Mahan v. Adam

Pattison, J., delivered the opinion of the Court. This is an appeal from a judgment recovered in the Baltimore City court by Mildred J. Adam, the appellee, against the appellant, Charles Mahan, in an action for false imprisonment. In the trial of the case twelve exceptions were taken to the court’s rulings. One upon the prayers, including its action in overruling the special exceptions to the granting of the plaintiff’3 third prayer.

The other exceptions relate to its rulings on the evidence. By the defendant’s first prayer, which was refused, the court was asked to instruct the jury that there was no evidence legally sufficient to entitle the- plaintiff to recover. In passing upon this ruling it will be necessary to go to some length in stating the evidence produced at the trial. The plaintiff testified that the defendant, who was engaged in the candy business, had two stores in the City of Baltimore, one at 413 North Howard Street and the other on Baltimore Street, next door to the Emerson Hotel.

The plaintiff, a young woman, twenty years of age at the time of the trial, was, with others, employed as saleswoman ³⁵⁷ at tlie Howard Street store, and liad Leen so- employed by tlie defendant for about three weeks when, on the 28th day oí December, 1921, the defendant said to- her that lie had been told by his daughter that she, the plaintiff, had been “topping off” sixty-cent candy with dollar chocolate-s. -She denied the accusation, and he replied that he was only telling her what his daughter had told him. On the next day, December 29th, the defendant said to her, “Listen, kid, I want year to go to the Emerson with ine this evening.” -She told loin she could not go. He then asked where she was going that evening and she replied, “Yowhere.” Whereupon he asked her why she could not go with him to the Emerson. She said slip had to go home.

He then told her to- get her supper at the store and tell her father and mother she would not be home until eleven o’clock. She asked him “What for,” and lie said, “My skinny girl has- gone b-ack on me and I need someone.” Then plaintiff then asked him what bis wife would say, -and he replied “the old girl” would never find it out. After saying this be walked off, but be carne back to her and said, “You do not understand me, L want, you to- go to the store next to the Emerson,” and be again told her to call up her people and tell them she would not be home until 11 o’uloek and to get her supper at the store. When she arrived at. the Baltimore Street store she found in charge of it a young woman whom she had not seen before, who showed her “bow to ring up- on the cash irgister.” It bad separate keys for the soda and candy sales.

The war tax was kept on a piece of paper, and she was shown the money box under the counter where she was to put the money. After the young woman had left the store, the plaintiff made a few minor sales and in each case rang up the register as she had been directed. Thereafter, about 7 o’clock, a woman came in the store and asked for a two-pound box of assorted chocolates, the price of which was sixty cents a pound. The plaintiff proceeded to wait upon her, but while ³⁵⁸ doing so a man came in and asked for a hot chocolate, saying that he was in a hurry.

With the, woman’s consent, the plaintiff waited upon the man and received from him ten cents for the hot chocolate. This she put upon the register and then waited upon the woman, who gave to her one dollar and twenty cents for the assorted chocolates. She then ’phoned to her people and took, five cents of that money to pay the charge. This was necessary as. it was a pay ’phone.

The balance, one dollar and fifteen cents, she put in the cash register and rang it up-, and the ten cents received for the hot chocolate she put in the box and rang it up. When this was done Mahan came in and .asked her if she had been busy. She told him she had not been very busy. He then said, after looking at the register, “What is, the one dollar and fifteen cents for ?” She at once became nervous because, of the w:ay in which he acted and the manner1 in which he asked the question.

She replied, “I sold a two-pound box of candy for one dollar and fifteen cents.” He then told her to close the store at 10.30 o’clock and go home, and walked out, saying good night. After that Mr. Davis., who at that time was unknown to her, but who, she afterwards learned, was a detective, came in the store .and asked for two. pounds of assorted chocolate for one dollar. She told him she could not sell two pounds for one dollar, that the price was sixty cents a pound, hut she would fix him up one and three-quarter pounds for one dollar. While she was waiting on him, two hoys came in, and she sold them two coca colas, the proceeds of which she rang up>, and when she received the one dollar from Mr. Davis, she rang up that sale as. he was going out the door and “made out a slip to that effect.” 'Thereafter the. defendant again came into the store, followed by Mr. Davis and a woman to. whom she had sold the chocolates, Mrs..

Hasketh, who was. also a detective. The defendant said to them, “Take that thief out of here, take her out of here, she stole fifty dollars from, me, ten dollars a day, ³⁵⁹ and she is a thief, do your duty, take her out of here.” Davis said to her, “Come on to headquarters.” The plaintiff asked what she had done and Mrs. Hasketh said, “You know you did not ring* up the ten cents of the young man’s who came in .and got. a hot chocolate. The de^ fendant had in the meantime been to the cash register, taking-off the tape and looking- at the sales, and to the cash drawer, and her pocket book was. lying on the counter, “though, the defendant did not go near it.” That he told her to come around to headquarters. Mrs. Hasketh took her by the arm and they together walked up Oalvert Street to the court house.

