The material allegations of the bill are denied by the answer, and are in no way supported by the proof. Suit by Henry W. Wagner, as trustee and, ered by the alleged assignment; and, fourth, executor of Anna Maria Ruhl, deceased, and for other and further relief. also individually, against Conrad Ruhl, Jr., as executor of Conrad Ruhl, Sr., deceased, as surviving partner of C. Ruhl & Sons, and against Conrad Ruhl, Jr., and Henry Ruhl as individuals. From decree dismissing the bill, plaintiff appeals. Affirmed. See, also, 105 Atl. 770. Argued before BOYD, C. J., and BRISCOE, THOMAS, PATTISON, URNER, STOCKBRIDGE, and CONSTABLE, JJ. The charge of forgery, in the fourth and seventh paragraphs of the bill, as to the signature of Conrad Ruhl, Sr., to the assignment, and to the assignment itself, was abancloses no fraudulent conduct, on the part of doned at the hearing, and the record disthe defendants as to the assignment, either before or after the death of Conrad Ruhl, W. H. Surratt, of Baltimore, for appel- Sr., the father and partner of Conrad lant. Ruhl, Jr. Charles F. Stein, of Baltimore (Randolph Barton, Jr., of Baltimore, on the brief), for appellees. BRISCOE, J. This record presents an appeal from a decree of the circuit court of Baltimore city, passed on the 16th day of May, 1918, dismissing the plaintiff's bill of complaint, filed therein on the 14th of February, 1918. The bill is filed by the plaintiff, as trustee and executor of Anna Maria Ruhl, deceased, and also in his own right as an alleged party in interest, against Conrad Ruhl, Jr., executor of Conrad Ruhl, Sr., deceased, Conrad Ruhl, Jr., surviving partner of C. Ruhl & Sons, and also against Conrad Ruhl, Jr., and Henry Ruhl, in their individual capacity, as parties in interest. The case was heard, on bill, exhibits, answers, and testimony, taken in open court, under section 261 of article 17 of the Code of Public General Laws. The court below, at the conclusion of the plaintiff's case, declined to hear testimony upon the part of the defendants, and held that the plaintiff's own testimony showed laches, and a prior settlement in an equity suit in the circuit court of Baltimore city, and dismissed the bill. The specific object of the proceeding, it will be seen, was to annul and vacate a certain assignment, dated November 28, 1900, for $5,000, executed by Conrad Ruhl, Sr., to Conrad Ruhl, Jr., and charged by the latter as surviving partner against the interest of the deceased partner in the settlement of the partnership affairs of C. Ruhl & Sons, of which they were the sole partners. The answer avers that the assignment was for a good and valuable consideration, was executed and delivered by Conrad Ruhl, Sr., during his lifetime, on the day of its date; that the consideration for the assignment, among other things, was the desire of Conrad Ruhl, Sr., to equalize the partnership holdings of himself and his son, as he thought that his son had not received that portion of his interest in the firm to which he was fairly entitled. While the assignment is not filed in the case, the proof shows that it was dated the 28th day of November, 1900, and provided as follows: "For value received, I hereby assign unto my son, Conrad Ruhl, Jr., the sum of five thousand dollars as my interest in the firm of C. Ruhl & Sons, which amount is to be deducted from my interest in the partnership and added to his interest therein. As witness my hand and seal this twenty-eighth day of November, 1900" and it is not denied that the signature thereto was in the handwriting of the assignor. The theory of the plaintiff's case is based upon the contention that the assignment was gift of an interest in the firm, and, not having been entered on the books of the firm and perfected in the lifetime of the donor, it was void and not enforceable in a court of equity. not valid and effective because an intended Whatever may have been the effect upon the assignment of the appellants' contention that it was an incompleted gift and the other questions suggested by the counsel for the appellants in his brief, there can be no doubt upon this record that the appellants are concluded from now raising these questions by a prior settlement and a decree of the circuit court of Baltimore city, wherein the appellants in this case were plaintiffs and the appellees were defendants. The prayer of the bill was: First, that the assignment be declared null and void; second, that Conrad Ruhl, as executor of Conrad Ruhl, Sr., and as surviving partner of C. Ruhl & Sons, be required to account to him, as trustee, for all income and profits properly apportionable to the interests belonging It appears that an agreement between the to Conrad Ruhl, Sr., from the time of his parties to that controversy was entered into, death to the extent of the alleged assign- whereby all the differences between all the ment; third, that he account as executor parties in interest should be adjusted, comand surviving partner to him