Dissenting
Jackson, J.I am unable to agree with the conclusions reached in the majority opinion and dissent thereto.
*242Criminal proceedings were instituted against the relator on November 27, 1961, when an affidavit was filed in the respondent court charging him with being a “Peeping Tom.”
On November 30, 1961, the State of Indiana filed a petition to determine whether the relator was a criminal sexual psychopath pursuant to the Criminal Sexual Psychopathic Persons Act, Acts 1949, ch. 124, p. 328, as amended, being § 9-3401, et seq. Burns’. On April 4, 1962, after two qualified physicians filed their reports, the respondent court found relator to be a criminal sexual psychopath and ordered him committed to the Division of Mental Health of the State of Indiana. Subsequently the relator filed a belated motion for new trial which was sustained by the respondent court on July 20, 1967. On July 28, 1967, the prosecuting attorney filed a motion for the appointment of physicians to examine relator. On September 20, 1967, the respondent court ordered the relator to be re-examined by two' qualified physicians. By the terms of the order the relator was required to* answer all questions propounded to him by the physicians. Relator filed a motion to strike the words “and to answer all questions put to him by said physicians and each of them” from the order. The motion to strike was overruled. The relator now seeks this Court to mandate the respondent court to sustain the motion to strike.
The language of the statute and the order of the respondent court violates the relator’s right against self-incrimination as guaranteed by the 5th and 14th Amendments to the Constitution of the United States. The majority holds that the statute does not constitute a violation of relator’s privilege against self-incrimination because “the proceedings under the statute are civil in nature rather than criminal although originating in a criminal proceeding.” It is of little significance that the proceedings are civil in nature. A person found to be a sexual psychopath under the Act is deprived of his liberty as a consequence, and must be accorded the protections of due process. Neither sound logic nor fundamental *243justice dictates that the constitutional protectives may be ignored in civil proceedings and must be followed in criminal proceedings. The end result under the Act is incarceration for an indeterminate period of time against one’s will. An individual exposed to a procedure that can result in his incarceration is entitled to his privilege against self-incrimination regardless of the euphemistic characterization of that procedure.
The very title of the Act negates the argument that the proceedings are civil rather than criminal. The determination, if and when made, is that “such person is ... a criminal sexual psychopath.” Acts 1949, ch. 124, § 4, p. 328, as amended, being § 9-3404 Burns’. The Act also provides for appeals “in the manner provided by law for appeals in criminal cases.” Acts 1949, ch. 124, § 6, p. 328, being § 9-3406 Burns’.
Section 3 of the Act, § 9-3403 Burns’, provides:
“When any person is charged with a criminal offense, except the crime of murder or manslaughter, or rape on a female child under the age of twelve . . . and it shall appear that such person is a criminal sexual psychopathic person, then the prosecuting attorney of such county, or someone on behalf of the person charged, may file with the clerk of the court in the same proceeding wherein such person stands charged with . . . such criminal offense, a statement in writing setting forth facts tending to show that such person is a criminal sexual psychopathic person.” (Emphasis supplied)
If the purpose of the statute is to protect society against sexual psychopaths and to provide medical treatment for them, regardless of criminal guilt, the above section is an arbitrary classification of the group to be covered by the statute. It is well known that many murders are committed as a result of a criminal sexual psychopathic mind. Certainly a large number of statutory rapes are committed by persons who are suffering from mental abnormalities. If the statute is to apply to some sexual deviates, it must apply to all.
*244The above section is further defective because of vagueness. The statute is silent as to whom “it shall appear that such person is a criminal sexual psychopathic person.”
The unconstitutionality of the Act has been further pointed out by Judge Emmert in his concurring opinion in State ex rel. Savery v. Marion Criminal Court (1955), 234 Ind. 632, 643, 130 N. E. 2d 128.
“Section 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 makes it perfectly clear the matter is not one of defense *245to 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. 89 Am. Jur., p. 525, _ § 10. 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 to 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 *246clearly be a denial of equal protection of the laws under the Fourteenth Amendment.
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.” 234 Ind. at 646-648, 649.
The Act is unconstitutional for several other reasons. It violates Article I, Sec. 19 of the Constitution of Indiana which guarantees a criminal defendant the right to have a jury determine the law and the facts. The Act also flies in the face of Article I, Sec. 13 of the Indiana Constitution which provides that a criminal defendant has the right to know definitely the charge he is compelled to meet and the right to have a trial by an impartial jury. In Indiana all crimes are statutory, and the defendant’s guilt must be proved beyond a reasonable doubt. Yet under the terms of this Act it is possible, even probable, that the accused can be involuntarily incarcerated for life by commitment to the Indiana Council for Mental Health without ever having committed any crime nor having been convicted of committing any crime.
This Court, here sitting in equity, should grant relator not only the relief prayed for in his petition but the complete relief to which he is entitled, viz: a finding and judgment that the entire Act, Acts 1949, ch. 124 as amended by Acts 1959, ch. 356, is unconstitutional and void. A permanent writ should be granted prohibiting the respondent from enforcing or attempting to enforce any of the provisions of the Act.
*247Hunter, J. concurs.Note. — Reported in 234 N. E. 2d 636.