The opinion
Dissenting Opinion
DeBruler, J.
I dissent from the majority opinion’s refusal to decide the question of whether the pandering statute, Acts 1961, ch. 53, § 1, being Burns Ind. Stat. Ann. § 10-4226, is impermissibly vague. The appellant’s contention raises a federal due process question under the Fourteenth Amendment to the United States Constitution, U. S. v. Harriss (1954), 347 U. S. 612 , 74 S. Ct. 808 , 98 L. Ed. 989 ; Bouie v. Columbia (1964), 378 U. S. 347 , 84 S. Ct. 1697 , 12 L. Ed. 2d 894 ; and a State issue under Stanley v. State (1969), 252 Ind. 37 , 245 N. E. 2d 149 ; Guetling v. State (1926), 198 Ind. 718 , 153 N. E. 765 ; Cook v. State (1901), 26 Ind. App. 278 , 59 N. E. 489 .
I believe that even when the issue is raised for the first time on appeal, this Court can and should decide whether a statute is constitutional, as long as its validity does not depend upon factual circumstances requiring the presentation of evidence in the trial court. In Hardin v. State (1970), 254 Ind. 56 , 257 N. E. 2d 671 , this Court said:
“Appellant’s claim that the Uniform Narcotics Act is unconstitutional is based on factual allegations concerning the effects of the use of marijuana and alcohol on the human body, and since no evidence was presented in the trial court on this issue we cannot make a determination of it for the first time on appeal.” 257 N. E. 2d at 674 .
The basis for that decision was that this Court is not a suitable forum for the taking and weighing of evidence. However, determining whether a statute is impermissibly vague does not require the presentation of any evidence, it only requires that this Court determine whether the statute conveys to a person of ordinary intelligence an adequate description of the evil to be prohibited. Stanley v. State, supra; Smith v. State *509 (1917), 186 Ind. 252 , 115 N. E. 943 . This Court is an ideal forum for determining that issue and I believe we should do so in this case.
Note. — Reported in 260 N. E. 2d 876 .