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Black v. State3/12/2001
the back of Lewis' head, spine, chest, side, buttock, leg and arm. After loading Pogue into the Blazer, Lewis raced him back to the Pogue barn, where family members took over and rushed both men to the Healdton hospital. Lewis was treated for his injuries and was later transferred to Ardmore for care. Pogue died at the Healdton hospital.
The morning after the fight Appellant fled to Texas, where he was later apprehended and voluntarily confessed. Jesse and Jimmy Black, Robert Seale and Cal Shankles were also arrested and made voluntary statements. In Appellant's voluntary statement to police, he claimed he did not go with Shankles to fight, but to see "what the deal was." He claimed he never intended to kill Pogue and he did not understand why Lewis and Pogue attacked his brothers. He maintained he did not remember stabbing Lewis and that he simply reacted because he was afraid for his brothers, Jesse and Jimmy. He claimed when he went to Jimmy's aid, he told Pogue to get off his brother or he would "stab" or "cut" him. When Pogue did not move, he stabbed him. According to Appellant, he and Pogue began to wrestle and roll around and Pogue kept rolling onto the knife. He maintained there was no intent to kill anyone and that his brothers did not know he used his knife. Other facts will be discussed as they become relevant to the propositions of error raised for review.
PRE-TRIAL ISSUES
In his twelfth proposition of error, Appellant claims he was denied due process of law when he was convicted of a greater offense than for which he was bound over at preliminary hearing. He maintains he was bound over on a charge of assault and battery with a dangerous weapon, but tried and convicted of the greater crime of assault and battery with a deadly weapon. Appellant never objected on these grounds.
The record shows Appellant was originally charged with assault and battery with a deadly weapon. At the beginning of preliminary hearing, the magistrate announced that each defendant was charged with first degree murder and assault and battery with a deadly weapon, which was confirmed by the District Attorney. At the conclusion of the preliminary hearing, the magistrate reviewed the evidence and ruled:
Upon those findings, the Court is compelled to bind over each of these Defendants and everyone of these Defendants in relation to each of the two charges that are charged against each of these Defendants. (P.Hrg. 832)
Thereafter, the District Attorney clarified the magistrate's ruling and reminded the magistrate that as to Appellant the "bind over should reflect as to the assault and battery with a deadly weapon that he also be bound over with one prior Felony conviction." The magistrate ruled accordingly. That same day, the magistrate entered a written order entitled "Transcript of Examining Magistrate" in which he listed the crime charged as well as the crime for which the defendants were bound over as assault and battery with a dangerous weapon. Given the record of preliminary hearing and the fact the crime was misstated in both places on the written order, we find that the written order contains a scrivenor's error and that the record shows Appellant was bound over on a charge of assault and battery with a deadly weapon. As such Appellant was not denied due process and was tried on the appropriate charge for which he was bound over. Accordingly, no relief is required.
In his sixteenth proposition of error, Appellant claims his right to have an impartial magistrate preside at his preliminary hearing was denied. Prior to the hearing, Appellant unsuccessfully moved to disqualify the magistrate on grounds he had issued the search warra
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