Vanderpoel v. State, 46416

• Decision Date: 18 June 1971
• Docket Number: No. 46416,46416
• Citation: 251 So.2d 922
• Parties: Robert Lee VANDERPOEL v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 922

251 So.2d 922

Robert Lee VANDERPOEL v. STATE of Mississippi.

No. 46416.

Supreme Court of Mississippi.

June 18, 1971.

Rehearing Denied Sept. 14, 1971.

Milton R. Fairchild, Gulfport, for appellant.

A. F. Summer, Atty. Gen., by Velia Ann Mayer, Sp. Asst. Atty. Gen., Jackson, for appellee.

BRADY, Justice.

This is an appeal from the Circuit Court of Jackson County, Mississippi, wherein the appellant, Robert Lee Vanderpoel, was convicted of the crime of false pretenses and sentenced to serve a term of three years in the Mississippi State Penitentiary. From that judgment this appeal is taken.

The appellant, an airman, had been stationed at Fallon, Nevada, but was on temporary duty at the computer school at Keesler Air Force Base in Biloxi, Mississippi. The indictment against the appellant provides as follows:

(T)hat Robert Lee Vanderpool (sic) * * * on the 10th day of August * * * 1968 * * * did unlawfully, wilfully, feloniously, falsely and fraudulently aid and assist one William Thomas Smith in representing the said William Thomas Smith to an agent of Durbin's TV center, Ocean Springs, Mississippi, as one Lt. James L. Dean, and did wilfully, unlawfully, feloniously, falsly (sic) and fraudulently obtain one hutch type television set and one green Imperial 90 model dishwasher, a better description being to your Grand Jurors unknown, of the total and aggregate value of $1,564.95, of the property of James Durbin d/b/a Durbin's TV Center, well knowing that the said William Thomas Smith was not, in fact, the said Lt. James L. Dean, and thereafter did unlawfully, wilfully, feloniously, falsely, and fraudulently aid and assist the said William Thomas Smith in making, issuing and delivering unto an agent of Durbin's TV Center a check in the amount of $1,564.95 well knowing the same to be insufficient, all with the felonious intent of him, the said Robert Lee Vanderpool (sic), to wilfully, unlawfully, feloniously, falsely and fraudulently cheat and defraud the said James H. Durbin d/b/a Durbin's T.V. Center, of the sum of $1,564.95.

At the outset, it has long been a rule of law in this state, as reflected by our decisions, that the uncorroborated testimony of an accomplice must be viewed with great caution and suspicion. The accomplice, William Thomas Smith, over a year ago, pled guilty to a similar indictment but has never been sentenced and is the state's chief prosecuting witness in this trial. It is largely upon the testimony of this witness that the proof of the state rests.

The salient facts in this case, as reflected by the record, necessary for resolving the issues are as follows: William Thomas Smith testified that on or about August 9, 1968, the appellant, a male, thirty-six years old and a computer specialist, went into the TV and appliance store operated by Mrs. James H. Durbin. We will endeavor to show that the testimony of Accomplice William Thomas Smith, hereinafter called Accomplice Smith, is corroborated in part by the testimony of the appellant. Accomplice Smith testified that he, Frank Ellsworth, Kyler Davis and the appellant conspired together to get from Durbin's TV Center a very expensive TV hutch and dishwasher. It was understood between them that Accomplice Smith would pretend to be a First Lieutenant in the United States Air Force named James Dean. It was agreed further that an account would be opened at the People's Bank of Biloxi, and the record reflects that this was done, Accomplice Smith testifying that appellant furnished him with $20 and a social security number so that the account could be created. Accomplice Smith further testified that it was agreed that he would rent and obtain an apartment in a good neighborhood, which was later designated as the place to which the TV hutch and dishwasher were to be delivered. The record does not disclose that there is a First Lieutenant James L. Dean in the United States Air Force at Biloxi, Mississippi.

Appellant admits that on August 9, 1968, he went into the TV and appliance store operated by Mrs. Durbin. He alleges that he went there for the purpose of procuring a portable TV for himself. He admits talking to Mrs. James H. Durbin, who apparently at the time did not know Accomplice William Thomas Smith who was not in the store at that time. Appellant further admits that he was introduced to William Thomas Smith in Allen's TV shop on August 8, 1968. It appears that this was a day or so before the TV was actually purchased.

Accomplice Smith testified that he took his father's captain's bars which his father had earned in World War II, and that Frank Ellsworth cut them down in size so that they would appear to be lieutenant's bars; that Ellsworth and the appellant had furnished him with an Air Force enlisted man's cap and an Air Force belt and buckle to go with the captain's bars.

