BEFORE ROY NOBLE LEE, ROBERTSON and ANDERSON:
ROY NOBLE LEE, CHIEF JUSTICE, FOR THE COURT:
James Donald Watson was indicted, tried and convicted in the Circuit Court of DeSoto County for conspiracy under Mississippi Code Annotated 97-1-1 (d) (Supp. 1985). The lower court, Honorable George C. Carlson, Jr., presiding, sentenced Watson to serve five (5) years in the custody of the Mississippi Department of Corrections, and to pay restitution in the amount of forty-nine thousand eight hundred forty dollars ($49,840), together with a fine of five thousand dollars ($5,000). He has appealed to this Court and assigns eight (8) errors in the trial below.
For some time prior to 1983, appellant had been operating a so-called magazine business, which, to say the least, was shady and spurious. In early 1983, appellant was experiencing financial difficulty as a result of having his operations in the State of Tennessee enjoined, and being unable to open a merchant account with any local or other banks who knew him. He sought a" billing agent, "specifically, a local merchant through whose bank account he could process the credit card charge slips he acquired in his magazine subscription business.
Appellant was introduced to Howard C. Rouse through mutual acquaintances, Bill Amos and Ken Herman. Appellant and Rouse met during the first week of March, 1983, and discussed the magazine subscription business. Watson explained to Rouse that he ran a" boiler room "magazine solicitation business, which received numerous credit card charges, and he explained the necessity of appellant's having access to someone else's merchant account in order to collect the money from those credit card charges. Appellant and Rouse agreed that Rouse would keep the first five thousand dollars ($5,000) in credit card deposits in his bank account as security. Thereafter, Rouse was to receive twenty percent (20%) of all Watson's
credit card deposits processed through his account. Thus the plan and agreement were made, which were soon to develop into the conspiracy, resulting in appellant's conviction.
On March 9, 1983, appellant's first deposit was made into the Rouse account of" Elvis, Elvis, Elvis "in the First National Bank of Hernando, Mississippi. After rapidly acquiring the $5,000 in security, a routine involving appellant's credit card slips was orchestrated between appellant and Rouse. Bill Pitts, a maintenance and odd-job man working for appellant, daily would pick up a sealed envelope containing credit card slips. Pitts would deliver these envelopes to the Elvis, Elvis, Elvis establishment where he received a receipt and a check, payable to himself, from either Rouse or Sara Baney, the manager of Elvis, Elvis, Elvis. On each check payable to Pitts, either Rouse or Sara Baney made a notation that the check was for" videotapes, "even though Rouse never purchased any videotapes from Pitts. The checks received from Rouse were carried by PittS to Rouse's bank, the First National Bank of Hernando, where he cashed them and then delivered the cash to appellant. This procedure continued for approximately twenty-four (24) days from March 9 through April 1, 1983.
The credit card slips which appellant transmitted to Rouse for deposit and collection through the Rouse account of ElVis, Elvis, ElViS were treated and honored by the bank as check deposits and were forwarded by the bank through the regular channels for collection. As a result of the marked increase in credit card activity in Rouse's account after March 9, officials from the First National Bank of Hernando visited Elvis, Elvis, Elvis and discussed the situation with Rouse, who explained that his sales were high due to a new Elvis Presley video that he was marketing. Rouse never mentioned his association with appellant or the magazine solicitations.
In early April, 1983, the First National Bank of Hernando froze the Elvis, Elvis, ElVis account. Bank statements produced at trial revealed that approximately seventy thousand dollars ($70,000) in" charge backs "were assessed against Rouse's account during the period from March 9 through April, 1 of 1983. *fn1 Following the bank's action, appellant met with bank officials and explained that he had been involved with Watson in a magazine subscription venture.
The record reflects that Rouse's deposits, which ordinarily were five hundred ($500.00) to one thousand dollars ($1,000.00), increased to seven ($7,000) and eight thousand
dollars ($8,000); that appellant would obtain credit card account numbers from various people and would double and triple the billing and falsify the billing; that one magazine solicitation venture was registered in the name of Deborah Jean Wilder, a long-time employee of appellant's magazine solicitation business; and that there were eight (8) or nine (9) arrangements similar to the one with Rouse through which appellant deposited the credit card charge slips from his magazine solicitations. The following excerpt from the testimony of Deborah Jean Wilder describes one facet of the operation:
Q. And what would happen if you called Master Card or Visa for an authorization code and found out that the card holder's card had expired, the expiration date had passed?
A. We would move it up a year and a month, a month and a year ahead of whatever the expiration date was, and call back again to get a code, and usually we'd get one.
Q. So, if the card had a February '83 expiration date -
A. We'd go to March of '84, and we'd call back.
Q. - and you called in and you would be rejected on that, then you would call back later and add a year and a month to it?
Q. Which was a bogus expiration date?
Q. And who told you to do that?
Q. Now, you also mentioned that when you would call Master Card or Visa for an authorization code and when you were rejected, you would just make up a code?
Q. Just a bogus authorization code?
Q. And who told you to do that?
The DeSoto County grand jury returned an indictment on November 29, 1983, charging appellant James Donald Watson and Howard C. Rouse with conspiracy to defraud the First National Bank of Hernando, Mississippi, in violation of Mississippi Code Annotated 97-1-1 (d) (Supp. 1985). After a lengthy delay resulting from attempts to locate appellant and Rouse, the case was set for trial February 24, 1986, resulting in the conviction of appellant.
THE LOWER COURT ERRED IN FAILING TO GRANT APPELLANT'S MOTION FOR A DIRECTED VERDICT, MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT, AND MOTION FOR A NEW TRIAL.
THE LOWER COURT ERRED IN FAILING TO GRANT APPELLANT'S MOTION FOR A CONTINUANCE.
Mississippi Code Annotated 97-1-1 (d) (Supp. 1985), states the pertiment part of the conspiracy statute:
(d) To cheat and defraud another out of property by any means which are in themselves criminal, or which, if executed, would amount to a cheat, or to obtain money or any ...