in his individu- promised, and settled according to the terms al capacity for the corpus or principal cov- set out in the agreement, and that a decree 4 should be passed by the court, carrying into effect the provisions of the agreement. The proof shows that this very assignment was discussed and considered in the compromise settlement between the parties, and the $5,000 entry on the books, covered by the assignment, was explained by Mr. Stein, one of the counsel in the case, and was accepted as correct, by Mr. Thomas G. Hayes and Mr. Harry L. Denny, counsel for the appellants, and by the appellant himself. The agreement of settlement was in writing, signed by the parties and their respective counsel, and is set out in full in the record. The terms of this agreement and settlement were subsequently, on the 16th day of May, 1913, included in a consent decree, passed by the circuit court of Baltimore city, carrying into effect the provisions of this agreement. Conrad Ruhl the sum of five thousand dollars, referred to in the decree in the case of Henry W. Wagner, etc., v. Conrad Ruhl, etc., circuit court of Baltimore city, and in consideration thereof we, and each of us, do hereby release him, the said Conrad Ruhl, in his own right and as executor of the last will and testament of his father, Conrad Ruhl, Sr., deceased. The same payment being made in conformity with an agreement filed in same case, and which agreement is referred to and made a part of the re The decree has long since become enrolled, and no attack upon it has been made, or any effort to set aside the release. It would therefore seem to be clear, upon the record now before us, without considering the other points suggested in the argument that the plaintiff is concluded by the proceedings in the former case from raising here the same questions as were disposed of in that case. [1] The decree and release would be a sufficient bar to any further controversy be matter, which had been settled and deter. mined in the former suit between them, even if the plaintiff had otherwise shown himself entitled to relief. By the seventh paragraph of the decree, passed in pursuance of the agreement of the parties thereto, filed in the case, it was "further adjudged, ordered, and decreed that the sum of $5,000 shall be paid to the said Harry W. Wagner, trustee for Anna Maria Ruhl, in full settlement, release, and discharge of all claims and demands of every kind by or on behalf of the said trustee, or by or on between these parties, over the same subjecthalf of the said Anna Maria Ruhl, as his cestui qui trust, for or on account of interest, income, or profits for the use of the interests of said Conrad Ruhl, Sr., deceased, by said Conrad Ruhl, Jr., and for and on ac count of any other sum to which she may claim to be entitled by reason thereof, whether against him in his own right or as executor of the said Conrad Ruhl, Sr., and that upon the payment by Conrad Ruhl, Jr., to the said Henry W. Wagner, trustee, of the said sum of $5,000, a release shall be executed by the said Harry W. Wagner, trustee, and by said Anna Maria Ruhl, to the said Conrad Ruhl, Jr., individually and as executor of said Conrad Ruhl, Sr., from all claims and demands of every kind and description whatsoever for or on account of the matters in this paragraph of this decree recited." It also appears that on the 14th day of July, 1913, Henry W. Wagner, trustee, and Anna Maria Ruhl executed the release, provided by the decree, as follows: Know all men by these presents that we, Henry W. Wagner, also called Harry W. Wagner, trustee under a deed of trust to him from Anna Maria Ruhl, and the said Anna Maria Ruhl, do hereby admit to have received from [2] But apart from this Conrad Ruhl, Sr., the grandfather of the plaintiff died over 18 The decree of settlement was years ago. passed and the release was executed over The bill in this case was not 5 years ago. filed until the 14th of February, 1918, long after the decree had been passed and had become enrolled, although the plaintiff was a party to the proceedings and the agreement upon which the decree was based and passed. It is therefore obvious, under the authorities, that the plaintiff in this case has not shown such diligence in asserting his rights, even if he had been entitled to relief, as to commend him to the favorable consideration of a court of equity. Rice v. Donald, 97 Md. 402, 55 Atl. 620; Warburton v. Davis, 123 Md. 226, 91 Atl. 163; Boyd v. Shirk, 125 Md. 182, 93 Atl. 417. For the reasons stated, we think the court below was warranted, in any aspect of the case, in dismissing the plaintiff's bill, and the decree must be affirmed. Decree affirmed, with costs. the person of deceased, that, after noting the wounds on the person of the dead woman, an examination was made of the hands, held not harmful to accused. 473-EXPERT EVI 10. CRIMINAL LAW In a prosecution for the murder of a woman under circumstances suggesting rape, medical evidence as to the condition of the body when discovered was admissible. 