State v. Garner, S

• Decision Date: 02 March 1972
• Docket Number: No. S,S
• Citation: 194 N.W.2d 649,54 Wis.2d 100
• Parties: STATE of Wisconsin, Respondent, v. James GARNER, Appellant. tate 167.
• Court: Wisconsin Supreme Court

Page 649

194 N.W.2d 649

54 Wis.2d 100

STATE of Wisconsin, Respondent, v. James GARNER, Appellant.

No. State 167.

Supreme Court of Wisconsin.

March 2, 1972.

On July 7, 1969, James Garner pleaded guilty in the Milwaukee county court to the charge of failure to support his family (sec. 52.055, Stats.), his sentence was withheld, and he was placed on two-years' probation by Judge Christ T. Seraphim. As a condition of probation he was ordered to pay the court costs, to make restitution of approximately $200, and to get his family off the welfare-relief roll. The following year in October he was brought before the court for the revocation of his probation. ¹ Probation was revoked and he was sentenced to the county jail for 90 days. The circuit court on appeal reversed and remanded the case. At the time of the new hearing, Garner presented a motion for substitution of a judge and an affidavit of prejudice; neither was accepted by Judge Seraphim. After a hearing, probation was again revoked and Garner sentenced to 90 days in the county jail. On appeal, the circuit court affirmed and Garner appeals to this court.

James R. Scott, Stuart E. Schmitz, Milwaukee, for appellant.

Robert W. Warren, Atty. Gen., Robert D. Martinson, Asst. Atty. Gen., Madison, for respondent.

HALLOWS, Chief Justice.

Garner claims he is entitled to a new judge at his second revocation hearing, either by virtue of sec. 971.20, Stats., or because Judge Seraphim should have disqualified himself for actual bias and prejudice. Prior to the adoption of the Criminal Procedure Code, it was necessary to file an affidavit of prejudice in a criminal suit, but by virtue of sec. 971.20, effective July 1, 1970, an accused may disqualify a judge and obtain a substitute judge without alleging prejudice. However, this right is a pretrial right and must be exercised 'before making any motion or before arraignment.' Consequently, Garner has no rights under this statute. ²

Normally, the judge who hears the evidence of guilt should also do the sentencing. For the purpose of continuity, there are exceptions. See sec. 256.08, Stats. See State v. Herfel (1970), 49 Wis.2d 513, 182 N.W.2d 232, construing sec. 974.02, Stats., relating to a successor judge hearing a motion for a new trial. A trial judge may disqualify himself for prejudice during trial or before sentencing and it is quite true that a fair and impartial judge is as crucial at the time of sentencing as at any other stage of trial. James v. State (1964), 24 Wis.2d 467, 473, 129 N.W.2d 227. Here, Garner claims Judge Seraphim was in fact prejudiced because of certain remarks he made at the first revocation hearing and should have sua sponte removed himself. While the statements of the county judge were unnecessary, ostentatious, and do not exhibit ideal behavior on the part of a judge, nevertheless they do not evince bias or prejudice in the sentencing. Every judge who withholds sentence and places a man on probation has a slightly different view of the sentencing after the probation violation. He is entitled to consider the violation and the needs of the convicted defendant at the time of sentencing. There is no claim here that the sentence was excessive for the crime admitted in view of the circumstances. Certainly, the fact that unfavorable evidence has come to the judge's attention in another proceeding does not disqualify him. Judicial knowledge properly acquired is not a sufficient basis for a disqualification; otherwise, a presentence report would likely disqualify most judges. Knowledge is not necessarily prejudice. State v. Carter (1966), 33 Wis.2d 80, 88, 146 N.W.2d 466; State v. Cleveland (1971), 50 Wis.2d 666, 671, 184 N.W.2d 899. The same rule applies to juries. See Thomas v. State (1972), 53 Wis.2d 483, 192 N.W.2d 864.

We do not find prejudice in the fact Judge Seraphim served, in effect, as prosecuting attorney. The record does not show that a representative of the state was present, but whether he was or not, Judge Seraphim called and examined all the state witnesses himself. A trial judge while exercising his limited discretion to call and examine a witness should not function as a partisan, as this could very well mislead the jury. See State v. Nutley (1964), 24 Wis.2d 527, 562, 129 N.W.2d 155. But even where there is no jury, the judge should not take an active role in trying the case for either the state or the defense. The judge who acts as an advocate skates on thin ice in any judicial hearing and runs the risk of turning the adversary system into an inquest wherein the trier of the fact calls and questions the witnesses. However, we find no reversible error on these facts.

Garner claims the court placed an invalid condition on his probation because he was required to take his family off the county welfare roll. Under sec. 973.09, Stats., a court, in placing a convicted defendant on probation, may impose 'any conditions which appear to be reasonable and appropriate.' While courts have recognized constitutional limitations on conditions of probation, ³ a requirement that one supports or makes a good-faith effort to support his family is justified. Here, Garner was convicted of non-support and the condition of his probation was directly related to the crime and his rehabilitation. The condition was reasonable. The American Bar Association in its Standards Relating to Probation provides in standard 3.2 that a condition may appropriately deal with matters such as meeting family responsibilities. ⁴ We agree with this standard on the nature and determination of conditions of probation and adopt it.

Probation conditions, to be effective, must meet the particular needs of the individual case if the theory of individualization of justice is to remain one of the underlying tenets of the probation system. ⁵ In this case we do not find the condition on Gerner to get his family off of welfare relief required performance beyond his ability. There is testimony Garner had not sought employment after being laid off work and was satisfied with unemployment benefits. This testimony is disputed by Garner, but the trier of the fact believed the testimony of the probation officer, which it had a right to do. We accept Garner's theory that in directing him to get his family off of welfare rolls, the court meant he was to support his family. But we are not persuaded Garner supported his family to the extent of his ability. The amount of money he gave his wife was not sufficient and the family continued to remain on the welfare roll. Under sec. 52.055, Stats., the fact a family is receiving public assistance, although not conclusive of a refusal to support, is certainly some evidence of a failure to adequately support one's family.

The last contention of Garner is that the records of the Milwaukee Welfare Department were not properly received in evidence. The welfare department records are public documents and therefore qualified under the Official Records Act (sec. 889.18, Stats.). ⁶ See McCormick, Evidence, (hornbook series) p. 614, sec. 291. While under the official-records exception to the hearsay rule custodianship is important, the person who makes the official entries and the official custodian need not be called to prove the authenticity of the records. Any competent witness may provide the required identification of official records as defined in sec. 889.18. 32 C.J.S. Evidence § 643, p. 839; 30 Am.Jur.2d, Evidence, p. 125, sec. 996. The claim of Garner that there was an insufficient showing of custodianship to qualify the records under sec. 889.25, Stats., the Business Records Act, is without merit because the statute is inapplicable.

Order affirmed.

1 It is to be noted that a hearing involving the revocation of probation is no longer held by the courts in Milwaukee county. By chapter 125, sec. 517, Laws of 1971, effective January 1, 1972, in circuit court, and September 1, 1972, in county court, probationers are now placed in the custody of the Department of Health...