State v. Ehlenfeldt, 77-306-CR

• Decision Date: 04 March 1980
• Docket Number: No. 77-306-CR,77-306-CR
• Citation: 94 Wis.2d 347,288 N.W.2d 786
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. George EHLENFELDT, Defendant-Appellant.
• Court: Wisconsin Supreme Court

Page 786

288 N.W.2d 786

94 Wis.2d 347

STATE of Wisconsin, Plaintiff-Respondent, v. George EHLENFELDT, Defendant-Appellant.

No. 77-306-CR.

Supreme Court of Wisconsin.

Submitted on Briefs Jan. 9, 1980.

Decided March 4, 1980.

Frank C. Lisheron, Jr., and Lisheron Law Offices, Princeton, for defendant-appellant.

Bronson C. La Follette, Atty. Gen., and Betty R. Brown, Asst. Atty. Gen., for plaintiff-respondent.

BEILFUSS, Chief Justice.

The defendant George Ehlenfeldt appeals his conviction on two counts of aiding and abetting the violation of sec. 95.28(1), Stats., which prohibits the dismemberment or storage of meat from a diseased animal at premises where other food is sold or prepared for sale. Ehlenfeldt was tried by a jury on an information containing three counts of the offense; guilty verdicts were returned as to two. Judgment was entered on the verdict and fines of $2,000 and $1,000, respectively, were imposed for the separate violations. ¹

The charges originally grew out of a John Doe investigation into Dan's Country Boy Market, a retail grocery store, meat market and slaughter plant located in Green Lake County. Ehlenfeldt was found to have intentionally delivered two diseased bovine animals for dismemberment and storage to Dan's Country Boy Market on a Friday in either February or March of 1976, and to have intentionally delivered another diseased bovine animal for dismemberment and storage on October 16, 1976.

The evidence presented at trial revealed that Ehlenfeldt was a licensed livestock dealer of some thirty years' experience who regularly did business with Dan's Country Boy Market. On one particular Friday in either February or March of 1976 he purchased eleven or twelve cows at Midwest Livestock Producers, an auction market in Lomira, Wisconsin. He instructed John Long, who was employed as a truck driver and handyman at his farm stockyards, to load the animals onto his truck and deliver all but two of them to his farm. The two remaining cows were to be taken to Dan's Country Boy Market for slaughter and processing.

Long testified that the two cows Ehlenfeldt had instructed him to deliver to Country Boy were skinny and that it took awhile to load them because they were slow. After loading the animals onto the truck, he left Lomira at about 6 p. m. and arrived at Ehlenfeldt's stockyards at about 7:45 p. m. When he arrived at the stockyards, he noticed that the two cows slated for slaughter were down and could not get up. He prodded the animals with a "hot rod," I. e., an electrical device which shocks an animal but they remained down. Despite their condition, however, Long delivered these two cows to Country Boy immediately after he finished unloading the other animals. He testified he did so because Ehlenfeldt had ordered him to take them there no matter what their shape was.

Dale Keach, an employee of Country Boy, testified that at about 7:30 p. m. on a Friday in either February or March of 1976 he received a telephone call at work from Danny Weinberger, the proprietor of Dan's Country Boy Market. Weinberger told him to get ready because two beef were coming in from Ehlenfeldt's stockyards. Keach stated that he and Larry Fitzgerald, another employee of Country Boy were instructed to go back and slaughter the animals when they arrived.

At about 8 p. m., Keach testified, John Long pulled into the back of the market with the two cows. The animals were down and breathing heavily. Despite their again being prodded with a "hot rod," they were still unable to move. Keach and Long then placed a chain around each animal's neck and, using the hoist from the slaughterhouse, dragged them out of the truck and into the building. After the animals were unloaded, Long left and Keach and Fitzgerald went to work slaughtering them.

Keach testified that when he got the animals into the building their breathing was still very heavy, and when he shot and struck them, their reaction was unlike that of other animals he had slaughtered. He stated that a normal animal reacted by kicking violently and that its blood flowed freely. These animals, however, moved very little and their blood was very coagulated. Keach also testified that upon skinning the animals out he noticed that their odor was unlike that of other animals he had butchered and their meat showed signs of possible infection.

After they were skinned out, the animals were then quartered, washed and hung up. They were marked "George Ehlenfeldt not for sale," and placed in the cooler.

Keach testified that the next morning he told Weinberger about the bad condition of the cows they had received from Ehlenfeldt but that Weinberger simply turned and walked away without saying anything.