11. CRIMINAL LAW 494-MEDICAL TESTIMONY-QUESTIONS OF FACT. In a prosecution for murder, whether medical testimony as to condition of the body of the murdered woman in connection with all other facts and circumstances showed that rape had been committed upon her was for the jury. 12. CRIMINAL LAW 476-EXPERT EVI DENCE-CAUSE OF DEATH. In a prosecution for the murder of a woman under circumstances suggesting rape, medical testimony that the murdered person died from shock as a result of her injuries held admissible. 13. WITNESSES 263-RECALLING WITNESS -CORRECTION. In a prosecution for murder, where deceased's husband had testified in chief that on the morning of the homicide he had left a dollar bill with his wife, and that he had never seen it since, and after conclusion of testimony was recalled, the question as to whether he had not told a third person that, after the discovery of his wife's body, he had found the dollar bill, was properly excluded, on the state's objection, as being too general and indefinite. 14. WITNESSES 263-RECALLING WITNESS -EXPLANATION OF PRIOR ANSWER-DISCRETION OF COURT. In prosecution for the murder of a woman, where his evidence did not clearly show in what position the funeral director had placed her hands on preparing her for burial, it was within the discretion of the court to recall the funeral 6. CRIMINAL LAW 438-EVIDENCE-PHOTO- director as a witness to explain his prior an GRAPHS. swer. In a murder prosecution, photographs of 15. CRIMINAL LAW 338(3) — EVIDENCE marks and bruises on the body of deceased were RELEVANCY. admissible. 7. CRIMINAL LAW 560-MURDER-Degree OF PROOF. If evidence satisfied jury that the murder had been committed, the burden was upon the state to prove beyond a reasonable doubt that accused committed the crime. 8. HOMICIDE 174(2)-EVIDENCE-ADMISSIBILITY. In a murder trial, where it appeared that accused when arrested had fresh scratches on his face, evidence that the autopsy of the murdered person revealed particles of skin of a colored person under the finger nails was admissible. Evidence as to whether a nurse called as a witness had any experience with eclamptic patients was properly excluded, where there was no offer to prove that the murdered woman had died of eclampsia, and nothing in the case to support such a suggestion. - 16. CRIMINAL LAW 1169(1) — REVIEW HARMLESS Error. In a prosecution for murder, admission of evidence over objection as to what church a witness attended held harmless error. 17. HOMICIDE SIBILITY. 169(6)-EVIDENCE-ADMIS In prosecution for murder, an offer of testimony as to whether witness had heard noises in the home of deceased on the night before the 9. CRIMINAL LAW 1169(1)-HARMLESS ER- day on which her body was found held properly BOR-EVIDENCE. In a prosecution for murder, evidence, by the doctor who had performed the autopsy on refused, in view of uncontradicted evidence of five witnesses that deceased was alive on the morning of such day. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 4 should be passed by the court, carrying into effect the provisions of the agreement. The proof shows that this very assignment was discussed and considered in the compromise settlement between the parties, and the $5,000 entry on the books, covered by the assignment, was explained by Mr. Stein, one of the counsel in the case, and was accepted as correct, by Mr. Thomas G. Hayes and Mr. Harry L. Denny, counsel for the appellants, and by the appellant himself. Conrad Ruhl the sum of five thousand dollars, referred to in the decree in the case of Henry W. Wagner, etc., v. Conrad Ruhl, etc., circuit court of Baltimore city, and in consideration thereof we, and each of us, do hereby release him, the said Conrad Ruhl, in his own right and as executor of the last will and testament of his father, Conrad Ruhl, Sr., deceased. The same payment being made in conformity with an agreement filed in same case, and which agreement is referred to and made a part of the release. As witness our hands and seals this 14th day of July, 1913. The agreement of settlement was in writ- Henry W. Wagner, Trustee. [Seal.] By the seventh paragraph of the decree, passed in pursuance of the agreement of the parties thereto, filed in the case, it was "further adjudged, ordered, and decreed that the sum of $5,000 shall be paid to the said Harry W. Wagner, trustee for Anna Maria Ruhl, in full settlement, release, and discharge of all claims and demands of every kind by or on behalf of the said trustee, or by or on behalf of the said Anna Maria Ruhl, as his cestui qui trust, for or on account of interest, income, or profits for the use of the interests of said Conrad Ruhl, Sr., deceased, by said Conrad Ruhl, Jr., and for and on ac count of any other sum to which she may claim to be entitled by reason thereof, whether against him in his own right or as executor of the said Conrad Ruhl, Sr., and that upon the