### 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 

## 1980Mr. Justice Gene B. Daly delivered the Opinion of the Court. This 

### is an appeal by the State of Montana from an order of the DistrictCourt of the FirstJudicial District, inand for the County of Lewis and Clark, granting a change of
venue ina criminal prosecution. Defendants inthis action

### were charged with the offense of intentionally failing tomake or render a properly completed Montana Individual Income Tax Return. Defendants initiallyappeared on August 16, 1979, and their arraignment
was 

### set for August 23, 1979. On that day, defendants failed to appear. The DistrictCourt contacted defendants by telephone and accepted an oralmotion for 

### a change of venue. Pursuant to the court's order, the State filed 

### its brief in opposition tothismotion on September 

### 11, 1979. The motion
was granted on September 26, 1979, and the Statebrings this appeal. The Statepror2erly filed 

### itsbrief on appeal with this Court on November 9, 1979. Respondents failed to filea 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 

### itsbrief. We granted respondents an additional ten days to file their brief. Respondents again failed to filea brief, and on January 25, 1980, this Court issued an order submitting this case for decision on appellant's brief. The sole issuepresented for review 

### iswhether the DistrictCourt erred inchanging the venue of this action from Lewis and Clark County to Sheridan County. Section 46-3-101(1), MCA, provides: "In allcriminal prosecutions the 

### trial shallbe in the county where the offensf?was committed unless otherwise provided by law."Section 46-3-102, MCA, provides: "Where two ormore acts

### are requisite to the commission of any offense, the trialmay be in any county inwhich 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 inanother county. The only elements of the 

### crime which areof interest are those actsconstituting or requisite to the consummation of the offense; the trial of the case may be held inany county inwhich such acts occur." The State contends thatunder section 15-30-144, MCA, income tax returns are required tobe filedwith the Department of Revenue, which 

### is further required tobe located at Helena, Montana, by section 2-15-112, MCA. Consequently, it argues the offense of failing to filea return or to provide information 

### as 

### set out in section 15-30-321, MCA, 

### iscommitted inLewis and Clark County, and therefore, venue properly 

### lies inLewis and Clark County under section 46-3- 101, MCA. The DistrictCourt concluded: "To constitute a violation of the income tax law, the individual so charged must have had gross income inexcess of $750.00 per year. Thus the actof 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 trialwhen convenience of witnesses and ends of justice would be promoted by the change and preference astodefendants' 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 arepromoted by having the trial inthe county of the residence of thedefendants 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 DistrictCourt that
venue would 

### lie ineither Lewis and Clark County or Sheridan County. This Court has had occasion under similar circumstances to decide thisquestion before. In Statev. Bretz (1975), 166 Mont. 

### 444, 534 P.2d 496, 

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

# ".

. . if the county inwhich the action 

### is brought and the one towhich 

### it is sought to have it transferred 

### are both counties of proper venue, 

## the actionmust staywhere 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 

### iswhere the trial

### is tobe held. 

# . ." 534 P.2d at497. (Emphasis supplied.) See also, Statev. 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 inLewis and Clark County, a county of proper venue. The District Court erred inordering the trialmoved to Sheridan County. Reversed.

We concur:

n 

# &g Chief Justice IMr. ~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 specificallydefine the place of commission of an offense of failure to file state income tax returns. In that case, ordinarily, the site of the 

### crime isdetermined from the nature of the 

### crime and the location of the acts or omissions constituting the offense. United Statesv. 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 inHelena, where all stateincome tax returns are collected, that persons acting outside the county of Lewis and Clark are subject tocriminal prosecution inLewis and Clark County because the result of their acts or omissions outside that county 

### is that thepersons' returns have not been collected inLewis and Clark County. The nature of the 

### crime and the acts or omissions constitutingthe 

### crime alloccurred in Sheridan County. Only the result, the failure tohave a return in themail for the department tocollect, occurred in

### ~ewis and Clark County. But
on that bare ground, these defendants are required totravel 500 

### milestodefend themselves. To be sure, the rule inthe Ninth Circuit 

### is different. Failure tofilea federal income tax return 

### is an offense atthe defendants residence, or at the collectionpoint where the return is tobe 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 DistrictCourt had already transferred venue tothe districtof defendant's residence. I find no casewhere 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 allprosecutions for this offense, what themajority has done ineffect is 

### torequire allpersons charged with income tax violations toface trialinHelena regardless of residence. The District Court ruled on differentgrounds, but I 

### agree with its 

### result, and would affirm. 

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

## -------

I 

### agree with the foregoing dissent. 

# Pd?-&--
J ice