State v. Gasque, 17989
| Citation | 128 S.E.2d 154,241 S.C. 316 |
| Decision Date | 09 November 1962 |
| Docket Number | No. 17989,17989 |
| Court | United States State Supreme Court of South Carolina |
| Parties | The STATE, Appellant, v. J. Ralph GASQUE, Respondent. |
Atty. Gen. Daniel R. McLeod, Asst. Sol. John W. Foard, Jr., Asst. Atty. Gen. J. C. Coleman, Jr., Columbia, for appellant.
Frank L. Taylor, Kermit S. King, Columbia, for respondent.
J. Ralph Gasque, the respondent herein, was indicted by the Grand Jury of Richland County at the 1962 April Term of the Court of General Sessions, and charged, in separate indictments, with willfully, unlawfully and feloniously filing with the South Carolina Tex Commission false income tax returns for the years 1956 and 1957. Each of said indictments charged the respondent with attempting to evade paying the correct amount of income taxes actually due for said years by understating the amount of his true gross income. Each of said indictments details the amount of gross income reported and the amount of gross income actually received by the said respondent for said years.
The State and the respondent entered into a stipulation of facts. It was agreed that the respondent was a resident and a practicing attorney in the County of Marion, South Carolina; that the income referred to in said indictments was earned and received by him in Marion County; that the income tax returns referred to were prepared, made, signed and delivered in Marion County, not in Richland County, to an agent of the South Carolina Tax Commission, and that the agent filed the returns in Columbia, South Carolina.
The respondent moved to quash the two indictments upon the ground that he was a resident of Marion County, South Carolina, and not of Richland County; and that the offenses charged in said indictments, if any, were committed in Marion County and not in Richland County; and that he was entitled to be tried upon the alleged charges in Marion County and not in Richland County, as is provided for in the Constitution of this State. The trial Judge sustained the motion of the respondent and quashed the indictments. The State appealed.
The appellant asserts that the trial Judge erred in holding that Richland County Court of General Sessions did not have jurisdiction of the offenses charged, the error being that the filing of the false tax returns with the South Carolina Tax Commission in Columbia constituted at least a partial commission of the alleged crimes in Richland County.
It is conceded that the respondent was indicted for the violation of that portion of Section 65-364 of the Code which makes it a misdemeanor to 'make, render sign or verify any false or fraudulent return or statement or shall supply any false or fraudulent information.' In the 1960 supplement to the Code, Section 65-364, with certain deletion not here pertinent, appears as Section 65-361.4.
The 1895 Constitution of this State, in Article VI, Section 2, provides: 'Unless a change of venue be had under the provisions of this Article the defendant shall be tried in the County where the offense was committed. * * *'; and Article I, Section 17, of the Constitution, provides: 'No person shall be held to answer for any crime where the punishment exceeds a fine of one hundred dollars or imprisonment for thirty days, * * * unless on a presentment or indictment of a grand jury of the County where the crime shall have been committed, * * *.'
The two constitutional provisions above quoted establish the common law rule in this State that criminal prosecutions shall be tried in the county in which the offense was committed.
In the case of State v. McCoy, 98 S.C. 133, 82 S.E. 280, it was held that under Article I, Section 17 of the Constitution, providing that no person shall be held to answer for a crime except in the county where the crime shall have been committed, the right of a party to be tried in a county where the crime was committed is jurisdictional and, hence, McCoy could not be lawfully convicted in Lee County for selling a mortgaged mule in Chesterfield County.
Some crimes are of such a nature that they may be committed partly in one county and partly in another. When an offense is committed partly in one county and partly in another, that is, where some acts material and essential to the offense and requisite to its consummation occur in one county and some in the other, the accused may be tried in either. However, this rule has no application when the offense is complete in one county. The appellant asserts that the offenses charged against the respondent were partly committed in Richland County because of the filing of the false tax returns in the office of the Commission in Richland County. The question to be answered is whether the offenses charged were committed partly in Richland County because of the filing of the false tax returns with the Commission.
Section 65-61 of the Code provides that 'The Commission shall keep its office at the Capitol'; and Section 65-303 of the Code requires that income tax returns of taxpayers 'shall be filed with the Commission'. The State argues that by reason of the foregoing statutory provisions that it was the clear intent of the legislature to place the duty upon the taxpayer of filing a true return of his income with the Commission at its offices at the Capitol, which is in Richland County, by whatever means he chooses. It is then contended that if such income tax return required to be so filed contains false or fraudulent information, that such is in violation of Section 65-364 of the Code, and the offense of violating said section is partly committed in Richland County where the return is filed. We do not think this position sound because Section 65-303 of the Code provides only that the income tax return shall be filed with the Commission, but this statute does not...
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