The following week the meat was boned out and placed in tubs marked "George Ehlenfeldt not for sale." It was subsequently weighed out, pork was added, and it was put through the grinder twice. Keach testified that this meat was later ground a third time, stuffed into sausage and then sold over the counter as "Country Boy Summer Sausage retail."

When asked why he had done this with the two apparently sick animals, Keach responded that this was the general procedure for all of these animals that come in from Ehlenfeldt's stockyards and that he had been instructed to do so by Mr. Weinberger. The defendant George Ehlenfeldt never received any of the meat from these two animals.

On October 15, 1976, Ehlenfeldt bought another animal this time a black steer at Midwest Livestock Producers. Long testified that this animal was also sick when he loaded it onto the truck and transported it to Ehlenfeldt's farm. He stated that Ehlenfeldt instructed him to give the animal 20 cc's of penicillin when he got it home.

The next morning when he saw the animal, Long testified, the steer was laying in the yard and couldn't get up. He then called a veterinarian, Dr. Allen Lippart.

Dr. Lippart examined the animal around noon on October 16, 1976. He testified that when he arrived the animal was "rather alert, looking around." He and Long tried to get it up but were unsuccessful. The steer's temperature was higher than normal, and Dr. Lippart noted that it was bleeding in the rectal area, its heart rate was a little fast and its bladder contained about a gallon of urine. He made no specific diagnosis at that time but gave the animal several antibiotics and 500 cc's of dextrose. Dr. Lippart stated that his prognosis for the animal was "poor to guarded."

The steer was still down when Long left at about 5 p. m. Long testified that Ehlenfeldt told him he would be out in the yard that evening at 6 p. m., and that he should return then. When Long returned the steer was still down and Ehlenfeldt and Larry Fitzgerald from Country Boy were in the yard. Ehlenfeldt was carrying a butcher knife. Long was instructed to go get a tractor, and when he returned the steer's throat had been cut. The animal was then loaded onto Country Boy's truck and hauled away by Fitzgerald.

According to Fitzgerald's testimony, he took the carcass to Dan's Country Boy Market where he butchered it and placed it in the cooler marked "Not inspected not for sale George Ehlenfeldt." He testified that he did not know whether or not Ehlenfeldt ever received this meat or what happened to it.

Ehlenfeldt testified on his own behalf denying that he had intentionally delivered or caused to be delivered to Dan's Country Boy Market for dismemberment and storage any diseased animals. With respect to the two animals delivered in February or March of 1976, he stated that Weinberger had informed him that he needed boning canners and for this reason he purchased the two additional cows from Midwest. He stated that the animals were standing when he bought them and that after that time he neither saw nor heard anything about them again.

Regarding the black steer, Ehlenfeldt testified that he believed the animal's back had been broken when it was placed in a pen with several bulls. He denied that he had instructed Long to administer penicillin to the animal after he had purchased it at the auction market. He admitted that Dr. Lippart was called to examine the steer, but stated that he was never informed of the doctor's opinion as to the animal's condition or that drugs had been administered to it. Ehlenfeldt further testified that the steer was finally slaughtered for his own use and that, when he discovered that it had been injected with drugs, he fed the meat to his dogs.

On appeal Ehlenfeldt raises two primary issues:

(1) Is sec. 95.28(1), Stats., unconstitutionally vague?

(2) Are the jury's verdicts sufficiently supported by the evidence?

Sec. 95.28(1), Stats., reads as follows:

"95.28 Meat from dead or diseased animals. (1) No meat from any diseased animal, or any animal that has died other than by slaughter, shall be sold or used for human consumption, or dismembered or stored at premises where other food is sold or prepared for sale."

Ehlenfeldt contends that this section is unconstitutionally vague because it fails to give reasonable notice of the conduct it proscribes. He claims that the failure of the legislature to define the phrase "diseased animal" as it is used in the statute renders it so obscure that a person of ordinary intelligence must necessarily guess as to its applicability.

The constitutional foundation of the vagueness challenge to a penal statute is the procedural due process requirement of fair notice. Butala v. State, 71 Wis.2d 569, 573, 239 N.W.2d 32 (1976). A statute must at least be sufficiently definite to permit one inclined to obey it, even if for no other reason than to avoid its penalties, to reasonably understand what conduct is prohibited and what is allowed. It should also be sufficiently definite to allow a judge or jury to objectively apply its terms to the conduct of a defendant in order to determine his guilt or innocence without having to create or apply standards of their own....