon the plea or conviction.
*646Section 4, §9-3404, Burns’ 1942 Replacement, Supp., places a mandatory duty upon the court to appoint two physicians if the statement is made by the prosecuting attorney, but gives the court a discretionary power to appoint the physicians if the statement is filed in behalf of the defendant. This section further makes it clear that unless the two physicians agree in their written reports to the court that the defendant is a criminal sexual psychopathic person, the issue cannot be tried and determined. Section 5, §9-3405, Burns’ 1942 Replacement, Supp., provides for notice and hearing by the court without a jury, and a commitment to the Indiana Council for Mental Health if the defendant is found to be a criminal sexual psychopathic person.
Section 9 of the act, §9-3409, Burns’ 1942 Replacement, Supp., provides as follows:
“No person who is found in such original hearing to be a criminal sexual psychopathic person, and such finding having become final, may thereafter be tried or sentenced upon the offense with which he originally stood charged, or convicted, in the committing court at the time of the filing of the original petition.”
It is impossible to construe the statement alleging the defendant is a criminal sexual psychopathic person as a defense to a criminal charge as is the case under §9-1132 and §9-1701, Burns’ 1942 Replacement. It cannot be a defense to the action, because it puts it within the power of the prosecuting attorney, the court and the two examining physicians to say whether the issue shall be tried. That denial of the defendant of the right to present such defense would certainly be a denial of due process of law under the Fourteenth Amendment and due course of law under §12 of Art. I of the Indiana Constitution. Moreover, the statement can be filed after conviction or a plea of guilty, which *647makes it perfectly clear the matter is not one of defense to the action. Nor is the defendant given the right to present evidence that he is in fact a criminal sexual psychopathic person, even if he obtains the most eminent and distinguished psychiatrists in the land as his witnesses, if the two physicians appointed by the court fail to agree he is such a psychopathic person.
Since the issue is not one of defense, and since finding that the defendant is such a psychopathic person brings into operation §9 of the act which prohibits a trial, or sentence on the original charge even after conviction, the act is clearly unconstitutional in that it gives the court the power to grant a pardon after conviction, in violation of §17 of Art. V of our Constitution which vests the sole power of pardon in the governor. We cannot construe the act as one granting amnesty. 39 Am. Jur., p. 525, §10.1 There have been various definitions as to what constitutes pardon. In substance “a pardon is a declaration on record by the chief magistrate of a state or country that a person named is relieved from the legal consequences of a specific crime.” 39 Am. Jur. 523. See also Biddle v. Perovich (1927), 274 U. S. 480, 47 S. Ct. 664, 71 L. Ed. 1161, 52 A. L. R. 832. But under the act the Governor does not declare of record the defendant is to be relieved from the legal consequences of his specific crime charged, hence the act’s unconstitutionality.
Sections 3 and 4 also offend §23 of Art. I of our Bill of Rights, by granting a privilege and immunity *648to one defendant not granted on equal terms to other defendants. Many different crimes may be the result of a criminal sexual psychopathic mind. For instance, two defendants who are in fact criminal sexual psychopathic persons may each be charged with arson, which can be the product of a sexual psychopathic mind. W. Norwood East, Sexual Offenders—A British View, 55 Yale Law JI. 527, 551. In one prosecution the prosecuting 'attorney may file a statement that the defendant is a sexual psychopathic person, in which event the court must appoint two physicians, who may both confirm the statement. But in the other case, the prosecuting attorney may refuse to file a statement, and the court may refuse to appoint the two physicians on the statement of the defendant, yet both defendants are sadists, and one obtains a privilege and immunity not afforded the other. If a statute should declare that a convicted defendant had the right of appeal if the prosecuting attorney consented, but no right of appeal on a defendant’s own motion without the consent of the prosecuting attorney, such a statute would clearly be a denial of equal protection of the' laws under the Fourteenth Amendment. See Dowd, Warden v. Cook (1951), 340 U. S. 206, 71 S. Ct. 262, 95 L. Ed. 215, 19 A. L. R. 2d 784.
The fact that trial by jury is denied on the issue of determining whether the defendant is a criminal sexual psychopathic person does not make the act unconstitutional. The Legislature attempted to recognize that a psychopathic person is a mental defective. Under the ancient jurisdiction of equity, mental defectives were within the control of the chancellor representing the Crown as parens patriae. McCord, Executor v. Ochiltree (1846), 8 Blackf. 15, 17, 20.2 See also Dinson v. *649Drosta (1907), 39 Ind. App. 432, 80 N. E. 32; State ex rel. Johnson v. White Circuit Ct. (1948), 225 Ind. 602, 77 N. E. 2d 298.
This court is not in a position to say the General Assembly would have passed the act had they known that §9, granting the power to pardon, was unconstitutional, nor is the remainder of the act workable without the jurisdictional provisions concerning the filing of the statement presenting the issue to the court. In the absence of such procedure the entire act becomes unworkable. Where certain provisions of an act are unconstitutional, “and the remainder of the act is not complete and not possible of performance, the whole act is void and invalid. Kelso v. Cook (1916), 184 Ind. 173, 181,110 N. E. 987, Ann. Cas. 1918E 68.” Keane v. Remy (1929), 201 Ind. 286, 295, 168 N. E. 10.
Since the entire act is unconstitutional and void, the trial judge properly refused to act on the relator’s petition.
Note.—Reported in 130 N. E. 2d 128.
. “Amnesty overlooks offense; pardon remits punishment. The first is usually addressed to crimes against the sovereignty of the state, that is, to political offenses, with respect to which forgiveness is deemed more expedient for the public welfare than prosecution and punishment. The second condones infractions of the peace of the state. Amnesty is usually general, addressed to classes or even communities—a legislative act, or under legislation, constitutional or statutory—the act of the supreme magistrate.” 39 Am. Jur. p. 525, §10.
. “Our construction, therefore, is, that the constitution does not forbid the establishment of Courts of Chancery with power, *649in addition to the usual jurisdiction of a Court of equity, of taking cognizance of and protecting the persons, rights, and property of infants, idiots, and lunatics, and of superintending and enforcing charities.” McCord, Executory. Ochiltree (1846), 8 Blackf. 15, 20.