While in the store, the plaintiff told Davis and Mahan that she used the missing five cents to pay the ’phone charges already mentioned, and she suggested they could call up. the number and ascertain the truth of her statement, which they did not do. That Davis, while still in the store, said in the presence of Mahan, “This young lady has done nothing, outside of taking the five cents she has told you about,” but the defendant said, “Do your duty, take her out.” Mrs. Hasketh then said, “What about tbe ten cents you also- took?” Tbe plaintiff replied that, she had put it in the box; that she could see it on the sales sheets., and if she would count the money she would find it in the box. The witness further testified that she had been paid off the Saturday before and gave her mother eight dollars and had four dollars herself, and at this time she had in her purse around three dollars and told the defendant to look in her pocket if he thought she took the money; that Mr. Davis said, “Ho, I know where the money has gone, I won’t search you,” and witness said, “Well, let him (meaning Mr. Mahan) look in it,” and lie would not search the witness; that the defendant, asked her to. tell him who had been taking his money if she had not, .and she told him that she had seen his daughter take money out, of the cash register several times, but did not know what for. On their arrival at the court house she was taken to the office of McGovern, captain of detectives.

The defendant ³⁶⁰ there repeated the charge made against her that she had stolen money from him and, as she said, both he and Davis tried to make her confess; she had stolen it. She remained at the detective’s office until 11.30 o’clock, when she was permitted to go home, although, as she says, the defendant insisted upon her being held .and sent to the central station. "When she left she; was- told by Davis to appear at three o’clock on the next afternoon, which she did and at that time she was released and told to go home. She was never indicted and tried upon the charge of stealing defendant’s money.

On cross-examination she admitted that she had said to Mrs. Hasketh that “I have never done anything like this before, and please don’t tell my father.” She said, however, in explanation, that she was talking about the five cents. She also stated that it was about 9.30 when she was taken from the store. George W. Davis, the detective, when produced as a witness for the plaintiff, testified that he had known the defendant for five or six years) that, on December 29th, 1921, the defendant was in the office and made the complaint that he had a saleslady, whom he suspected of stealing fifty dollars from him the previous week, that he had arranged for her to come to the store that night and had also arranged to have a woman detective meet the witness to see if they could trap1 the suspected woman. The witness met the defendant at 8 o’clock and with him was Mrs. Hasketh, who the witness knew to be a store detective.

The defendant gave to Mrs. Hasketh one dollar and twenty cents and the witness one dollar, with which to purchase candy from the plaintiff in his store. The-witness took the ■serial numbers of the notes and punched the eyes of George Washington on each of them. Mrs. Hasketh just went into the store and purchased candy and, upon her return, the witness went to the store. He asked the price of candy and was told by the plaintiff that it was sixty cents a pound, he said he wanted one dollar’s worth, the plaintiff said she would have to make up two pounds light or a pound and three- ³⁶¹ quarters.

She wrapped up the package and he handed her the dollar, which was. a marked dollar. He was then five or six feet from the door and after handing the money to her he immediately went out without waiting to see what she did with the money. He was instructed hy the defendant not to wait to see what she did with it. After this Mr. Mahan went to the store .after Mrs. Hasketh made her purchase and before the witness made his, and looked at the cash register and said there was a dollar and fifteen cents rung up.

He also testified that when the three, the defendant, Mrs. Hasketh and himself, went into the store, the defendant asked the plaintiff if she remembered selling this lady, Mrs. Hasketh, a two ponnd box of eandy, and she told him she had; that the defendant looked on the register and saw the money ($1.20) was not rung up and the plaintiff broke down and started crying and said she had never done anything like that before. The defendant told the witness to. do hisi duty and that he and Mrs. Hasketh started to take the plaintiff out. The plaintiff started crying and the witness asked her to come bads to the rear room as he wanted to talk to her about it; she said she never did it before, that the money was in her pocket book, she opened her pocket book and had “three dollars and some change.” The witness looked over the money but did not see the serial numbers he had placed with her, “there were two one dollar notes and neither of them was the money sent in to purchase the candy.” The witness told the defendant “that the plaintiff was only five cents, short and she has explained that thoroughly”; that she had used it to call up her people to tell them she. had to work that night, as she was directed. The defendant then said that “the plaintiff had no business to take the five cents and if she would take a nickel she would take more,” and told the witness, to do his •duty.

The plaintiff then started to plead with the defendant hut he walked away, and would not have anything to do with her. The witness further testified that the plaintiff said she did not want her father to know anything about it, she had never done it before, and when the plaintiff explained about- ³⁶² the ’phone call, the defendant said “she had lied about that lady, Mrs. Hasketh, selling this two pounds of candy,” and asked the plaintiff what right she had to use his nickel; that the plaintiff pleaded with the defendant not to have her arrested, and several times the defendant told the witness “to do his duty.” He did not recall any conversation between the plaintiff and the defendant with reference to the fifty dollars. He further testified that he questioned the plaintiff for one-half or three-quarters of an hour at headquarters and tried to get her to tell him the exact truth of the matter , “but she had sworn up and down