BEFORE HAWKINS, P.J., DAN LEE AND ANDERSON, JJ.
DAN LEE, JUSTICE, FOR THE COURT:
This appeal is taken from the Circuit Court of Madison County wherein Apprilla Van Buren was convicted of vote fraud under Miss. Code Ann. 23-9-703 (Supp. 1985). She
was sentenced to serve 2 years and 6 months with the Mississippi Department of Corrections. The execution was stayed conditioned on compliance with a probation order requiring her to: perform community work one day a week for 90 weeks; pay court costs and statutory fees and make restitution to Madison County in the amount of $500.00 for her court-appointed attorney; and, be placed on supervised probation for 5 years. Her conviction followed a five-count indictment, an initial trial in which four of the counts were dismissed and a mistrial declared on the second count. Van Buren was subsequently retried on this lone count of vote fraud. She appeals assigning the following errors:
I. The verdict of the jury was contrary to the weight of the evidence and should have necessitated a new trial.
II. A criminal defendant indicted for aiding and abetting another should not be convicted where there is no proof of criminal behavior on the part of the principal named in the indictment.
III. The trial court erred in failing to grant defendant's Instruction D-2, that the testimony of an accomplice should be viewed with great caution.
IV. The trial court erred in refusing defendant's Instruction D-3 setting forth the burden of proof as to the guilt of the principal.
Apprilla Van Buren was indicted in mid-December, 1983 on five counts of vote fraud. The indictment reads that Van Buren, on or about October 4, 1983:
[D]id willfully, unlawfully and feloniously aid, abet, assist, encourage, help and cause Octavia McMorris, who was then and there a person voting an absentee ballot, to violate the following provisions of law pertaining to absentee voting to-wit:
1. Make false affidavit for an application for an absent elector's ballot by stating such applicant or absentee
voter to be physically unable to vote at the polls when in truth and in fact such was not true; and,
2. Make a false affidavit for an application for an absent elector's ballot by purporting to sign such affidavit in the presence of a Notary Public, when in truth and in fact such was not true; and,
3. Make a false affidavit on the official ballot envelope that same was signed and sealed before a Notary Public when in truth and in fact neither was the case; and,
4. Vote his or her ballot in the presence of and within sight of some other person, namely the said Apprilla Van Buren; and,
5. Suggesting that such absentee voter voter for a particular candidate or candidates as the ballot was then being marked and did thereby illegally influence the vote of such absentee voter.
against the peace and dignity of the State of Mississippi.
At the first trial on this indictment, the trial court directed a verdict in favor of Ms. Van Buren on counts 1, 3, 4 and 5 but allowed the second count charged to go to the jury. The jury could not render a verdict, however, and a mistrial was declared. A second trial was held September 26, 1984 on the second count only of aiding, abetting, assisting, encouraging, helping and causing Octavia McMorris to make a false affidavit for an application for absentee ballot. The state called only two witnesses.
The first witness was J. D. Rasberry, the Madison County Circuit Clerk. He testified that defendant Apprilla Van Buren was a candidate for county tax assessor/collector in the November 8, 1983 general election. He received from Octavia McMorris, a registered voter, (1) a request for an absentee ballot application, (2) the completed application and (3) the absentee ballot for the general election. Ms. McMorris' application and ballot were among a group of
absentee banots notarized by Mildred Branch which were challenged and ultimately not counted in the general election. Mildred Branch was a notary public. By statute a notarized application for absentee ballot must be received before an absentee ballot is issued, Rasberry testified, and on the basis of the facial validity of Octavia McMorris' affidavit a ballot was issued and returned. Rasberry stated that applications are available to anyone and frequently candidates for office have handed them out. Rasberry further stated that instructions for completing the official ballot are mailed with the ballot, but no instructions accompany the applications.
The second witness for the state was Octavia McMorris. She is a Canton resident who was age 72 at trial and a registered voter. Her testimony was confusing at points. The court during the trial gave the state some leeway in the use of leading questions on direct because "of the fact that this is an elderly lady who does have some difficulty in her testimony."
She testified she voted by absentee ballot in the 1983 general election because she could not get to the polls. She identified State's Exhibit #2, the application for an absentee ballot, as the paper the defendant, Ms. Van Buren, brought to her home. This was admitted into evidence and made part of the record. It has a blank for the name of the voter at top, and blanks at the bottom for the voter's signature, the signature of a notary public and for the voter's address and date of the election for which the ballot is to be used. All of these blanks are filled in. The name of Mildred Branch appears in the blank for the notary public. The application is dated October 4, 1983. Ms. McMorris testified that when she signed the application, there was no other writing on it. Mildred Branch's name was not on the application when she signed it. She gave the following responses to questions from the prosecution concerning who was present when she signed the application:
Q. Is there any doubt in your mind that this is the application for absent ballot that you filled out last year you say in front of Apprilla Van Buren?
BY MR. CONNER: Your Honor, we would object. That is not only leading but the witness never testified that she signed it ...