Three issues are raised on this review.
1. Was there sufficient credible evidence to support the conviction?
2. Was the defendant denied his rights to due process of law and a fair and impartial trial ?
3. Was the sentеnce imposed unduly harsh, unreasonable and an abuse of discretion?
Sufficiency of the evidence.
The defendant contends that because the sole witness against him was an alleged accomplice with a prior criminal record that the evidence was insufficient as a matter of law to support a conviction. We find no merit to this contention.
This court has prеviously held that a conviction can be based on the uncorroborated testimony of an ac
*20
complice.
State v. Haugen
(1972),
Similarly, the fact that an individual has been convicted of prior criminal аcts does not make him incompetent to act as a witness. Sec. 885.19, Stats. 1969.
1
These facts merely go to the weight of such evidence.
State v. Haugen, supra; Liphford v. State
(1969),
After reviewing the record, we find that the evidence relied upon by the trier of fact was neither patently nor inherently incredible.
“The credibility of the witnesses is properly the function of the jury or the trier of fact, in this case the trial judge. It is only when the evidence that the trier оf fact has relied upon is inherently or patently incredible that the appellate, court will substitute its judgment for that of the fact finder, who has the great advantage of being рresent at the trial.” Gauthier v. State (1965),28 Wis. 2d 412 , 416,137 N. W. 2d 101 , certiorari denied,383 U. S. 916 , 86 Sup. Ct. 910,15 L. Ed. 2d 671 . See also: Bednarski v. State (1972),53 Wis. 2d 791 , 794,193 N. W. 2d 668 .
We find the evidence sufficient to support the conviction. The evidence adduced, believed and rationally considered by the jury was sufficient to prove the defendant’s guilt beyond a reasonable doubt.
Bautista v. State
(1971),
Question of due process and fair trial.
The defendant contends that he was denied his rights of due process and a fair trial due to a sequence of events which occurred immediately prior to his trial. The defendant and Mrs. Fuller, as was previously stated, were charged as parties to a conspiracy to commit the crimе of forgery-uttering. Both individuals entered pleas of not
*21
guilty and demanded jury trials. Immediately prior to the commencement of trial, Mrs. Fuller waived her right to a trial by jury and changed her рlea to guilty. The trial court then severed the action and proceeded to accept Mrs. Fuller’s plea of guilty pursuant to sec. 971.08, Stats., and our decision in
Ernst v. State
(1969),
Though the defendant had waived his right to a trial by jury prior to the court’s acceptance of Mrs. Fuller’s plea of guilty and was foreclosed from making a timely motion for substitution of judge pursuant to sec. 971.20, Stats., the defendant did not move thе court to disqualify itself on the grounds of prejudice. In
State ex rel. Mitchell v. Bowman
(1972),
It is this sequence of events — the trial court’s accepting the plea of guilty from Mrs. Fuller immediately prior to its acting as trier of fact in defendant’s trial — that the defendant claims violated his rights of due process and a fair and impartial trial. Such cоnstitutional deprivation of rights, it is claimed, resulted from the court’s prior judicial knowledge of the defendant’s actions and its preconceived opinion as to the crеdibility of Mrs. Fuller. We find no merit to these contentions.
This court has in similar cases found constitutionally antiseptic the practice of a judge sitting in several stages of a criminal proceeding. In
State v. Carter
(1966),
*22
In
State v. Knoblock
(1969),
In
Milburn v. State
(1971),
We recognize that cited cases factually were limited to a singular criminal proceeding whereas in the present action there existed two different criminal proceedings after the severance; we think they are nonetheless controlling. The presence of prior attained judicial knowledge is consistent with each. Such prior attained judicial knowledge, we have held, cannot be the basis of disqualification. State v. Carter, supra. To rule to the contrary would contradict the oath each judge takes— to try each case on its merits — and fаil to consider the training and experience of our trial judges in ruling from mind’s evidence, although heard, which is properly excluded from the body of evidence presented.
This court has recently held in
State v. Boutch
(1973),
*23 We conclude that the practice under which the trial court accepted the plea of guilty of Mrs. Fuller as a conspirator under sec. 939.05, Stats., immediately prior to its sitting as the trier of fact in the defendant’s trial to he constitutionally antiseptic. We see no basis upon which to presume that the court acted in direct contravеntion of its oath of office — to judge each case on its merits — and prejudged the defendant.
Propriety of sentence.
The defendant contends that the imposition of the maximum sentence of ten years for uttering by the trial court was excessive and an abuse of discretion.
While this court has stated in
State v. Tuttle
(1963),
A review of the record discloses that the trial court based its sentence on several factors: The defendant’s extensive criminal record, the defendant’s role in the commission of the crime and the court’s appraisal of the defendant’s attitude, including the evidence of his veracity at trial. Each of these factors has been detеrmined by this court to be relevant in determining the sentence for the crime in question.
Lange v. State
(1972),
This court has stated . . that it is impermissible for a trial judge to add to a convicted defendant’s sentence an additional term for the crime of perjury. If perjury has occurred, it should be the subject of a separate charge and conviction.”
Id.
at page 575. However, our review of the record discloses that there is no evidence that the trial judge impоsed an additional term because the defendant may have committed the additional crime of perjury. To the contrary, evidence concerning the defendant’s аttitude, his veracity at trial, his remorse and his acceptance of the court’s findings, was but one factor in determining the length of sentence. In fact, the record indicates thаt the trial court would have imposed the same sentence had the defendant exhibited any degree of veracity at trial because of the defendant’s repeated criminal acts in spite of previous probationary periods afforded and minimal sentences entered against the defendant. In
McCleary v. State
(1971),
“We wish to make it absolutely clear, however, that a trial judge, in an aggravated case and in the exercise of proper discretion, could impose a maximum ten-year sentence in a forgery case and that such discretion would be sustained by this court.”
Clearly the trial court considered this an aggravated case and we think correctly so. Therefore, we conclude that the sentence imposed was not an abuse of discretion and is affirmed.
By the Court. — Order affirmed.