Appellant Vanderpoel admitted that after he had been in Mrs. Durbin's tV, store and after she had shown him the televisions which she had for sale he stated to her, just 'as she stated earlier-I did state that I had a lieutenant friend that was looking for one of them, who I did. And I stated this friend's name. She said she didn't recall that. And I'm sure I stated his name as James Kelly.'

Mrs. James H. Durbin corroborates this conversation of the appellant because she testified as follows:

He came in, he looked around at some portable televisions. I stood with him up close to the front door of the store. Toward the middle, rear, of the store we had a hutch, which is the largest thing that RCA builds of color television, radio, stereo combination, and he looked over at it, and he said, 'Oh, I see you have one of those Hutches.' I said, yes, I do. And he said, 'I have a friend that's been looking all over for one of those.' He said, 'In fact, he tried to get one at Byrd's,' which is another television place, in Biloxi,-'to special order one for him, and they didn't have one.' He says, 'If I see him tonight, I'll tell him that you have one, so he can come in and get it.' He said, 'He's just recently married, he's just a little young punk. He's a 2d lieutenant out at the Base. I don't know what he's doing in the Service, anyway, because his father is a millionaire, but,' he says, 'if I see him tonight, I'll send him in.'

As aforesaid, the appellant admitted that he had a lieutenant friend who was looking for a hutch television and, although appellant contends he said the friend's name was James Kelly, Mrs. Durbin emphatically states that he said his friend was Second Lieutenant James Dean. Thus, the entire structure or basis for the scheme of obtaining the TV hutch and dishwasher was put in motion by the appellant according to the testimony of Mrs. Durbin and Accomplice Smith, which was corroborated to some extent by the appellant himself.

Accomplice Smith testified that on August 10, following the conversation which appellant had with Mrs. Durbin, he went to Durbin's TV, store, dressed in a first lieutenant's uniform. He selected and approved the hutch and the dishwasher and he made a $10 down payment thereon. He stated that he had to go to New Orleans that afternoon to get his wife but that upon his return he was very anxious to have the TV sent to his apartment, which he had rented in accordance with the plot. Before Durbin's TV store had closed, Accomplice Smith telephoned and begged Mrs. Durbin to send the TV hutch and dishwasher to his apartment, which she did. Accomplice Smith admits that he made out a check payable to Durbin's TV Center in the sum of $1,564.95 drawn on the People's Bank of Biloxi, where the $20 deposit had been made. This check was signed by James L. Dean. A receipt showing the $10 cash payment and payment in full was obtained, according to Accomplice Smith's testimony, but the record fails to reflect that the receipt was offered in evidence. These transactions took place on the night of August 10.

The record reflects that Appellant Vanderpoel was a close personal friend of Mr. Ellsworth; that he had gone into Mrs. Durbin's store another time with Mr. Ellsworth, as reflected by this question and answer:

Q Now, were you there just before this alleged check cashing scheme went on to buy the stuff?

A Unfortunately, yes. I went back over with another guy, Frank Ellsworth and myself, and he was looking for some stuff.

The record further reflects that upon appellant's return to Biloxi, after the charges had been made against him, he spent the night with Ellsworth, which also evidences the close friendship which existed between them. The record discloses that after Accomplice Smith had obtained the TV hutch and dishwasher which were delivered to his apartment he went to the apartment of Appellant Vanderpoel and there he picked up the trailer at Vanderpoel's Forest Park Apartment for the express purpose of loading the TV hutch and dishwasher in it and delivering it to Appellant Vanderpoel.

In passing, it is strange indeed that although Appellant Vanderpoel had seen this hutch at least once or possibly twice before, he was unable to tell if the TV hutch which was delivered to him was the same one which he had seen and talked to Mrs. Durbin about, as reflected in the following statement:

Q Now, when you received this hutch and sink from this Lieutenant, James Dean, did you recognize it as being the same one you looked at at Durbin's?

A There was no way I could tell. It was laid face down and all I could see was a bunch of crating.

It is also strange that a man would buy an expensive TV hutch without being certain that it was a fine TV hutch such as the one which he had seen in Durbin's TV Center.

The record discloses that he bought this merchandise from William Thomas Smith, who admits that he posed as James L. Dean. The record discloses that he charges he bought it on August 11 although there is conflict as to whether he bouth it on the night of August 10, the record not being clear in this regard, but he admitted that he had...