Suit by Henry W. Wagner, as trustee andered 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.

ing the bill, plaintiff appeals. See, also, 105 Atl. 770.

Affirmed.

The material allegations of the bill are denied by the answer, and are in no way supported by the proof.

The charge of forgery, in the fourth and From decree dismiss-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 dis

Argued before BOYD, C. J., and BRISCOE,

THOMAS, PATTISON, URNER, STOCK-
BRIDGE, and CONSTABLE, JJ.

the 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 Rubl, 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:

The theory of the plaintiff's case is based upon the contention that the assignment was not valid and effective because an intended 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.

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

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.

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 agree-effort to set aside the release.

As witness our hands and seals this 14th day of July, 1913.

Henry W. Wagner, Trustee. [Seal.]
Anna Maria Ruhl.
[Seal.]
Test: Armstead M. Webb.

ment.

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 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 years ago. The decree of settlement was passed and the release was executed over 5 years ago. The bill in this case was not 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.

below was warranted, in any aspect of the For the reasons stated, we think the court case, in dismissing the plaintiff's bill, and the decree must be affirmed.

Decree affirmed, with costs.

DENCE-CONDITION OF BODY.

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

-CORRECTION.

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

swer.

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

DISCRETION-Order of PROOF.

1153(3)-REVIEW-teen hundred and seventeen, at the county aforesaid, feloniously, willfully and deliberately with premeditated malice aforethought did kill and murder Lottie May Brandon, contrary to the form of the act of Assembly in such case made and provided and against the peace, government and dignity of the state."

As to what is rebutting evidence and what is evidence properly adducible in chief is one properly addressed to the discretion of the trial court, and its ruling will not be reversed for error, unless manifestly wrong and substantially injurious.

Appeal from Circuit Court, Baltimore County; Frank I. Duncan, Judge.

John Snowden was convicted of murder, and he appeals. Motion to dismiss appeal denied, and judgment affirmed.

Argued before BOYD, C. J., and BRISСОЕ, BURKE, THOMAS, PATTISON, URNER, STOCKBRIDGE, and CONSTABLE, JJ.

Snowden pleaded not guilty, and, upon the suggestion of the state's attorney for Anne Arundel county, the case was removed to the circuit court for Baltimore county for trial. The case was tried in that court in January, 1918, and on the 31st day of January, 1918, the jury found Snowden guilty of murder in the first degree. A mo

tion for a new trial was made and overruled, and on the 13th of February, 1918, the court sentenced Snowden to be hanged. The appeal in this case was taken from that judg

A. Theodore Brady, of Annapolis, and C. ment. Gus Grason, of Towson, for appellant.

Nicholas H. Green, State's Atty., of Annapolis, and Ogle Marbury, Acting Atty. Gen. (Albert C. Ritchie, Atty. Gen., on the brief), for the State.

BURKE, J. John Snowden, the appellant on this record, was indicted by the grand jury for Anne Arundel county for the murder of Lottie May Brandon, a young married woman living at No. 29 Second street in the city of Annapolis. The murder was alleged to have been committed on the 8th of August, 1917. The indictment contained two counts. The first count alleged:

The state has moved to dismiss the appeal upon two grounds: First, because the record was not transmitted to this court within the time required by law; second, because the bills of exceptions were not signed during the term at which the judgment was entered, nor within any extension of the time for such signing which had been granted by the court.

[1] The judgment, as we have stated, was entered on the 13th of February, 1918, and the order for an appeal was filed March 2, 1918. The appeal was therefore taken within the time required by rule 23 of this court (80 Atl. xi). But the transcript of the record was not filed in this court until October 5, 1918-a little more than seven months after the order for appeal was filed. It was not transmitted earlier because the bills of exceptions were not signed until the 23d of September, 1918. But the record shows that the delay in the signing of the exceptions and in the transmitting of the record were not chargeable to the default or to the laches of the appellant or his counsel. A certificate of Judge Duncan, who presided at the trial, appears in the record by which it is shown that the bill of exceptions, "in their present shape," were submitted to him by the counsel for the appellant before the 15th of April, 1918-the time limited by previous orders of court for filing exceptions being May 15, 1918. Judge Duncan told counsel that the exceptions should be presented to the state's attorney for Anne Arundel county for approval, and they were presented to the state's attorney for that county on or before April 12, 1918. On the 27th of April, 1918, the exceptions were again presented to Judge Duncan "in their present shape" without an agree ment between counsel as to what they should contain having been reached. Judge Duncan The second count alleged: took no action upon the exceptions, but "That the said John Snowden on the eighth handed them over to Mr. Hartman, the day of August in the year of our Lord nine-state's attorney for Baltimore county, with

That the said John Snowden, on the date and at the county aforesaid, "in and upon one Lottie May Brandon, in the peace of God and of the said state then and there being, feloniously, willfully and of his malice aforethought did make an assault, and that he, the said John Snowden, then and there, the said Lottie May Brandon, by and upon the neck and throat of her, the said Lottie May Brandon, with both the hands of him, the said John Snowden, did feloniously, willfully and of his malice aforethought, grasp and seize, thereby choking and strangling the said Lottie May Brandon, and that he the said John Snowden, with a certain blunt instrument, a further description whereof is unknown to the jurors aforesaid, in his hand then and there had and held the said Lottie May Brandon, in and upon the head of her, the said Lottie May Brandon, then and there feloniously, willfully and of his malice aforethought, did strike, giving to her, the said Lottie May Brandon, then and there, with the blunt instrument aforesaid, a further description whereof is unknown to the jurors aforesaid, as aforesaid, by the stroke aforesaid, in and upon the head of her, the said Lottie May Brandon, a mortal wound, of which said choking, strangling and mortal wound she, the said Lottie May Brandon, then and there died."

elected to be tried by a jury. They were the exclusive judges of the weight and sufficiency of the evidence to establish the guilt of the accused, and we have no power to disturb their finding, unless we find that the court during the course of the trial committed some reversible or injurious error either in the admission or rejection of testimony.

