No. 79-12 

IN THE SUPREME: COURT OF THE STATE OF MONTANA 

THE DEPARTMENT OF REVENUE 

OF THE STATE OF MONTANA, 

Plaintiff and Appellant, 

WALDEMAR W. and EVEDINE 

L. LANE, 

Defendant and Respondent. 

Appeal from: District Court of the First Judicial District, 

In and For the County of Lewis and Clark 

Honorable Peter G. Meloy, Judge presiding. 

Counsel of Record: 

For Appellant: 

R. Bruce McGinnis, Dept. of Revenue, Helena, Montana 

For Respondent: 

Waldemar W. Lane and Evidine L. Lana, Pro Se, 

Plentywood, Montana 

Filed: 

Submitted on briefs: January 25, 1980 

Decided: ~PR g a 1980 
Mr. Justice Gene B. Daly delivered the Opinion of the Court. 

This is an appeal by the State of Montana from an order 

of the District Court of the First Judicial District, in and 

for the County of Lewis and Clark, granting a change of 

venue in a criminal prosecution. 

Defendants in this action were charged with the offense 

of intentionally failing to make or render a properly completed Montana Individual Income Tax Return. Defendants 

initially appeared on August 16, 1979, and their arraignment 

was set for August 23, 1979. On that day, defendants failed 

to appear. The District Court contacted defendants by 

telephone and accepted an oral motion for a change of venue. 

Pursuant to the court's order, the State filed its brief in 

opposition to this motion on September 11, 1979. The motion 

was granted on September 26, 1979, and the State brings this 

appeal. 

The State pror2erly filed its brief on appeal with this 

Court on November 9, 1979. Respondents failed to file a 

brief within the appropriate time as set by Rule 26(a), 

M.R.App.Civ.P., and the State filed a motion with this Court 

asking that the case be decided on its brief. We granted 

respondents an additional ten days to file their brief. 

Respondents again failed to file a brief, and on January 25, 

1980, this Court issued an order submitting this case for 

decision on appellant's brief. 

The sole issue presented for review is whether the 

District Court erred in changing the venue of this action 

from Lewis and Clark County to Sheridan County. 

Section 46-3-101(1), MCA, provides: 

"In all criminal prosecutions the trial shall be 

in the county where the offensf? was committed 

unless otherwise provided by law." 
Section 46-3-102, MCA, provides: 

"Where two or more acts are requisite to the commission of any offense, the trial may be in any 

county in which any of such acts occur." 

The commission comment to section 46-3-102, MCA, reads: 

"This provision allows the trial to take place 

in the most convenient county where an element 

of the offense occurred. It does not matter if 

the final consummation of the offense occurred 

in another county. The only elements of the 

crime which are of interest are those acts constituting or requisite to the consummation of 

the offense; the trial of the case may be held 

in any county in which such acts occur." 

The State contends that under section 15-30-144, MCA, 

income tax returns are required to be filed with the Department of Revenue, which is further required to be located at 

Helena, Montana, by section 2-15-112, MCA. Consequently, it 

argues the offense of failing to file a return or to provide 

information as set out in section 15-30-321, MCA, is committed in Lewis and Clark County, and therefore, venue 

properly lies in Lewis and Clark County under section 46-3- 

101, MCA. 

The District Court concluded: 

"To constitute a violation of the income tax 

law, the individual so charged must have had 

gross income in excess of $750.00 per year. 

Thus the act of earning more than $750.00 per 

year becomes an element of the offense and since 

the defendants' income was earned in Sheridan 

Count-y, Section 46-3-102, MCA is applicable." 

The court cited sections 25-2-201 and 25-2-108, MCA (dealing 

with changing the place of civil trial when convenience of 

witnesses and ends of justice would be promoted by the 

change and preference as to defendants' place of residence 

for civil trials, respectively), and the commission comment 

to section 46-3-102, MCA, and held: 

'I. . . it is the opinion of this Court that 

the ends of justice are promoted by having the 

trial in the county of the residence of the 
defendants where the jury would be from their 

immediate peers and would provide a trial in a 

place to obviate the necessity of the defendants 

traveling 500 miles from their home and business 

affairs. " 

We agree with the State and the District Court that 

venue would lie in either Lewis and Clark County or Sheridan 

County. This Court has had occasion under similar circumstances to decide this question before. In State v. Bretz 

(1975), 166 Mont. 444, 534 P.2d 496, we cited Shields v. 

Shields (1943), 115 Mont. 146, 139 P.2d 528, and stated: 

". . . if the county in which the action is 

brought and the one to which it is sought to 

have it transferred are both counties of proper 

venue, the action must stay where the complaint 

was filed. That same principle applies in a 

criminal case. If no prejudice or other legal 

reason is shown and the complaint or information is filed in a county of proper venue that 

is where the trial is to be held. . ." 534 

P.2d at 497. (Emphasis supplied.) 

See also, State v. Bretz (1976), 169 Mont. 505, 548 P.2d 

949, 951. Here, no prejudice or other legal reason was 

shown for the change to Sheridan County. The case was filed 

in Lewis and Clark County, a county of proper venue. The 

District Court erred in ordering the trial moved to Sheridan 

County. 

Reversed. 

We concur: 

n 

&g Chief Justice I 
Mr. ~ustice John C. Sheehy dissenting: 

~efendants are charged with the misdemeanor offense 

of failing to file state income tax returns, as such offense 

is defined in section 15-30-321(3), MCA. 

Section 15-30-321 does not specifically define the place 

of commission of an offense of failure to file state income 

tax returns. In that case, ordinarily, the site of the 

crime is determined from the nature of the crime and the 

location of the acts or omissions constituting the offense. 

United States v. Anderson (1946), 328 U.S. 699, 66 S.Ct. 1213, 

90 L.Ed.1529. 

I cannot agree that merely because the office of the 

Department of Revenue is in Helena, where all state income 

tax returns are collected, that persons acting outside the 

county of Lewis and Clark are subject to criminal prosecution 

in Lewis and Clark County because the result of their acts or 

omissions outside that county is that the persons' returns 

have not been collected in Lewis and Clark County. 

The nature of the crime and the acts or omissions constituting the crime all occurred in Sheridan County. Only 

the result, the failure to have a return in the mail for the 

department to collect, occurred in ~ewis and Clark County. But 

on that bare ground, these defendants are required to travel 

500 miles to defend themselves. To be sure, the rule in the 

Ninth Circuit is different. Failure to file a federal income 

tax return is an offense at the defendants residence, or at 

the collection point where the return is to be collected. 

U.S. v. Clinton (C.A. 1978), 574 F.2d 464, cert.den. 99 S.Ct. 

106. However, in the Ninth Circuit case, the District Court 

had already transferred venue to the district of defendant's 

residence. I find no case where the federal government has 

insisted that a nonfiler of returns be tried 500 miles from home 
Since the Department of Revenue is the initiator of 

all prosecutions for this offense, what the majority has 

done in effect is to require all persons charged with income 

tax violations to face trial in Helena regardless of residence. 

The District Court ruled on different grounds, but I 

agree with its result, and would affirm. 

$"-&--;""I Justice ------- 

I agree with the foregoing dissent. 

Pd?-&-J ice