Keebey v. Stifft

• Decision Date: 05 July 1920
• Docket Number: 98
• Citation: 224 S.W. 396,145 Ark. 8
• Parties: KEEBEY v. STIFFT
• Court: Arkansas Supreme Court

224 S.W. 396

145 Ark. 8

KEEBEY v. STIFFT

No. 98

Supreme Court of Arkansas

July 5, 1920

Appeal from Pulaski Circuit Court, Second Division; Guy Fulk, Judge affirmed.

Affirmed.

Emerson Donham & Shepherd, for appellant.

The court erred in directing a verdict for defendants, as there was ample evidence to sustain a verdict for appellant. A case for a jury was made of malicious prosecution. No probable cause was shown and defendants acted maliciously, as plaintiff had been tried and duly acquitted.

Moore Smith, Moore & Trieber, for appellees.

1. Stifft acted with probable cause in causing appellant's premises to be searched, and the question of malice is immaterial. 71 Ark. 360; 24 How. 544. The directed verdict for defendants was proper. 111 Ark. 309; 104 Id. 268. All the facts pointed to Keeby's guilty knowledge. There was no dispute as to the facts known to Stifft and the information received by him, and it was a question for the court to determine as to whether there was probable cause. 124 Ark. 34. There was nothing to submit to a jury. Stifft had no connection with the prosecution before the municipal court except to report the information he had received and to appear as a witness at the trial. 100 Am. St. Rep. 319; 71 Ark. 351.

2. As to probable cause, see 71 Ark. 358. The testimony of Bernhardt settles the question, and the court properly directed an acquittal for defendants.

OPINION

WOOD, J.

For several years P. G. Keebey had been engaged in the jewelry business in Little Rock, Arkansas, where he had been a resident all of his life. Chas. S. Stifft was engaged in the jewelry business in Little Rock and Sidney H. Florsheim, a son-in-law of Stifft, was employed by Stifft in his jewelry store.

On September 26, 1916, the deputy district attorney filed an information before the municipal court of Little Rock charging Keebey with the crime of receiving stolen property of the value of more than $ 10, knowing that the same had been recently stolen, and caused a warrant of arrest of Keebey to be issued thereon. Stifft, on the next day, filed an affidavit that certain property which had been stolen from his store was in the possession of Keebey in his store, and had a warrant issued for searching Keebey's store. Keebey was arrested and taken to police headquarters, and while there Stifft's private detective asked him a number of questions about some 18-carat rings, and he told the detective that he knew nothing about them. The detective said, "You are a damn liar," and turned around and said to the officers, "Lock the son-of-a-bitch up," whereupon he, Keebey, was taken to the jail and locked up. He was confined to the jail about three and one-half hours before he had a chance to give bond. Stifft and his son, and a detective employed by Stifft, were present when a search was made and did practically all the searching. Stifft seemed angry while making the search. Keebey's store was located on the first floor of the Boyle building, facing Fifth street, one of the most public places in Little Rock. There were quite a number of people looking in while the search was going on. They searched the entire store. The officers making the search took only such articles as Stifft gave them. They took rings and other jewelry. Keebey was not present while the search was being made, but his wife and clerks were there. Stifft told some of Keebey's clerks that the jewelry was stolen, because Keebey was getting it too cheap. Most of the jewelry was taken from Keebey's show cases. Among other things they took some gold bullion in nugget form weighing 8 to 12 ounces which was worth between $ 75 and $ 80, and was made from accumulations of the filings from the benches in the shop, representing an accumulation of possibly 18 months. Stifft said that this was his gold. They also took from the show cases some new ring mountings and some battered jewelry. They found some jewelry in Keebey's safe, which Stifft identified as his property. Stifft remarked during the search, "I notice that the largest part of Keebey's stock is made up of goods from my store." His manner was "pretty rough" during the entire search.

