BEFORE HAWKINS, PRATHER AND SULLIVAN
PRATHER, JUSTICE, FOR THE COURT:
This criminal appeal is from the Circuit Court of Newton County wherein Hazel Fanning (appellant) was convicted of violating Miss. Code Ann.97-13-19 (1972) by feloniously reporting a false account of votes in the 1983 Democratic Primary Election of Newton County. Feeling aggrieved, the appellant assigns the following as error on appeal:
(1) The circuit court erred in overruling appellant's demurrer to the indictment for the reason that 93-13-19 (1972), does not apply to political party primary elections.
(2) The circuit court erred in overruling appellant's motion to require the state to proceed as a misdemeanor, and in refusing jury instruction No. D-15 offered by the appellant, for the reason that the acts alleged in the indictment, if proven, constitute a misdemeanor and a violation of 25-5-161 (1972), and not a violation of 97-13-19 (1972).
(3) The circuit court erred in allowing, over objection of appellant, the statement of appellant's husband, to be introduced against her.
(4) The sentence of the court was excessive, and the court exceeded its authority to require appellant to pay the cost of the special election necessitated by the vote.
(5) The verdict of the jury was contrary to the overwhelming weight of the credible evidence.
Mrs. Hazel Fanning, a 72 year old retired school teacher from Hickory, Mississippi served as an election officer of the Hickory precinct "A-F" voting box in the Democratic
Primary runoff election held on August 23, 1983. After the polls had closed, Ms. Fanning and several other officials at the A-F voting box began counting and tallying the votes. Ms. Fanning was the only person to call out the names at the A-F box. As she called out the names, two other workers made appropriate entries on the tally sheets distributed as part of the election kit. During tabulation of these votes, several poll workers offered to help Ms. Fanning, but she declined the assistance. The tally sheets turned into the Newton County Circuit Clerk Office in the race for District 5 Supervisor revealed that Robert Stamper received 235 votes and W. E. Edwards, the incumbent, received 16 votes in the Hickory A-F voting box.
In recounts conducted by the Democratic Executive Committee following the election, Edwards received 134 votes while Stamper received 118 votes. The recount resulted in 804 to 804 tie.
In March, 1984 Ms. Fanning was indicted, found guilty, and sentenced to serve one year in the state penitentiary. However, the one year was suspended, and she was placed on probation for two years, conditioned upon her serving thirty days in the county jail, performing sixty days of community service, paying the court costs of $651.40 and paying the costs of the special election of $3,144.41.
Did the circuit court err in overruling appellant's demurrer to the indictment for the reason that 97-13-19, Miss. Code of 1972, Ann., does not apply to Democratic Primary runoffs?
Appellant was indicted in March of 1984 upon the following charge:
. . . While acting within her official capacity as election officer of the Hickory "A-F" voting box in the August 23, 1983 Democratic Primary Election of Newton County, Mississippi did willfully, unlawfully, feloniously, and designedly report a false account of votes received by W. E. Edwards and a false account of votes received by Robert Stamper in the District No. 5 supervisor's race in said primary election, to the tally keepers of said Hickory "A-F voting box, against the peace and dignity of the State of Mississippi.
Prior to trial, defense counsel demurred to this
indictment based upon Miss. Code Ann. 97-13-19 (1972) which provides as follows:
If any manager, clerk or any other officer whatever, assisting or engaged in conducting any election, or charged with any duty in reference to any election, shall designedly omit to do any official act required by law, or designedly do any illegal act in relation to any general or special election, by which act or omission of votes taken at any such election in any district shall be lost, or the electors thereof shall be deprived of their suffrage at such election, or shall designedly do any act which shall render such election void, or shall be guilty of any corrupt conduct or partiality in ...