State v. Nix

Decision Date08 December 1975
Docket NumberNo. 56371,56371
Citation327 So.2d 301
PartiesSTATE of Louisiana v. Kirksey McCord NIX et al.
CourtLouisiana Supreme Court

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Wayne Douglas Mancuso, Metairie for defendants-appellants Peter Frank Mule and Kirksey McCord Nix, Jr.

Frederic G. Hayes, Lafayette, for John Fulford.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Thomas S. Halligan, Asst. Attys. Gen., Harry A. Connick, Dist. Atty., for plaintiff-appellee.

BOLIN, Justice.

During the night of April 10--11, 1971, the home of Frank Corso was forcibly entered by three armed men, apparently intent on committing a burglary. Mr. Corso was in the house along with his wife and three of their children. Mrs. Corso discovered the men in the last stages of forcing open the rear door of the residence. She ran down the hall screaming for her husband.

Frank Corso, who had been sleeping, secured a .32 caliber pistol which he kept in the house and confronted the burglars. A gunfight ensued during which Frank Corso was mortally wounded. One of the gunmen was also apparently wounded. The men fled from the residence followed by Mrs. Corso, who had retrieved her husband's weapon and fired at the men. During their flight the intruders abandoned their burglar tools. The one who was apparently wounded was assisted from the house by another of the men.

Following a police investigation, the three defendants herein, along with a fourth man, James Knight, were arrested for the murder of Mr. Corso. All were indicted for murder by the Orleans Parish Grand Jury. Knight, the alleged driver of the getaway vehicle, was severed from the others and granted immunity in order to secure his testimony. The other three defendants, following a change of venue to Lafayette Parish, were tried jointly for murder. All three were found guilty without capital punishment and sentenced to life imprisonment. All three appeal, presenting a total of 140 bills of exceptions to this Court for review. Unless otherwise noted herein, the bills of exceptions apply to all three defendants. La.C.Cr.P. art. 842. 1

BILLS OF EXCEPTIONS NOS. 1, 31, 125 and 130.

Bills Nos. 1 and 31 relate to the refusal of the trial court to continue the arraignment and trial of defendant, Kirksey McCord Nix, Jr., only, because Mr. Nix was allegedly improperly brought before the state courts of Louisiana while in federal custody. Bill No. 125 relates to the refusal of the trial judge, in response to a post-trial motion, to order production of a written agreement between the federal and state governments permitting the trial of the defendant in state court. Bill No. 130 was reserved when the trial court, following the conviction and sentence of the defendants in these proceedings, ordered Mr. Nix returned to federal custody to complete his federal sentence prior to beginning to serve his concurrent state sentence.

It should be noted initially that no extradition of the defendant, Kirksey McCord Nix, Jr., was necessary in this case. The defendant had been brought from the State

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of Texas to the State of Louisiana by federal officials to stand trial in this state on federal charges.

The thrust of the argument of counsel for Mr. Nix is that the presence of the defendant was secured in state court through the issuance of a writ of Habeas corpus ad prosequendum by the district court directed to the United States marshal in whose custody the defendant was confined, rather than through appropriate executive action directed to the United States Attorney General.

Article VII, § 2 of the Louisiana Constitution of 1921 specifically authorized each district court judge throughout the state to issue writs of habeas corpus. 'Habeas corpus' is defined in La.C.Cr.P. art. 351 as a writ commanding a person who has another in his custody to produce him before the court. 'Custody' is defined in the article as 'detention or confinement as a result of or incidental to an instituted or anticipated criminal proceeding.'

La.C.Cr.P. art. 369 provides that there shall be no appeal from a judgment granting or refusing to grant a writ of habeas corpus. This appeal is therefore not the proper forum to collaterally attack the issuance of the writ of Habeas corpus ad prosequendum. The attempts demonstrated by these bills of exceptions to collaterally attack the propriety of the writ of Habeas corpus ad prosequendum were properly rejected by the trial court. Each of the motions of defendant, Nix, to which these bills of exceptions are directed was irrelevant to the proceedings before the court at the time the motion was made. The denial of these motions in no way prejudiced the rights of the defendant to bring a direct action, in either state or federal court, to challenge the jurisdiction of the district court over the person of the defendant.

Such direct attack was in fact brought in federal court and found to be without merit. In re Nix, 465 F.2d 377 (5th Cir. 1972), Cert. denied, 409 U.S. 1112, 93 S.Ct. 924, 34 L.Ed.2d 694 (1973).

These bills are without merit.

