The Austin weekly statesman. (Austin, Tex.) 1883-1898, 1893-06-29
be departed from under exceptional

be departed from under exceptional
circumstances only.
In the case before us it is by no
means certain that this testimony did
not have potent effect upon the
amount of damages awarded for ply.
steal and mental suffering. The re-.
mittur did not necessarily destroy the
effect of admitting the improper testi-
mony and should not have been al
lowed. 1t was al0o complained that
the attorneys for plaintigs were al
lowed to reaG opinions from cases de-
clded by the supreme court unfolding
judgments for damages in large sums
1t was the duty of counsel in his adj
dress to thejury to confine himself to
the testimony bearing upon the issues
of fact presented for their determine
ton. What the supreme court had
do in similar cases was wholly for
eign to the discussion. 1t did not re-
lieve it OF its Objectionable tendency
to say it was part of the argument.
We think, allowing these remarks
was error. For the errors pointed out
the Judgment is reversed and the
cause remanded. Opinion by Gaines,
A. j.
Annie E. Daniel vs.. j. G. Hutche-
son. This case comes to this court
UPON certificate of dissent from the
court of civil appeals for the First
district. The lot in controversy was
sold under order of ths county court
of Harris county upon application of
the administl atriX of the estate of r.
w. Bowling, on the 5th day of April
1870, and the sale was confirmed by
the county court. The judge of the
court making the orders was appoint
ed by the military commander Of the
department including Texas. The
right OF plaintiffs depend upon wheth-
er or not at the time the orders were
made the county court had jurisdic-
ton of administrations of the estates
of deceased persons, or power to make
the orders. The constitution of 1869
was adopted at an election held on the
30th of November 1869. The legisla-
ture ratified the amendments to the
constitution of the United States on
Feb. %, 1870. The governor elect
qualified April %, 1870 On the 30th
of March 1870 the act was approved
admitting the state to representation
in congress but military rule Yves not
relinquished until the 10Th day of
April following The general order pro-
mulgated that day declaring that the
state had resumed their practical re-
lations to the general government was
recognized ny the legislature which
met April 26, 1870. The military gov
ernment existed until April Is, 1870.
At that period of time, at which all
the acts TRANSFERRED on which the
rights of the parties in this case de-
pend, the court had jurisdiction to
order and confirm the sale of the lot
in controversy. The Judgment of the
court of civil appeals will be reversed
and that of the district court affirmed
Opinion by Stayton, G. ].
McGehee Irrigation Ditch Company
VS.. hudson. Motion for rehearing.
We see no reason for doubt. The cor.
rectness of the views expressed by
the court of civil appeals in reference
to the validity of the statute in 80 far
as considered by that court, nor do we
think that the act is special or local
within the meaning of the constitu-
ton. 1t is urged that the act only
provides for compensation for land
taken, and not for the water taken off.
Appellees had the right to have the
water flow in its accustomed channel
through their land. and when it was
diverted compensation should. be
made for it as we'll as for
land on which the ditch was con-
structed. Whether the taking is nec-
essary, and for public use, must be
determined by the general rules of
law applicable to the case, before the
property can De taken. If plaintiffs
desired q perpetual injunction it is
clear that it was incumbent on them
to allege and prove the facts necessary
to entitle them to such relief The
motion for rehearing will be over
ruled. Opinion by Stayton, G. j.
COURT OF CRIMINAL APPEALS.
The court of criminal appeals
decided the following cases June %:
b. r. Fretwoll VS., The State, from,
Harris. Theft. There is no bill of
exceptions in the record, no error ap.
pears and the judgment is affirmed.
Opinion by Davidson, J.
B. R, Fretwoll vs.. The State, from
Harris. Forgery. The statement of
facts cannot be considered because not
filed in time. The charge is correct
and the judgment is affirmed.
Opinion by Davidson, j.
B. r. Fretwoll VS.. The State, from
Harris. Uttering forged instrument.
The statement of facts is defective as
in the case just above. No bill of ex-
ceptions was reserved. The Judgment
is affirmed. Opinion by Davidson, J.
Will Douglass VS.. The State, from
Tarrant, burglary. There is no state
ment of facts nor bill of exceptions.
The proceedings appear regular and
the judgment is ATTAINED. Opinion
by Davidson, j. The four other cases
against the same appellant, three for
burglary and one for theft, are all at.
firmed on the same grounds.