The Austin weekly statesman. (Austin, Tex.) 1883-1898, 1883-05-24

Supreme Court.
Business was disposed of in this
court yesterday as follows:
Wolf VS.. state; from Falls county.
Case tried by the court without
jury. County judges statement was:
From the evidence the court found
defendant guilty, concluding that he
took the corn in question to pay him
self for what he considered the prose-
cutting witness owned him, without
his consent and in his, absence"
Held, that under this finding defend
ant, however liable he might be in
trespass, is not guilty of theft. A
fraudulent intent at the time of the
taking is the essential ingredient OF
theft. Mullins VS.. state, 9th Texas;
johnson VS.. state, l Texas ct. app.
Judgment reversed and cause re-
manded.-White, p. j.
Maddox VS.. state; from Milan
county.-Defendan was convicted
under a charge of "fr audulent taking
and stealing of horse from the pos
session of John Dennis without his
consent, with intent to deprive the said
Dennis of the value thereof, and with
intent to appropriate same to his own
use and benefit" Held, that an in
dictment which fails to allege owner
ship in direct terms, or that the
owner is unknown, is fatally defec-
tive. Garner VS.. state, and thirty-siX
Texas and other authorities cited.
Judgment reversed and prosecution
dismissed. Wilson, j.
Texas Trunk railway company VS..
Thomas j. Elan; from Dallas county
Suit for $1,000 damages, alleged to
have been sustained from careless and
improper construction of railroad bed,
whereby natural channels for passage
of waite from the land in question
were INSTRUCTED, damaging plaintiff,
Elan, $500; and causing further con-
sequent damage OF $500 to ditch and
rendering the land useful for cpltlva-
ton. Demurrer and exceptions were
overruled and verdict and Judgment
were rendered for $1,000 for appellee.
On motion for new trial appellee re-
mitted $3.50. of his Judgment and
thereupon the'co oVerruled motion
for new trial and gave judgment for
SEQ, from which appellant appealed.
Only two of the numerous assign
mentS in error are insisted on by APP
pellants. AS to one of these alleging
error in the Judges charge, as to the
rule for the measure of damages be-
ing the difference in the original and
changed values of the land, the appel
lant's brief, as the court complains,
denies that this is the measure of
damages in such cases as settled by
the supreme court, but cites no cases
for authority which attorneys briefs
should cite for information and con-
venience OF the court. After diligent
search the court found only Ole case
where the question is touched, even
incidentally-that OF III. & I. c. rail
road company VS.. Scale ct al, dt cided
by commissions of appeals, Austin
term, 1883, in which Judge Walker,
delivering the opinion of the court,
says: "The rule of damages, as it re-
spects real estate, is the difference
between the value of the premises be-
fore the injury, and the value imme
dlately after the injury" Held, That
the charge was erroneous in fixing
the time for ascertaining the value of
the land from any time before the
injury to the time of trial, instead of
from Immediately before the injury
to Immediately after the injury, is
complete; and that this value must
he the market value of the land at
those times, not what it may be
worth to the plaintiff, but what it
would sell for on the market. There
are well established exceptions to the
rule, but this case does not come
within any of the exceptions.
One of appellants special exceptions
overruled was that appellee's petition
did not allege any natural channels
for water through plaintiffs land, nor
that there was any water running
through said land. Held that sucn
allegation as that there was natural
channel or channels for the flow of
water over the lands was necessary;
and that In the case of the obstruc-
ton Of mere surface water in its flow