The principal part of Keebey's stock was bought from wholesale houses through traveling salesmen. Keebey purchased all of the jewelry, that was taken from his store by Stifft and the officers, openly and publicly over the counter. It was the custom among jewelers to buy up old gold such as was sold to Keebey by Bernhardt. Keebey could not tell from whom he purchased the ring mountings, but he bought some of the jewelry and ring mountings from Alec Bernhardt. He bought from him ten or fifteen times. He paid for the things he bought from him by check on the Exchange National Bank. In one instance he paid him $ 9. Paid $ 27.50 for the ring mountings, which was about $ 6 less than the market value. Keebey had bought old gold and jewelry also from a man by the name of Choate, who as a side line bought up old rings and jewelry of all kinds, also new jewelry. The buying and selling of old gold and jewelry was a business like buying other junk, such as iron and rubbish. Keebey had known Bernhardt eleven years, and had never had occasion at any time to suspect him of having stolen, or being connected with the stealing of, jewelry or anything else. He had been intimately associated with him, both being on the drill team of the Knights of Pythias. When Bernhardt brought the mountings to Keebey, the latter offered him 70 cents. He first refused to take it, demanding 85 cents, but afterward accepted the price Keebey offered. Sometimes Keebey would weigh up articles offered him by Bernhardt and make him a price which sometimes Bernhardt would refuse to take and other times he would accept.

Bernhardt had worked for Pfeifers', for Blass, and also had had charge of a men's furnishing store. Afterward he was a traveling stationery salesman for a firm in St. Louis. At one time he represented one of the printing companies.

Keebey thought that Bernhardt was engaged in buying up old gold and reselling it as a side line, just as Mr. Choate was doing who worked for the Joppa Mattress Factory. Keebey never asked Choate where he got his old gold, neither did he ask Bernhardt, except on one occasion he asked Bernhardt where he got the ring mountings. Bernhardt said that he got them down in Texas. Keebey did not think it odd for Bernhardt to buy up those mountings, as he knew lots of men that handle the best lines. Keebey knew Isenstadt & Company, wholesale jewelers of St. Louis. He knew their trade mark, which was a square with a small 'E' in it. They also put the number of the carat inside the ring. Keebey exhibited a white top ring mounting stamped 14-k, which was taken from his stock of goods and which is similar to the white top mountings claimed by Stifft which Keebey purchased from Bernhardt. When he bought the rings from Bernhardt, he did not make any particular examination of the brand on them.

Sidney Mayer for eleven years had been working for Stifft in his jewelry store and at the time Keebey was arrested made a confession in the presence of Stifft, Florsheim, and Stifft's private detective. He stated that he had taken the jewelry from Stifft's store. Stifft asked him whether Keebey knew that the goods came from Stifft's establishment, and Mayer answered that so far as he knew Keebey knew nothing about it. Mayer had never told Keebey that the jewelry he was getting from Bernhardt had been stolen. Stifft seemed to believe that Keebey had known about it and was trying to make Mayer admit that he knew that Keebey knew about it. Mayer told Stifft that he did not see how Keebey could know that the goods were stolen because when he, Mayer, turned them over to Bernhardt he told Bernhardt that he got them from different parties mostly out of town. Stifft said that he thought Keebey was the most guilty, and if Mayer would come clean and tell the truth he would try to be as lenient as he could with him. He said he was sure that Keebey knew about it. Stifft said that the man who received stolen property was worse than the man that took it. Mayer told him that if he had to go to the penitentiary for life and leave his wife and child that he couldn't change his statement because that was the truth. Mayer began stealing the jewelry from Stifft some time before he was arrested. He turned the jewelry over to Bernhardt to be sold. Bernhardt was to sell it, bring Mayer the money and Mayer was to pay Bernhardt all over a certain amount. Mayer told Bernhardt what he was to get for it. Bernhardt asked Mayer where he got the gold, and Mayer replied "from a negro." Mayer had no agreement with Bernhardt as to where he was to sell the old gold and did not know where he was selling it until after the first two or three sales. Mayer and Bernhardt had a system of signals. When Bernhardt would get an offer on the old gold he would call up Mayer and say that he had an offer on line 5 or line 10, which would mean $ 5 or $ 10. He would make these calls from some 'phone outside the place where he received the offer. The jewelry Mayer would have for sale would be new articles which he had taken from the stock of Stifft and hammered on and battered up and rubbed in so as to make it appear as old gold. He would do this in the mail order department. He would then take it and give it to Bernhardt that day or the next for sale. Bernhardt almost always disposed of it the same day that Mayer gave it to him. They would see each other that day or the next and make a division of the proceeds. Mayer would not want to guess at the quantity of jewelry he had stolen from Stifft in that manner. If in his written confession he stated that he had misappropriated $ 700 worth of merchandise the...