State v. Harkness

Mississippi Supreme Court

State v. Harkness

53 So. 413, 97 Miss. 821

DecidedOctober 15, 1910

StatusPublished

This text of 53 So. 413 (State v. Harkness) is published on Counsel Stack Legal Research, covering Mississippi Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State v. Harkness, 53 So. 413, 97 Miss. 821 (Mich. 1910).

Pincite

Opinion

Smith, T.,

delivered the opinion of the court.

This is an appeal by the state from a judgment in the court: [823]*823below sustaining a demurrer to the amended affidavit. The offense with which appellee was sought to be charged wasi that of publishing and circulating a placard or poster having reference to one of the candidates in a municipal primary election, without same having upon its face the name of the author thereof, in violation of Code 1906, § 3728. The case was before this court once before, and the judgment then appealed from was reversed because the affidavit did not allege that a primary election was in fact held, and that same was “lawfully called and held by the properly constituted authorities.” 95 Miss. 506, 48 South. 294. Upon the return of the case to the court below, the affidavit was amended, and, as amended, alleged “that on or about the 7th day'of July, A. D. 1908, there was lawfully held in the city of Biloxi, Harrison county, Mississippi, by the lawfully and properly constituted authorities for the holding of municipal elections in said city of Biloxi, a municipal primary election for the nomination of municipal officers in and for said city of Biloxi which said municipal primary election at some time previous thereto in said city of Biloxi had been lawfully and properly called, by the municipal executive committee for said city of Biloxi,” etc. To' this amended affidavit a demurrer was filed, with the result above set out.

Section 3726 of the Code, as the same stood prior the amendment thereof by the legislature of 1910- (Laws 1910, ch. 209)-, and at the time this prosecution was begun, provides: “Nominations for all municipal officers which are elective shall be made at' a primary election to be held at a time to be fixed by the municipal executive committee,” etc. This section is a part of the primary election chapter of the Code. The whole scheme of this chapter is to make compulsory, by means of a primary election, the nomination of all candidates for office made by a political party; each party holding its own election. Its opening section, No. 3697, provides: “All nominations for state, district, county and county district officers, made by the different parties of this state, shall [824]*824hereafter be made by primary election,” etc. Every primary election held under the provision of this chapter must, of necessity, be a party primary, and the affidavit should have so charged, designating such party by name, in order to identify the particular primary election with reference to which it was intended to charge the commission of the offense; and, in order that it might appear that such primary election was “lawfully called and held by the properly constituted authorities,” the affidavit should have alleged that it was called and held by the municipal party executive committee.

The demurrer to the 'indictment was therefore properly sustained, and the judgment of the court below is affirmed.

Affirmed.

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Smith, T.,

delivered the opinion of the court.

This is an appeal by the state from a judgment in the court: [823]*823below sustaining a demurrer to the amended affidavit. The offense with which appellee was sought to be charged wasi that of publishing and circulating a placard or poster having reference to one of the candidates in a municipal primary election, without same having upon its face the name of the author thereof, in violation of Code 1906, § 3728. The case was before this court once before, and the judgment then appealed from was reversed because the affidavit did not allege that a primary election was in fact held, and that same was “lawfully called and held by the properly constituted authorities.” 95 Miss. 506, 48 South. 294. Upon the return of the case to the court below, the affidavit was amended, and, as amended, alleged “that on or about the 7th day'of July, A. D. 1908, there was lawfully held in the city of Biloxi, Harrison county, Mississippi, by the lawfully and properly constituted authorities for the holding of municipal elections in said city of Biloxi, a municipal primary election for the nomination of municipal officers in and for said city of Biloxi which said municipal primary election at some time previous thereto in said city of Biloxi had been lawfully and properly called, by the municipal executive committee for said city of Biloxi,” etc. To' this amended affidavit a demurrer was filed, with the result above set out.

Section 3726 of the Code, as the same stood prior the amendment thereof by the legislature of 1910- (Laws 1910, ch. 209)-, and at the time this prosecution was begun, provides: “Nominations for all municipal officers which are elective shall be made at' a primary election to be held at a time to be fixed by the municipal executive committee,” etc. This section is a part of the primary election chapter of the Code. The whole scheme of this chapter is to make compulsory, by means of a primary election, the nomination of all candidates for office made by a political party; each party holding its own election. Its opening section, No. 3697, provides: “All nominations for state, district, county and county district officers, made by the different parties of this state, shall [824]*824hereafter be made by primary election,” etc. Every primary election held under the provision of this chapter must, of necessity, be a party primary, and the affidavit should have so charged, designating such party by name, in order to identify the particular primary election with reference to which it was intended to charge the commission of the offense; and, in order that it might appear that such primary election was “lawfully called and held by the properly constituted authorities,” the affidavit should have alleged that it was called and held by the municipal party executive committee.

The demurrer to the 'indictment was therefore properly sustained, and the judgment of the court below is affirmed.

Affirmed.

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Bluebook (online)

53 So. 413, 97 Miss. 821, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-harkness-miss-1910.

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