Opinion
No. 67-862.
June 18, 1968. Rehearing Denied July 24, 1968.
Appeal from the Criminal Court of Record for Dade County, Paul Baker, J.
Harry W. Prebish, Richard M. Gale, Miami, for appellant.
Earl Faircloth, Atty. Gen., and Jesse J. McCrary, Jr., Asst. Atty. Gen., for appellee.
Before CHARLES CARROLL, C.J., and BARKDULL and SWANN, JJ.
After a non-jury trial, the appellant was found guilty of entering without breaking into a building with the intent to commit a felony therein, to-wit, aggravated assault. He appeals and contends that the evidence was insufficient to sustain the trial court's finding of guilt. The evidence is conflicting but it is a fundamental principle that an appellate court does not sit as the trier of fact. Williams v. Smelt, Fla. 1955, 83 So.2d 1. Where there are conflicts in the evidence in a non-jury trial, it is within the province of the trial judge to reject any testimony he finds to be untrue and to accept and rely upon that which he finds to be worthy of belief. Eizenman v. State, Fla.App. 1961, 132 So.2d 763.
There is an additional reason to affirm this case. There were submitted into evidence in the trial below two photographs of some of the people involved in this matter. An essential issue determined by the trial judge may have been whether the parties were forced at gun point to pose for the photographs; or whether they freely and voluntarily consented to the photographs. The appellant has not brought these photographs up in the record on appeal. Generally, the sufficiency of the evidence to sustain a verdict cannot be considered on appeal where the exhibits introduced are not made a part of the record. Steele v. State, 85 Fla. 57, 95 So. 299 (1923); Belfield v. Lochner, Fla.App. 1964, 162 So.2d 668. It is axiomatic that an Appellate Court will not reverse a finding of fact by the lower court unless the error is patent on the record. Mixon v. State, Fla. 1951, 54 So.2d 190. For the above and foregoing reasons the verdict herein appealed be and the same is hereby
Affirmed.