Firmas v. State
| Decision Date | 23 September 1884 |
| Citation | 61 Wis. 140,20 N.W. 663 |
| Court | Wisconsin Supreme Court |
| Parties | FIRMAS v. STATE. |
OPINION TEXT STARTS HERE
Error to municipal court, Milwaukee county.Adolf Herdegen, for plaintiff in error, Carl Firmas.
H. W. Chynoweth, Asst. Atty. Gen., for defendant in error, the State of Wisconsin.
The plaintiff in error was convicted in the municipal court of Milwaukee county upon an information charging him with willfully and unlawfullyabandoning and deserting his two infant children, and leaving them in a destitute condition. There is no question made by the learned counsel for the plaintiff in error as to the sufficiency of the information, and it undoubtedly charges an offense under the provisions of chapter 200, Laws 1882. The statute reads as follows:
From the final judgment entered in this action the defendant brings a writ of error to this court and assigns as error-- First, that on the whole evidence there was an entire failure to prove the charge in the information; and, second, that the court erred in instructing the jury, and in refusing to give the instructions asked by the defendant at the trial. The learned counsel claims that there was not sufficient evidence to show that the children alleged to have been abandoned were the legitimate children of the defendant. We think that the state was bound to show that the children abandoned were the legitimate children of the accused, and we also think the evidence upon that point was entirely sufficient. The wife testified that she and the accused were married by a minister of the gospel on a certain day and place in the city of Milwaukee, and that at least two of the children were born after the marriage, and were the children of the defendant; and the defendant himself testified that two of the children were his children. In order to justify conviction under this statute we do not think it necessary that the marriage of the party charged with the offense must be proved by a certificate of the person performing the marriage, or by the record of the marriage. The defendant may, on the trial, admit his fathership of the children, as well as his marriage, and such admission will be sufficient proof of the same. As the accused may admit the entire charge against him by a plea of guilty, it would seem absurd to say that he may not, on the trial, admit any fact which it is necessary to prove in order to establish his guilt. We think the evidence was amply sufficient upon this point.
It is claimed by the plaintiff in error that, upon the whole evidence, there is no evidence to establish the fact of abandonment, nor that if he did abondon his children that he left them in destitute circumstances. After careful reading of the evidence we think there is not such a want of...
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