payment by Conrad Ruhl, Jr., to the said Henry W. Wagner, trustee, of the said sum of $5,000, a release shall be executed by the said Harry W. Wagner, trustee, and by said Anna Maria Ruhl, to the said Conrad Ruhl, Jr., individually and as executor of said Conrad Ruhl, Sr., from all claims and demands of every kind and description whatsoever for or on account of the matters in this paragraph of this decree recited." It also appears that on the 14th day of July, 1913, Henry W. Wagner, trustee, and Anna Maria Ruhl executed the release, provided by the decree, as follows: Know all men by these presents that we, Henry W. Wagner, also called Harry W. Wagner, trustee under a deed of trust to him from Anna Maria Ruhl, and the said Anna Maria Ruhl, do hereby admit to have received from The decree has long since become enrolled, and no attack upon it has been made, or any It would therefore seem to be clear, upon the record now before us, without considering the other points suggested in the argument that the plaintiff is concluded by the proceedings in the former case from raising here the same questions as were disposed of in that case. [1] The decree and release would be a sufficient bar to any further controversy between these parties, over the same subjectmatter, which had been settled and deter mined in the former suit between them, even if the plaintiff had otherwise shown himself entitled to relief. [2] But apart from this Conrad Ruhl, Sr., the grandfather of the plaintiff died over 18 The decree of settlement was years ago. passed and the release was executed over The bill in this case was not 5 years ago. filed until the 14th of February, 1918, long after the decree had been passed and had become enrolled, although the plaintiff was a party to the proceedings and the agreement upon which the decree was based and passed. It is therefore obvious, under the authorities, that the plaintiff in this case has not shown such diligence in asserting his rights, even if he had been entitled to relief, as to commend him to the favorable consideration of a court of equity. Rice v. Donald, 97 Md. 402, 55 Atl. 620; Warburton v. Davis, 123 Md. 226, 91 Atl. 163; Boyd v. Shirk, 125 Md. 182, 93 Atl. 417. For the reasons stated, we think the court below was warranted, in any aspect of the case, in dismissing the plaintiff's bill, and the decree must be affirmed. Decree affirmed, with costs. Where it appears that the transcript of the record in an appeal in a murder prosecution was not filed in time, because the bill of exception had not been approved by the state's attorney, but had twice been submitted to the judge within the time limited by previous orders, and that delay in transmitting the record was not the fault of appellant, the appeal will not be dismissed. In a prosecution for the murder of a woman under circumstances suggesting rape, medical testimony that the murdered person died from 3. CRIMINAL LAW 1092(13)-APPEAL-EX- shock as a result of her injuries held admissible. CEPTIONS-SIGNATURE. 13. WITNESSES 263-RECALLING WITNESS In a prosecution for murder, where deceased's husband had testified in chief that on the morning of the homicide he had left a dollar bill with his wife, and that he had never seen it since, and after conclusion of testimony was recalled, the question as to whether he had not told a third person that, after the discovery of his wife's body, he had found the dollar bill, was properly excluded, on the state's objection, as being too general and indefinite. 14. WITNESSES 263-RECALLING WITNESS -EXPLANATION OF PRIOR ANSWER-DISCRETION OF COURT. In prosecution for the murder of a woman, where his evidence did not clearly show in what position the funeral director had placed her hands on preparing her for burial, it was within the discretion of the court to recall the funeral 6. CRIMINAL LAW 438-EVIDENCE-PHOTO- director as a witness to explain his prior an GRAPHS. In a murder prosecution, photographs of marks and bruises on the body of deceased were admissible. 7. CRIMINAL LAW 560-MURDER-DEGREE OF PROOF. If evidence satisfied jury that the murder had been committed, the burden was upon the state to prove beyond a reasonable doubt that accused committed the crime. 8. HOMICIDE BILITY. 174(2)-EVIDENCE-ADMISSI In a murder trial, where it appeared that accused when arrested had fresh scratches on his face, evidence that the autopsy of the murdered person revealed particles of skin of a colored person under the finger nails was admissible. 9. CRIMINAL LAW ROR-EVIDENCE. 1169(1)—HARMLESS ER In a prosecution for murder, evidence, by the doctor who had performed the autopsy on In prosecution for murder, an offer of testimony as to whether witness had heard noises in the home of deceased on the night before the day on which her body was found held properly refused, in view of uncontradicted evidence of five witnesses that deceased was alive on the morning of such day. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |