existed, and that the grantor in the deed was fictitious. In the option agreement, signed by Judge Russum as trustee and as attorney for the purchaser, the name of the latter, as copied for the record, is given as Henutt, and that is the name which the court below, with its ample opportunity to inspect the original papers, treated as the correct designation of the person to whom the land was sold by the trustee. In the face of the certificate of the notary in Philadelphia before whom the deed was acknowledged, we are not at liberty to hold upon mere negative proof of failure to find the grantor during the pendency of this cause that no such person was in existence at the time of the execution of the deed. The action of Judge Russum as trustee in making and reporting the sale precludes any question as to his knowledge of the purchaser's identity. Upon the case presented we can have no doubt as to the propriety of the decree passed by the court below dismissing the bill of complaint. Decree affirmed, with costs. (128 Md. 122) FRICK V. STATE. (No. 9.) (Court of Appeals of Maryland. Feb. 10, 1916.) 1 HOMICIDE 158(3)-EVIDENCE-ADMISSIBILITY-GENERAL THREATS. In a prosecution against a railroad policeman for homicide, threats made by the accused are admissible, though they were not directed against deceased or against any class to which he belonged. [Ed. Note.-For other cases, see Homicide, Cent. Dig. § 295; Dec. Dig. 158(3).] 2. HOMICIDE 158(2) ADMISSIBILITY OF EVIDENCE-THREATS-REMOTENESS. The remoteness or nearness in time of threats to kill made by accused do not affect the admissibility of such threats but only the weight to be attached to them. [Ed. Note. For other cases, see Homicide, Cent. Dig. § 294; Dec. Dig. 158(2).] Appeal from Criminal Court of Baltimore City; John J. Dobler, H. Arthur Stump, and Carroll T. Bond, Judges. William H. Frick was convicted of manslaughter, and he appeals. Affirmed. Argued before BOYD, C. J., and BRISCOE, BURKE, PATTISON, URNER, STOCKBRIDGE, and CONSTABLE, JJ. Raymond S. Williams, of Baltimore (Harry B. Wolf, of Baltimore, on the brief), for appellant. Horton S. Smith, Asst. State's Atty, of Baltimore, and Albert C. Ritchie, Atty. Gen. (Wm. F. Broening, State's Atty., of Baltimore, on the brief), for the State. murder, guilty of manslaughter, and sentence was duly imposed. Fourteen bills of exception were reserved in the course of the trial, all upon questions of the admissibility of evidence. At the hearing of this appeal all the exceptions were abandoned by the appellant except the third, fourth, sixth, seventh, and ninth. The state insists that the first, second, third, fourth, fifth, seventh, eighth, ninth, and fourteenth exceptions were not in such form as properly to be considered, for the reason that in each of these exceptions a number of questions have been included in a single exception. This method of taking exceptions has been frequently condemned by this court (Ellicott v. Martin, 6 Md. 517, 61 Am. Dec. 327; Tall v. Steam Packet Co., 90 Md. 250, 44 Atl. 1007, 47 L. R. A. 120; Acker M. & C. Co. v. McGaw, 106 Md. 560, 68 Atl. 17), and in Junkins v. Sullivan, 110 Md. 539, 73 Atl. 264, B. & O. v. Rueter, 114 Md. 700, 80 Atl. 220, Cit. Mut. F. I. Co. v. Conowingo Br. Co., 116 Md. 439, 82 Atl. 372, Harris v. Hipsley, 122 Md. 435, 436, 89 Atl. 852, and Weeks v. State, 126 Md. 223, 94 Atl. 774, this court refused to consider exceptions which contained this vice. In most of these cases, under one exception was sought to be included essentially distinct propositions, and thus differed from the exceptions criticized by the state in this case. Without the slightest disposition to relax in any degree this salutary rule, but because in part of the slight difference in which it comes before the court in this record, and in part because of the seriousness of the case, and in part because the precise question now presented has not been adjudicated by this court, it seems better to deal directly with the question which the appellant now raises. [1] Each of the exceptions upon which there is any contention presents one and practically the same point, namely, the admissibility of threats made by the defendant at various times before he shot the deceased. A witness, Davis, testified that on the day before the shooting the accused had said in a barroom not far distant from where the homicide took place, that "he was going to kill some of them Gd dn niggers," and two days earlier had heard the accused make use of the same expression. Another witness for the state. Mrs. Laig, testified that two weeks before Chaney was shot she heard the accused say: "He don't get justice at the station houses when he brought anybody up there; that the next one he caught on the car he was going to shoot, and take them either crippled or their bodies to the station house as evidence." STOCKBRIDGE, J. William H. Frick, a policeman for the Baltimore & Ohio Railroad, Charles W. Laig, a state's witness, and was indicted for the murder in the city of the husband of the preceding witness, testiBaltimore of Evers Chaney, a white youth. fied to having the same conversation with the He pleaded not guilty, and elected to be tried accused to which his wife had testified, and before the court in preference to a jury. The gave substantially the same expression as trial resulted in a verdict of not guilty of having been uttered by the accused. Miss Nellie Gibney, a state's witness, without fixing the date, testified to having heard the conversation in Mrs. Laig's house, and gave as the language of the accused substantially the same expression as that testified to by Mr. and Mrs. Laig. It was to the admissibility of these threats that the exceptions reserved by the appellant, and now insisted on, apply. The rule governing the admissibility of such evidence is stated in 21 Cyc. 922, as follows: "A threat to kill or injure some one not definitely designated is admissible in evidence where other facts adduced give individuation to it; but general threats not shown to have reference to the deceased cannot be proved." An hour after saying this the defendant went to the house of the deceased. "We think that this evidence was admissible. Being connected, as it was, with the declaration and acts of the accused at the house of the deceased, so soon afterwards, it tended to show animus on the part of the accused towards the deceased; and, further, the declaration of the accused tended to show an abandoned, reckless, and malicious spirit on the part of the accused. This conclusion is supported by Jordan v. State, 79 Ala. 9; Anderson v. State, 79 Ala. 5; Harrison v. State, 79 Ala. 29; Dixon v. State, 13 Fla. 636; State v. Grant, 79 Mo. 113 [49 Am. Rep. 218]; State v. Hymer, 15 Nev. 49; Benedict v. State, 14 Wis. 423." "Vague threats, not against any particular person, have often been admitted and are competent evidence. Rex v. Barbot, 18 How State Tr. 1251; Benedict v. State, 14 Wis. 423." In line with this case are the following cases. State v. Hoyt, 47 Conn. 539, 36 Am. For this statement the following cases are cited: Redd v. State, 68 Ala. 492; State v. Crabtree, 111 Mo. 136, 20 S. W. 7; Melton v. State, 47 Tex. Cr. R. 451, 83 S. W. 822. Rep. 89, in which the language used by the The author of the article in Cyc. then contin ues: "So also words, uttered under such circumstances as prima facie to import a threat, are admissible." accused was: "I don't know, but I shall be in Canada in a little less than a week; don't know but I shall kill some one in a week." This was used in a conversation relating to the defendant's father. The testimony was admissible. It rises to the character of a the father and his estate, the jury would have had the right to construe as aimed at the father. It showed most clearly the revengeful and murderous passions which were taking possession of the mind of the accused. In Hopkins v. Com., 50 Pa. 9, 88 Am. Dec. 518, it was held that: In this case the threat was a general one; it was not directed against a particular indi-threat, which, from the conversation about vidual, nor, unless the use of the term “niggers" can be so construed, was it a threat against a class; and, even if regarded as a threat against a class, it was not a class to which the defendant belonged. It must therefore be regarded in the light merely of a general threat, without any individualization. The cases in this country are not entirely harmonious as to the proper rule to be applied in such cases. The courts of Texas, Missouri, and Alabama have, in a number of instances, held such general threats to be inadmissible, but hold them as admissible if directed against an individual or a class. In the case of Benedict v. State, 14 Wis. In the case of Redd v. State, supra, while 423, the defendant had made use of the folthe threats attempted to be offered in evi-lowing expression: "I will take some man's dence were excluded by the court, because too general, the court, nevertheless, uses this language: "The force of the threat may affect its weight as evidence, while not rendering it inadmissible. Whatever, may be its force, whether absolute or conditional, whether it indicates a purpose only contemplated or fully matured, it is admissible in evidence because indicating the state of mind of the accused, and of the feelings he entertained or cherished towards the deceased." In State v. Crabtree, before cited, it appeared that the accused and the deceased had been on friendly terms up until the day of the homicide, and it was held error to have admitted general threats made by the defendant a considerable period before that time. A large number of cases upon this subject are collected in an extended note in 17 L. R. A. 654, and among the cases there cited is the case of the State v. Larkins, 5 Idaho, 200, 47 Pac. 945. In that case it appeared that three hours before the homicide the defendant said to a third party: "I would like to take you with me, but I have a dirty piece of business to do to-night." "Threats made by a prisoner, within an hour before the commission of the murder, that 'he dence of malice prepense, though they did not would kill somebody before 24 hours,' are eviexpressly refer to the deceased, and if he killed anybody in pursuance of such malice, it was murder in the first degree." life before next Sunday"-and, speaking of a knife, it "would probably be the death of some one before the week was out," that he "had made up his mind to kill a man," and that if the witnesses "should hear of the death of any person before the week was out, they need not be alarmed." These were all admitted over objection, and the ruling was sustained. And to the same general effect as the cases already referred to are the following: Whittaker v. Commonwealth, 17 S. W. 358, 13 Ky. Law Rep. 504; State v. King, 9 Mont. 445, 24 Pac. 265; Hodge v. State, 26 Fla. 11, 7 South. 593. In this state the case most nearly in point is Kernan v. State, 65 Md. 253, 4 Atl. 124, in which on the subject of general threats Judge Irving uses the following language: character for turbulence, and was not admissible "It cannot have been offered to show his for such purpose. A simple act of that kind would not prove that he had that character. But such an act, so soon followed by the killing of a man, did show a reckless and mischievous frame of mind at a period so near the killing as to be admissible, though the thing itself may not, possibly, be legitimately part of the And the principle upon which all of these cases rests is that laid down in Wills on Circumstantial Evidence, page 62, where the writer says: of estimates, a bill to enjoin the action of the board of estimates, in removing or interfering with the building at the urgent request of the government, heard after the beginning of its removal to another part of the park grounds to a control of the board of park commissioners, was foundation prepared so as to be still within the properly dismissed. [Ed. Note.-For other cases, see Injunction, Cent. Dig. §§ 142, 150; Dec. Dig. 74.] 2. INJUNCTION OF COURT. 1-GROUNDS-DISCRETION The right to an injunction is not ex debito justitiæ, and the application therefor is addressed to the sound conscience of the chancellor, acting upon all the circumstances of each particular case. "It is not uncommon with persons about to engage in crime to utter menaces, or to make obscure and mysterious allusions to purposes and intentions of revenge, or to boast to others, whose standard of moral conduct is the same as their own, of what they will do, or to give vent to expressions of revengeful purposes or of malignant satisfaction at the anticipated occurrence of some serious mischief. Such declarations or allusions are of great moment when clearly connected by independent evidence with some subsequent criminal action. The just effect of such language is to show the existence of the dis-3. position from which criminal actions proceed to render it less improbable that a person proved to have used it would commit the offense charged, and to explain the real motive and character of the action." [2] Additional objections were urged against the admissions of the threats testified to by Mr. and Mrs. Laig and Miss Gibney, but the remoteness or nearness of time as to threats and declarations, pertaining to an act subsequently committed, makes no difference as to the competency of the evidence; it goes only to the amount of weight to be attached to it. Keener v. State, 18 Ga. 194, 63 Am. Dec. 269; Cribbs v. State, 86 Ala. 613, 6 South. 109. In Pate v. State, 94 Ala. 14, 10 South. 665, the threats testified to had been made four months before the homicide was committed, in State v. Bradley, 64 Vt. 466, 24 Atl. 1053, the lapse of time had been from six to eight months, and in Peterson v. Toner, 80 Mich. 350, 45 N. W. 346, Territory v. Roberts, 9 Mont. 12, 22 Pac. 132, and Babcock v. People, 13 Colo. 515, 22 Pac. 817, the threats had been made three years before the assault out of which these cases arose, took place. In accordance with expressions of Judge Irving, already given, and the preponderance of opinion of the courts of this country, the threats in the present case were admissible, and the trial court committed no error in its rulings. Judgment affirmed. (128 Md. 140) [Ed. Note.-For other cases, see Injunction, Cent. Dig. § 1; Dec. Dig. 1.] 993(1) MUNICIPAL CORPORATIONS REMEDIES OF TAXPAYERS-INJUNCTION. An injunction to restrain the ultra vires or illegal acts of municipal corporations or official officers will not be granted, unless it appears that the taxpayer would be injured by the acts complained of. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 2158; Dec. Dig. 993(1).] 4. MUNICIPAL CORPORATIONS 993(1) REMEDIES OF TAXPAYERS-INJUNCTION. A bill by plaintiffs, constituting the majority of the board of park commissioners, also suing individually as residents and taxpayers, to enjoin the board of estimates and other city location or use of a building on grounds within officials from removing or interfering with the the control of the park board, which unless it had been removed would have been destroyed by the national government, from which it was bought, could not be maintained, as they could not possibly be injured by the expenditure of public money for the protection and conservation of public property. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 2158; Dec. Dig. 993(1).] 5. MUNICIPAL CORPORATIONS 721 (1) [Ed. Note.-For other cases, see Municipal WILLIAMS et al., Board of Park Com'rs, v. Corporations, Cent. Dig. § 1542; Dec. Dig. & 721(1).] MAYOR AND CITY COUNCIL OF BALTIMORE et al. (No. 26.) Appeal from Circuit Court No. 2 of Balti(Court of Appeals of Maryland. Feb. 10, 1916.) more City; Chas. W. Heuisler, Judge. 1. INJUNCTION 74-PUBLIC PROPERTY"To be officially reported." CONTROL BY BOARDS. Bill by George Weems Williams and othWhere the United States government grant-ers, constituting the Board of Park Commised the use of a tract to the mayor and city sioners, against the Mayor and City Council council of Baltimore, which was accepted by the city as a public park and placed in charge of of Baltimore and the Board of Estimates. the board of park commissioners, which out of Temporary injunction dissolved, and bill disits funds purchased a building on a part re missed, and defendants appeal. Affirmed. served by the government on condition of removArgued before BOYD, C. J., and BRISCOE, ing it from such reservation, and the location and use of the building was in dispute between BURKE, THOMAS, PATTISON, URNER, the board of park commissioners and the board | STOCKBRIDGE, and CONSTABLE, JJ. George Weems Williams, of Baltimore, for appellants. Edw. J. Colgan, Jr., of Baltimore, and S. S. Field, City Sol., of Baltimore, for appellees. government for the sum of $50 in September, 1914, to be used in connection with the park and paid for out of the park funds, but the title to and ownership of the building after its purchase were vested in the city. BURKE, J. This case grows out of a conAfter the building had been acquired by troversy between the board of park commis- the city the question arose as to the specific sioners and the board of estimates of Balti-purpose for which it should be used. At the more city, two of the boards of the municipal corporation, respecting the control and management of one of the public parks of the city. The plaintiffs constitute a majority of the board of park commissioners-four of the five members of that board-and were time of the acquisition of the building by the city, and for many years prior thereto, there were a number of boat clubs located at Ferry Bar. The ground upon which these clubs was located had been acquired by the Western Maryland Railroad for use as terminal facilities, and the clubs were desirous of securing better and more permanent locations. The ground on the south side of Ft. McHenry is admirably adapted for the location of boat clubs. It rises rapidly from the water, and the sloping hillsides afford opportunity for a large number of people to witness boating, rowing, and other water sports. It was accordingly proposed that the boat clubs be located at Ft. McHenry. It was thought regattas and other aquatic sports would popularize the park and furnish entertainment to great numbers of the people of Baltimore, and by attracting people from other states would advertise the city. This proposal was favorably received by the boat clubs and by the board of estimates, and was taken under consideration by the board of park commissioners. A committee was appointed, of which Mr. Williams, the president of the details of an agreement to be entered into park board, was a member, to arrange the between the boat clubs and the city under which they might remove and locate at Ft. committee the final draft of the agreement McHenry. After numerous meetings of the was prepared fixing the terms and conditions, a number of which being suggested by Mr. Williams, upon which the boat clubs might remove and locate at Ft. McHenry. Mr. Williams was personally favorable to the re authorized to file the bill in this case by resolution of the board. They also sue individually as residents and taxpayers of Baltimore city. The bill is filed against the mayor and city council of Baltimore and the board of estimates. In so far as it seeks any relief against the municipal corporation for the acts complained of, it is obvious that the bill cannot be maintained, for the simple reason that the corporation, as such, has done nothing to cause or bring about the situation complained of in the bill. The acts complained of were done by the board of estimates, and there is nothing to show that the corporation itself contributed to create the condition which gave rise to the suit. The bill and answer are quite full, but it is unnecessary to set out the respective contentions of the parties by quoting at any length from the pleadings, which suggest a number of interesting legal questions. But the real questions which must control the case lie within a narrow limit, and are, we think, free of difficulty. The controlling facts disclosed by the record may be briefly stated. Pursuant to an act of Congress approved by the President on May 26, 1914, and an ordinance of the mayor and city council of Baltimore passed in June, 1914, the use of a tract of land, comprising about 38 acres, situated on Locust Point, in Baltimore moval, and approved the terms of the procity, and known as Ft. McHenry, was grant-posed agreement embodied in the final draft; ed by the government of the United States to but he was at all times careful to have it the mayor and city council of Baltimore and understood what he did was not intended to accepted by the city as a public park. After bind the board of park commissioners. He its acceptance the property was placed in testified: the charge and custody of the board of park commissioners. A portion of the land of the military reservation at Ft. McHenry was reserved by the United States government by the act of Congress referred to for an immigration station which the government was about to construct at large expense. On the land reserved by the government as a site for the new immigration station there was located a substantial frame building, worth approximately $5,000, which had been used as a "canteen building" when Ft. McHenry was used for military purposes. To make room for the building of the immigration station it was necessary to tear down or remove this building. The building was pur * "My object in getting on that committee was my mind was not made up as to whether the boat club proposition was good or bad. I went on the committee, and I was very careful until I think I got to be a perfect bore on the subject that any suggestion I made was not intended to bind the board. "Mr. Colgan: What board are you referring to? "Witness: The park board. "(Witness continuing :) My idea was, and I think the idea of the committee was, to get the best proposition from the boat clubs that could place, it would be on something that was subbe gotten, so that, when the discussion took stantial and concrete, rather than have just a mass meeting of 10 or 15 gentlemen and nothing ready before us. Now, on the 3d of December, I think by December 2d, Mr. McCay, who was on the committee-the committee was, as I sentatives from the four boat clubs-sent me a report, and I sent it back with suggestions, and I told them that I concurred in it, but that I could not bind the board. Then around the last of January, 1915, the draft of the agreement was sent me, I distributed copies of it to the members of the board, and we had a number of meetings." It was contemplated that the agreement should be signed by the boat clubs, the mayor and city council of Baltimore, by the hand of Mr. Preston, mayor, and approved by the board of park commissioners and the board of estimates. It was executed by the boat clubs, but not by the mayor, nor was it approved by the board of park commissioners or board of estimates. The final draft of the agreement which it was proposed should be signed by each of the above-named parties is here inserted: "This agreement made this day of January, in the year nineteen hundred and fifteen, between the mayor and city council of Baltimore and the following boat clubs, all of which are incorporated, namely: Arundel Boat Club, Corinthian Yacht Club, Maryland Motorboat Club, and Ariel Rowing Club-witnesseth that: "Whereas, the said four clubs have for a number of years past had their respective clubhouses located at Ferry Bar, in the city of Baltimore, and were occupying the ground under leases for short terms; and for the use of the Corinthian Yacht Club, at a cost estimated not to exceed seven thousand dollars ($7,000.00). "(3) That the Maryland Motorboat Club's building be moved to the location shown on the accompanying blueprint, and be put in proper order, at a cost estimated not to exceed five thousand dollars ($5,000.00). "(4) That the Ariel Rowing Club's building be moved to the location shown on the accompanying blueprint, and fixed up, at an expense estimated not to exceed four thousand dollars ($4,000.00). "All of the above work, that is, moving the canteen building for the Corinthian Yacht Club, and moving the buildings of the Arundel Boat Club, Maryland Motorboat Club, and the Ariel Rowing Club, building proper foundations for all of said buildings, and fixing them up in good order for the use of the clubs, and to provide suitable landings, to be done by contracts awarded by the board of awards, in the usual way of city contracts, after public advertisement, upon