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06/28/83 STATE MISSOURI v. DAVID WAYNE BALL

June 28, 1983

STATE OF MISSOURI, RESPONDENT,
v.
DAVID WAYNE BALL, APPELLANT.



From the Circuit Court of Lafayette County; Criminal Appeal; Judge William T. Bellamy.

Before Turnage, P.j., Somerville, Kennedy, JJ.

The opinion of the court was delivered by: Turnage

David Ball was found guilty by a jury of culpable negligent manslaughter under § 565.005 RSMo 1978. In accordance with the jury's verdict, the court sentenced Ball to one year in the county jail and a fine of $1,000. On this appeal, Ball contends that the court erred in failing to sustain the defendant's motion to dismiss due to insufficiency of the evidence, in failing to dismiss the information for its insufficient recital of specific factual allegations, in instructing the jury on circumstantial evidence in instruction number 5, in failing to instruct the jury on accidental death, in failing to instruct the jury as to the definition of "reckless," in allowing surplusage in the verdict to stand without correction or striking, in instructing the jury on verdict directing instruction number 7 without including the specific factual allegations against the defendant, and in instructing the jury on aiders and abettors or responsibility for the acts of others in instruction number 6. Affirmed.

In the summer of 1981, David Ball was living with his fiancee Vera Noland and her three children in a trailer home near Odessa, Missouri. On July 15, 1981, Brian Murray, Noland's 16 year old cousin, came to stay with Ball and Noland in their trailer. On that day Ball, Noland, and her children left for the day, leaving Murray alone in the trailer. There was evidence that in the course of the day Murray drank some whiskey.

When Ball, Noland, and her children returned that evening, they noticed nothing unusual about Murray. There was evidence presented that Ball, Noland, and Murray used some drugs later in the evening. At approximately 10:30 p.m., Ball and Murray went into Odessa to buy gas and beer. While buying gas, the two met Jesse Horton, a middle aged hitch-hiker. Horton offered to buy Ball and Murray a couple of six packs of beer if they would agree to give him shelter for the night. Ball accepted Horton's offer, and the three arrived back at the trailer sometime after 11:30 p.m.

Noland and her children went to sleep, while the three men stayed up into the early morning hours and talked, played cards, and drank beer. Murray testified that Ball suggested that the three go outside and fire Ball's shotgun. While Ball stated that they had been shooting at bottles on a logpile and that Murray had hit one of them, Murray claimed that he had not seen any bottles on the logpile. Murray testified that Ball had encouraged him several times in the course of the evening to injure Horton so that they could rob him, and that ultimately he had told him to shoot Horton in the leg or foot. Ball testified that he had never suggested or encouraged Murray to shoot or otherwise injure Horton. At about 3:00 a.m., Murray shot Horton in the chest, killing him instantly. Murray stated that Ball took Horton's billfold off his body, while Ball denied having done so.

After finding that Horton had no pulse, Ball woke Noland and told her what had happened. Because the phone in the trailer was not operational, Murray went to Odessa with the gun to inform the police.

Ball was originally charged with first degree murder under § 565.003 RSMo 1978. A few days before trial, the state amended the information and charged Ball with manslaughter by culpable negligence.

Ball argues that the court erred in failing to sustain his motions to dismiss at the close of the state's evidence and at the close of all the evidence, on the grounds that the evidence was insufficient to establish any culpable negligence. On appeal, all evidence and reasonable inferences in support of the verdict must be accepted as true, and everything else must be disregarded. State v. Turner, 623 S.W.2d 4, 6[1] (Mo. banc 1981).

Murray's testimony was that Ball planned several ways in which Murray could injure Horton so that they could rob him. The first plan was for Murray to strike Horton with his fist. This plan failed when, after Murray struck him, Horton responded by hitting Murray in the throat with a karate chop. The next method Ball suggested was to hit Horton on the head with a hammer. Murray got the hammer and crept up behind Horton while he and Ball were playing cards. However, Murray's nerve failed him and he eventually put the hammer away. The final plan was to shoot Horton in the leg. While they were outside firing the shotgun, Ball took Murray aside and told him to shoot Horton in the leg when Ball said, "shoot the bottle." When Ball spoke those words, Murray testified that he pointed the gun toward Horton, turned his head and closed his eyes, and fired. When he looked to see what had happened, he saw Horton fall to the ground.

"Culpable negligence 'means disregard of the consequences which may ensue from the act, and indifference to the rights of others . . .'" State v. Manning, 612 S.W.2d 823, 826[2-4] (Mo. App. 1981), quoting State v. Kays, 492 S.W.2d 752, 760 (Mo. 1973).

There was ample evidence from which the jury could have found, as they did, that Ball planned, promoted, and aided in the shooting of Horton. There is no doubt that the actions of Ball amounted to culpable negligence because they were clearly in disregard of the consequences which might ensue from Murray's attempt to shoot Horton in the leg. While Ball did not tell Murray to kill Horton, he aided and promoted Murray in firing the gun at Horton in reckless disregard for Horton's life. This is one aspect of culpability. Manning, 612 S.W.2d at 826.

Ball's contention is that Murray's testimony was unworthy of belief. This is a jury question which was resolved against Ball. Thus, the trial court properly denied the motions to dismiss.

Ball's next argument is that the trial court erred in failing to dismiss the information for its insufficient factual allegations. Rule 23.01(b)(2) states that "he indictment or information shall . . . tate plainly, concisely, and definitely the essential facts constituting the offense charged." After setting forth the charge ...


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