The following facts were proved by the state without contradiction; First, that Mrs. Brandon on the morning of August 8, 1917, after the departure of her husband to take up his work at the Experiment Station, Annapolis, where he was employed, was seen alive at her home. One witness, Ida Burch, testified that on that morning she saw Mrs.

the request that he go over the exceptions | the guilt or innocence of the appellant. He with Mr. Brady, one of the counsel for the appellant. Judge Duncan was absent from Towson by reason of illness from July 5 until September 16, 1918, and he heard no more of the exceptions until the 12th of August, 1918, when they were received by him in New York. Before acting upon them, Charles S. Williams, one of the counsel for the appellant, called upon him and requested the return of the exceptions in order to go over them with the state's attorney for Anne Arundel county. The judge did not see the exceptions again until about the 16th of September, when they were returned to him by Mr. Williams for his action; no agreement having been reached. The exceptions were signed by Judge Duncan on the 23d of September, 1918, and the bills of exceptions | Brandon come to the door of her home and then acted upon were the same ones which on two occasions in April, 1918, had been presented to him by counsel for the appellant. [2] It thus appears that the appeal was taken in time, and that the exceptions were prepared by the counsel for the accused with reasonable promptness, and submitted to the judge on two occasions within the time limited by previous orders regularly passed. This was all that was required of counsel, and under the circumstances stated it cannot be held that the delay in signing the exceptions or transmitting the record was due to any fault of the appellant or his counsel. We said in Wilmer v. Baltimore, 116 Md. 338, 81 Atl. 685, that in cases at law it is the settled practice in this state, in the event of a disagreement between counsel, for the trial judge to determine what shall constitute the record. The motion to dismiss the appeal will therefore be denied.

[3] During the progress of the trial, 66 exceptions were taken by the appellant to rulings of the court to questions of evidence. Forty-six of these exceptions are not pressed in this court, but we have considered them carefully and find no reversible error in any of them. The exceptions relied on are the third, fourth, fifth, twelfth, fourteenth, fifteenth, sixteenth, twenty-first, twenty-third, thirty-first, thirty-third, thirty-fourth, thirtyseventh, forty-sixth, forty-seventh, fortyninth, fiftieth, fifty-first, fifty-fourth, and fifty-sixth. Three of the exceptions, viz. the fifth, fiftieth, and fifty-first, were not signed by the presiding judge, and therefore cannot be considered by us. They cannot be regarded as valid exceptions. Poe on Pleading & Practice, vol. 2, § 321; Jones v. State, 118 Md. 67, 83 Atl. 1100. Before passing on the remaining seventeen exceptions, which are relied upon for the reversal of the judgment, we will give a brief outline of some of the important facts upon which the state relies to convict the appellant.

[4] It must, however, be borne in mind that this court has no power to pass upon

pick up a paper and go into her house. She fixed the time she saw her as between half past 10 and 11 o'clock. Another witness, Grace Myers, testified that she saw Mrs. Brandon on the day of her death about 10:30 or quarter of 11 o'clock; that Mrs. Brandon came to the door and picked up a paper and spoke to the witness. Another witness, Thomas A. King, testified that on the morning of the same day he saw Mrs. Brandon sitting in the kitchen window of her home. Secondly, that the apartment occupied by Mr. and Mrs. Brandon was the lower floor of 29 Second street and consisted of three rooms and a bath, the middle room being the bedroom. About 5 o'clock on the afternoon of Wednesday, August 8, 1917, Mr. Brandon returned from his work. He entered by the front door into the front room and called his wife. He went into the middle or second room, and found Mrs. Brandon lying on the bed. He spoke to her and touched her shoulder, and she did not answer. He thought she had fainted or was sick. He became alarmed and went to get a physician. He notified a neighbor, Mrs. Burch, who lived near by, and she went to the house, and found Mrs. Brandon dead. The fact of her death soon became known in the neighborhood, and a number of people gathered in and about the house. Dr. Joseph C. Joyce reached the house between

5 and 5:30 o'clock and found Mrs. Brandon dead. The body was lying on the left side with the head to the foot of the bed, her hair was loose and wrapped around her neck, and her limbs were exposed. Her limbs were her dress was pulled up about her knees and bruised and her neck was scratched and bruised. She had a wound in her forehead from which the blood had flowed, saturating the sheet and mattress. Dr. Joyce made an autopsy of the body on the night of August 8, 1917, at the Emergency Hospital, Annapolis, assisted by Dr. Walton H. Hopkins. He described the condition of the body, as to bruises, disclosed at the autopsy, which he said were the same bruises he noticed when he first went to the house and saw the body: