is proof tending to show that Mathews, who lived near the defendant and on the same farm, hauled some seed cotton to the gin and market on Saturday. The defendant was a witness in his own behalf, and denied any knowledge of or participation in the theft.

For the state the court granted the general instruction that, if the jury should believe from the evidence beyond a reasonable doubt that the defendant took, stole, and carried away the cotton in question, they should find the defendant guilty as charged, and likewise an instruction that the jury do not have to "know" that the defendant is guilty in order to convict him, but it is sufficient if they "only believe from the evidence in the case beyond a reasonable doubt that he is guilty."

For the defendant there were several instructions upon reasonable doubt and the presumption of innocence, and likewise several instructions making plain to the jury that before they could convict the defendant upon circumstantial evidence they must believe him guilty to the actual exclusion of every other reasonable hypothesis.

The two instructions for the state are assigned for error upon the theory and argument that the jury should have been warned in the state's instructions to apply the circumstantial evidence with caution and require the case to be proved not only beyond every reasonable doubt, but to the actual exclusion of every other reasonable hypothesis. The record further discloses that the constable and deputy sheriff who arrested the defendant was permitted over the defendant's objections to state the following circumstances: That he went to the defendant's home about 9 or 10 o'clock one Saturday morning and placed the defendant under arrest; that at the time the defendant stated that he had not eaten breakfast and there was apparently some delay in leaving the house on that account; that the officer

Opinion of the court.

[122 Miss.

suggested to the defendant's wife that he desired to search the house on account of cotton stealing; that the wife told him all right, and proceeded to pull up a mattress and exhibit a very large and long cotton sack, and thereupon stated to the officer that this was the cotton sack which her husband used in bringing or conveying cotton from the field to the house. Appellant was then carried to jail and incarcerated. On Sunday morning, while the defendant was in jail, the officer returned to the premises where the cotton was grown and made an original investigation about the tracks, and also applied at the defendant's house for the cotton sack, and on doing so found that the sack had been cut up into strips. There was no showing of any communications between husband and wife since the arrest, and the testimony negatives any participation by the defendant in the destructon of the cotton sack. In detailing the conversation and statements of the wife, when the defndant was first placed under arrest, the officer does not make it positive that the defendant actually heard what the wife had to say or that he was called upon either to affirm or deny her statement that the long cotton sack was the one employed in transporting cotton from the field to the cotton pen, and that this method of transportation by mule back was used instead of one by wagon or other conveyance.

The court on the trial limited the time of counsel's argument to forty minutes on the side. The defendant was represented by two attorneys, and this gave each of defendant's attorneys twenty minutes to argue a felony case based on circumstantial evidence. This action of the court is assigned as error. It is also contended that the verdict is contrary to the law and the evidence, and the proof insufficient to sustain the verdict.

While the testimony, if believed, is sufficient to support a verdict of guilty, the record nevertheless pre

sents a close case on the facts. It is therefore not only of great concern to the accused in this case, but of great importance to an absolutely fair administration of justice, that no error should be committed by the trial court in the exclusion or admission of testimony, or in stating the applicable law of the case to the jury.

We have reached a conclusion in the case, but not without some difficulty. We shall limit discussion to and decide but one point. Inasmuch as the state's case is made and upheld by circumstantial evidence, it is no stronger than the weakest link in the chain of testimony. It is, as suggested, very important that the minds of the jurors should not be unduly influenced by incompetent testimony. It is not clear from the testimony that appellant heard the full conversation between the officer and appellant's wife at the time the house was first searched and the defendant arrested. It does not appear why or upon what charge or under what authority the arrest was made. Inferentially it appears that the arrest was based upon some other charge or at least upon a mere suspicion of the officer that appellant had something to do wth this cotton stealing. It affirmatively appears that appellant had not at that time been charged with the crime and a full investigation even by the officer had not then been made.

Under these circumstances the officer was permitted to testify that the wife exhibited an extra large cotton sack and admitted that this particular sack was used by them in transporting cotton from the field. He was also permitted to testify that while the defendant was in jail at Holly Springs he went back to the home in search of this sack and found that it had been destroyed. Certainly the defendant had not destroyed it, and inferentially it appears that the wife destroyed the sack and upon the theory that it furnished evidence of the defendant's guilt. Naturally it would be taken b the jury as an overt act by the wife in recognition of

the defendant's guilt. Now, it must be conceded that the state could not place the wife upon the witness stand, and thereby prove by her directly what was indirectly shown through the officer. This incompetent evidence as a whole operated as a confession by the wife of her husband's guilt. On a close case of the kind under review it very probably had influence with the jury and operated to the defendant's prejudice. We think it is sufficiently damaging to upset the verdict and justify a new trial.

We shall neither discuss nor decide the other points argued.

Reversed and remanded.

BOARD OF SUP'RS OF HARRISON COUNTY v. GULLY.

[In Banc. No. 21049.]

1. COUNTIES. Order for contract for abstracts of title need not recite opinion of board that necessity exists.

Under section 320, Code of 1906 (section 3693, Hemingway's Code), providing that, "when in its opinion the interest of the county would be subserved thereby," the board may procure by purchase of or have made an abstract of titles to land in the county, it is not jurisdictional to recite in the order the opinion of the board that such necessity exists. Jurisdictional facts must be recited, but a mental state or an opinion need not be recited.

2. COUNTIES. Plans and specification need not be filed under contract for making county abstract of title.

Under section 320, Code of 1906 (section 3693, Hemingway's Code), authorizing the board of supervisors to purchase or have made an abstract of title to lands in the county, it is not necessary to file with the clerk plans and specifications under section 361, Code of 1906 (section 3734, Hemingway's Code); the making of abstracts involving personal skill and confidence does not come within the purview of that section.

APPEAL from chancery court of Harrison county.
HON. W. M. DENNY, JR., Chancellor.

Suit by George S. Gully against the Board of Supervisors of Harrison County for an injunction. From a decree overruling defendant's demurrer, it appeals.

Mize & Mize, for appellant.

Section 320, Code of 1906, is as follows: "The board of supervisors of any county may, when in its opinion the interest of the county would be subserved thereby, procure, by purchase or have made, a complete abstract of title to land in the county, and may provide all books necessary for the purpose, and the costs thereof shall be paid out of the county treasury. Such abstracts, when purchased or made, shall be kept in the office of the chancery clerk as a public record."

The board of supervisors, in pursuance of this statute, passed an order for the purchase of an abstract of titles of land in the county, but omitted to state in said order that, in its opinion, the interests of the county would be subserved thereby. In all other respects there is no objection to the order.

Objection is made by appellee to the order because the board failed to express in the order that, in its opinion, the interests of the county would be subserved by the purchase of such abstract; that this is jurisdictional and makes the order null and void, as all jurisdictional facts must appear of record. However, we say that this language applies to a mental operation of the board, which need not be expressed in the order. In other words, jurisdictional facts mean affirmative facts. Whenever a statute lays down a number of things that must be done before the board of supervisors can pass an order, the order must recite that all the things required to be done by the statute were done; but it is not necess