Callen v. State

Per Curiam. Appellant, convicted by a jury of the felony murder of a pedestrian on a city street, argues that the evidence was insufficient to show his participation in the attack and robbery which led to the death of the pedestrian and that the trial judge erred to his prejudice when he withdrew from the consideration of the jury the assault and larceny counts of the robbery indictment. An eyewitness, a neighbor of the victim, testified that two Negro men of the approximate age of the appellant, a Negro, robbed the man, each holding an arm with one hand and rifling pockets with the other. Appellant gave a statement in which he admitted that he was at the scene when the other man (who was convicted in a separate trial) robbed the pedestrian, that he fled with the robber and shared in the fruits of the robbery but denied that he physically participated in the attack.

There was sufficient evidence to permit the jury to find that appellant had been one of the two men who committed the robbery. Appellant concedes that the State could abandon any of the counts on which he was being tried, at any time before the case went to the jury, but contends that here the State did not abandon either the assault or the larceny count but rather that the trial judge did so of his own initiative, and claims that this judicial action