BILLS OF EXCEPTIONS NOS. 2 and 3

These bills were reserved by defendants Nix and Mule to the taking of the deposition of a material witness. La.R.S. 15:257 Et seq.

Bill No. 2 was reserved to the denial of defendants' oral motion to dismiss the taking of the deposition. Defense counsel alleged the unconstitutionality of the material witness statutes on numerous grounds. Bill No. 3 was reserved when the court overruled defendants' motion to hold the deposition in chambers rather than in open court.

Both bills were rendered moot by subsequent proceedings. The material witness was present and testified at defendants' trial. The deposition complained of in these bills was not admitted into evidence, nor was it used for impeachment purposes.

Any public prejudice to the defendants which might have resulted from the trial court exercising the discretion granted it by La.R.S. 15:258 to take the deposition in open court rather than in chambers was rendered moot by the subsequent change of venue to the Parish of Lafayette and voir dire examination of prospective jurors in that parish.

BILLS OF EXCEPTIONS NOS. 4 and 27

Prior to trial, the defendants filed a prayer for oyer requesting that the state produce for pre-trial inspection any and all oral and/or written confessions, statements and admissions by any of the defendants or their co-defendant, James Knight.

The state answered that it had no written confessions or other statements, and

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that it was not required to produce any oral confessions or other statements.

The trial court held that the state's answer was sufficient and these duplicate bills were reserved. In its Per curiam to Bill No. 27, the trial court cites State v. Square, 257 La. 743, 244 So.2d 200 (1971) in support of its ruling. Square was the latest expression of opinion by this Court at the time of the trial of the defendants herein.

No oral confession, i.e., the result of custodial interrogation, was introduced in this trial. Two state witnesses, however, related statements made by the defendants to them during and shortly after the crime in question.

This Court has repeatedly held that the state is not required to produce oral inculpatory statements in response to a pre-trial prayer for oyer. State v. Major, 318 So.2d 19 (La.1975); State v. Nelson, 306 So.2d 745 (La.1975); State v. Breston, 304 So.2d 313 (La.1974); State v. Watson, 301 So.2d 653 (La.1974); State v. Sears, 298 So.2d 814 (La.1974); State v. Sears, 298 So.2d 814 (La.1974); State v. Daniels, 262 La. 475, 263 So.2d 859 (1972); State v. Hall, 253 La. 425, 218 So.2d 320 (1969). The trial court correctly applied to this case the law as it existed in 1972.

These bills are without merit.

BILL OF EXCEPTIONS NO. 5

This bill was reserved in connection with the ruling of the trial court on the defendants' motion for a bill of particulars.

The trial court ordered the state to supply the defendant with the following information in connection with the alleged murder of Frank Corso: the address where the crime was committed; the date and time of day when the crime was committed; the method by which the deceased met his death (gunshot wounds); the paragraph of La.R.S. 14:30 under which the prosecution was proceeding (both La.R.S. 14:30(1) and (2)); and the enumerated felonies under La.R.S. 14:30(2) (armed robbery, attempted armed robbery, aggravated burglary, attempted aggravated burglary).

The trial court declined to order the state to reveal: the number and location of the bullet wounds in the body of the deceased; the caliber of the bullets involved; whether any other instrumentality was involved in the death of the deceased and, if so, what kind; whether each defendant allegedly inflicted wounds or whether one or more were being charged as principals and, if so, which were charged only as principals; what part each defendant took in the alleged crime; and the time Mr. Corso received his wounds as opposed to the time he died.

The function of a bill of particulars is to inform the accused concerning matters pertinent to the charge against him which the trial court, in the exercise of its sound discretion, considers necessary in fairness to permit the accused to defend himself. La.C.Cr.P. art. 484; State v. Nelson, 306 So.2d 745 (La.1975); State v. Womack, 283 So.2d 708 (La.1973); State v. Rose, 271 So.2d 863 (La.1973); State v. Bourg, 248 La. 844, 182 So.2d 510 (La.1966), Cert. denied, 385 U.S. 866, 87 S.Ct. 127, 17 L.Ed.2d 93 (1966). It does not require full pre-trial discovery, State v. Brown, 288 So.2d 339 (La.1974); nor is it designed to compel disclosure of the detailed evidence upon which the state will rely to prove its case. State v. Vince, 305 So.2d 916 (La.1974); State v. Rose, supra; State v. Bourg, supra; State v. Brown, supra.

Applying these standards to the rulings of the trial court in this case, as set forth above, we find no abuse of...

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