specifications prepared by the city engineer and approved by the board of park commissioners, said specifications to be so prepared as to call for bids separately: "(1) Upon moving and placing on suitable foundations and wharfs provided by contractors each of the buildings specified above. "(2) Upon making the proper alterations and repairs to each of said buildings. "(3) Also upon all of said work, as a whole, with the proviso in the specifications giving to the board of awards the power to award the whole work or any portion or portions thereof to any bidder, and also the right to reject any and all bids; the plans and specifications for said buildings, repairs, and improvements to be prepared by C. R. Le Land, architect, heretofore selected by the board of awards, with the approval of the said boat clubs. "It is further understood and agreed that, if, after said bids are all in, it should appear from said bids and other incidental expenses, including the architect's commissions, that the total expenditure in connection with the moving and relocating of said boat club houses would exceed twenty-five thousand dollars ($25,000.00), then the mayor and city council of Baltimore shall have the right to terminate this contract, and thereafter be under no obligation whatsoever in the matter. "Whereas, the mayor and city council of Baltimore has recently secured from the United States of America the authority to use and improve Ft. McHenry as a public park, with the riparian rights attached thereto, and the said mayor and city council, through its ordinance of estimates for the year 1915, has made appropriations for the improvement of Ft. McHenry and the water front on the south side thereof, known as the Approach to Spring Gardens, and it is contemplated that the city shall build a breakwater extending from the point of Ft. McHenry into the Middle branch of the Patapsco river, and thus furnish, on the south side of Ft. McHenry and west of said breakwater, a very desirable and suitable place for the location of boat club houses, and the anchorage of pleasure boats of various kinds, and for the purpose of adding to the attraction of said park and making said park a popular water-front park, and to encourage the use of said park for aquatic sports, the said mayor and city council of Baltimore has invited the said four clubs to rent the portion of the space thus to be provided by the improvements above mentioned, shown on attached drawing, and the said "Each of said clubs, except the Corinthian four clubs, desiring to do all in their power to Yacht Club, will pay to the mayor and city make said public park a success, and to show council of Baltimore the following annual their appreciation of the efforts of said mayor amounts, payable in quarterly installments in and city council to give them a desirable loca- each year, accounting, as to each club, from the tion therein, have agreed to rent the spaces date when the building to be occupied by each thus to be provided, and which have been al- club and the improvements thereof hereby conlotted to each of them, and by reason of the templated shall be completed, the same being large cost in removing their buildings and mak- calculated to cover rental for the spaces ocing the necessary repairs thereto occasioned by cupied, interest on the amounts advanced by the said removal, said clubs, and each of them, have city, and a sinking fund to pay for the advancrequested the mayor and city council of Balti-es thus made; that is to say, each of said clubs more to assist them financially, and the mayor and city council of Baltimore has agreed to do so, upon the following terms and stipulations hereinafter set forth: "(1) That the Arundel Boat Club's building be moved to the location shown on the accompanying blueprint, and fixed up, at an expense estimated not to exceed five thousand dollars ($5,000.00). "(2) That the old canteen building now on Ft. McHenry be moved to the location shown on the accompanying blueprint, and remodeled "In the event, however, that the city awards the contracts for said work, then the payment for all of said work will be made in the first instance by the mayor and city council of Baltimore out of the appropriation of fifty thousand dollars ($50,000.00) made to the board of park commissioners for improvements at Ft. MeHenry in the ordinance of estimates for 1915. shall pay to the mayor and city council of Baltimore 5 per cent. annually as interest and to cover the use of the space occupied, and 7 per cent. annually as a sinking fund to reimburse the city for its outlay, or a total of 12 per cent. annually, to be paid for twelve years by each club, in quarterly installments, accounting from the respective dates when the respective club buildings and improvements are completed, said 12 per cent. to be calculated upon the actual amount which may be expended by the mayor and city council of Baltimore, as above provid |
