State v. Freiberg
| Decision Date | 06 June 1967 |
| Parties | STATE of Wisconsin, Respondent, v. Albert E. FREIBERG, Appellant. |
| Court | Wisconsin Supreme Court |
Dennis J. Purtell, Milwaukee, for appellant.
Bronson C. La Follette, Atty. Gen., Madison, Hugh R. O'Connell, Dist. Atty., Robert E. Sutton, Asst. Dist. Atty., Milwaukee County, Milwaukee, for respondent.
Was there sufficient evidence to establish the wilfulness of
defendant's failure to support?
The burden of proof in a nonsupport case is the same as in any criminal matter--proof of guilt beyond a reasonable doubt. This court recently said in Gauthier v. State (1965), 28 Wis.2d 412, 415, 137 N.W.2d 101, 103, that:
'The burden of proof upon the state is the same whether the case is tried before a jury or before a court. That burden is to prove the defendant guilty beyond a reasonable doubt. The test applied upon appeal to this court is whether the 'evidence adduced, believed and rationally considered by the jury was sufficient to prove the defendant's guilt beyond a reasonable doubt."
A portion of the proof required in a nonsupport case is supplied by a statutory presumption. Sec. 52.05(6), Stats., 1 makes proof of the desertion prima facie evidence of wilfulness. Hence, if all the other elements of the crime have been proved, wilfulness is established beyond a reasonable doubt by the statutory presumption.
The defendant concedes the and, for the purpose of the appeal, 'admits that his failure to support his children constitutes * * * prima facie case of abandonment.' He contends, however, that the presumption is rebuttable and, no doubt, it is. His contention by way of rebuttal is that he is a chronic alcoholic and that this condition is an illness or a disease that prevented him from keeping any employment and from supporting his family.
We do not disagree with the appellant's premise. If sufficient facts were established to show that the defendant was an alcoholic in a medical sense, and that such alcoholism prevented the defendant from working, we would conclude that the defendant lacked the physical capacity to work. As we have said in Zitlow v. State (1934), 213 Wis. 493, 496, 252 N.W. 358, 359:
'* * * the defendant must not only have had the capacity to work, but must have willfully and without just cause neglected and refused to adopt this means of supporting his family.'
However, defendant falls far short of the proof required to outweigh the prima facie evidence of wilfulness that the statute imputes from the fact of desertion. There was evidence that the defendant was a heavy drinker and that he had been for years. While his former wife referred to him as an 'alcoholic,' it is apparent that by this she meant that he was frequently under the influence of liquor. This, however, is not the accepted medical definition of alcoholism, 2 although it may be descriptive of one of the usual symptoms. As the defendant's attorney correctly points out, it is generally now believed by the medical profession that alcoholism is a disease. This, however, is a matter of expert medical opinion that should be proved by a physician and not by a layman. Were proper medical proof submitted showing that because of the excessive and prolonged use of intoxicating liquor the defendant was an alcoholic and that condition deprived him of the capacity to work, we could not then permit a court or jury to rely upon the statutory language making the desertion prima facie evidence of intent without considering the rebutting evidence. Under the facts of this case, however, we conclude that the trial judge correctly summarized the evidence when he stated:
'The Court feels that under the facts and circumstances of this case this proposition that you ask the Court to accept is not applicable * * *. This is a man who has the physical ability to work. Certainly the Court takes judicial notice of the fact that many employers in this community would welcome this man being employed by them, if he is able to stay sober. The fact that he would rather spend his time drinking than accepting his responsibilities to his
family and to his community, to this Court it is not a
defense.' Was the evidence sufficient to support the verdict
finding that defendant's failure to support his family left
them in 'destitute or necessitous circumstances.'?
The essence of the defendant's...
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State v. Cissell
...others." of living to which the wife was entitled given her husband's resources: The court relied on Brandel in State v. Freiberg, 35 Wis.2d 480, 486, 151 N.W.2d 1 (1967), where we held that the state need not show the father's default brought about his family's immediate descent to the "lo......
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State v. Jorgensen
... ... ¶ 31 This commentary was improper. First, it is inappropriate for an attorney to allude to a matter not supported by admissible evidence. See SCR 20:3.4(e); State v. Freiberg, 35 Wis.2d 480, 484, 151 N.W.2d 1 (1967) (stating that alcoholism is a disease that should be proven by expert medical opinion). Second, it is improper for a prosecutor to provide the jury with information, which allows the jury to consider facts not in evidence when determining guilt. See State ... ...
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Thoreson v. Milwaukee & Suburban Transport Co., 109
... ... Schade (1957), 274 Wis. 519, 80 N.W.2d 416, or because others have assumed that responsibility for him. State v. Freiberg (1967), 35 Wis.2d 480, 151 N.W.2d 1. However, the mother has the obligation to support her child when the father has failed in whole or ... ...
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Roberts v. State
... ... Roberts also relies on State v. Freiberg (1967), 35 Wis.2d 480, 151 N.W.2d 1, as creating a distinct and separate defense of chronic alcoholism. We think not. Freiberg's language must be taken in context of an abandonment in violation of sec. 52.05, Stats. This crime requires a desertion or a wilful failure to support without just ... ...