I dissent.
The information filed herein charges the defendant with the crime of perjury in that the defendant, after being sworn by and before one Harold E. Olsson, a notary public residing at Ronan, Lake County, made affidavit and certificate to a fact as true, knowing it to be false, and executed the same.
Olsson testified he was a banker in Ronan and a duly commissioned notary public for the State of Montana on October 17, 1949, the date he executed the notary jurat on the affidavit to the claim here involved and which defendant executed: that the signature “James Rother, Jr.” affixed to such affidavit is that of the defendant and that he, Olsson, notarized and affixed his notarial seal thereto at Ronan, Lake County, Montana. At the bottom of and as a part of defendant’s “Claim *389for Refund Gasoline Tax State of Montana” is defendant’s affidavit in words and figures as follows, viz.:
“State of Montana
“County of Missoula
“I, James Rother Jr., being first duly sworn on oath, state that the above and foregoing is a true and correct statement showing gasoline purchased and consumed by the claimant; that none of the gasoline on which refund is claimed Was Used In Any Vehicle Propelled Over The Public Highways Or Streets Of The State; That The Invoices Included Are The Original Purchase Invoices Received At The Time Of Purchase; that the said account against the State of Montana is just and wholly unpaid.
“(Signed James Rother Jr.
“Subscribed and sworn to before me this 17 day of October, 1949.
“(Signed) H. E. Olsson
Notary Public for the State of Montana
“ [Notarial Seal] Residing at Ronan
“My Commission Expires 3/20/50”
The above allegedly perjurious claim and affidavit on which the information and accusation against defendant are grounded were made by defendant to induce the state board of equalization to refund to defendant the sum of $623.83.
R.C.M. 1947, section 94-3806, provides: “It is no defense to a prosecution for perjury that the oath was administered or taken in an irregular manner.”
The information charged the offense as having been committed at Lewis and Clark County, Montana. The state board of equalization has its offices in such county and it there acted upon, allowed and paid the claim. The district court directed a verdict of not guilty, taking the position that if any offense has been proved it occurred in Missoula County or in Lake County and that for such reason the state had not proved venue of the offense in Lewis and Clark County.
The crime of perjury is a public offense and is a felony, *390punishable as provided in B.C.M. 1947, section 94-3811. “It is no defense to a prosecution for perjury that the accused did not know the materiality of the false statement made by him; or that it did not, in fact, affect the proceeding in or for which it was made. It is sufficient that it was material * * *.” Emphasis supplied. B.C.M. 1947, section 94-3808.
“It is no defense to a prosecution for perjury that the accused was not competent to give the * * * deposition, or certificate of which falsehood is alleged. It is sufficient that he did * * * make such deposition or certificate.” B.C.M. 1947, section 94-3807. Emphasis supplied.
B.C.M. 1947, Chapter 56, Local Jurisdiction of Public Offenses, section 94-5605, declares that, “When a public offense is committed in part in one county and in part in another, or the acts or effects thereof constituting or requisite to the consummation of the offense occur in two or more counties, the jurisdiction is in cither county.’’ Emphasis supplied. Section 94-5605 was conceived for the purpose of extending the lines of jurisdiction and venue beyond the limits fixed by the common law and thus forestall the technical rule relating to venue in multiple element offenses. California has an identical statute being section 781, Cal. Pen. Code, and New York, Code of Criminal Procedure, section 134. See People v. Kastel, 221 App. Div. 315, 222 N.Y.S. 744, 746; Id., 250 N.Y. 518, 166 N.E. 307.
There is no question here but that the allegedly perjurious affidavit, sworn to as true by defendant and properly notarized by Olsson, was delivered to the state board of equalization at its office at the Capitol in Helena in Lewis and Clark County for approval, allowance and payment and that it was there processed by said board and paid. The intent of the affiant therein to utter and publish it to said board in Lewis and Clark County as true was successful.
It is pertinent to note that B.C.M. 1947, section 94-3809, being under the same perjury Chapter 38, provides: “The making of a deposition or certificate is deemed to be complete, from *391the time when it is delivered by the accused to any other person, with the intent that it be uttered or published as true.” Emphasis supplied.
Apparently the trial court interpreted this section 94-3809 as follows: “I subscribe to the rule in American Jurisprudence that when you are trying to charge perjury, the perjury is committed when the affiant swears to and signs the affidavit. That is the consummation of the act of perjury. It is not the consummation of the act of filing a false affidavit; * * * and it wouldn’t be the consummation of the act of making a false statement to the state board of equalization.”
The trial court went on to state, “It is my opinion, as a matter of law, and I so rule, that this ease cannot proceed any further by reason of the fact venue has not been proven. For that reason I have granted the motion for directed verdict and I am going to appoint you, Mr. Larimer, as foreman of this jury to sign this verdict. I am simply taking this case out of your hands; there is nothing left for you to decide.
“If you will take this, and sign under my direction, as foreman of the jury, the directed verdict which finds the defendant, James Rother, Jr., not guilty.”
It is my understanding that venue and jurisdiction are not synonymous. “Jurisdiction” of a cause means the power and authority given by law to hear and determine it, whereas “venue” designates the area in which a court with jurisdiction hears and determines the case. Here the jurisdiction is granted by section 94-5605, supra.
It is the understanding of the writer of this dissenting opinion that the facts and circumstances, set forth in the record herein, bring the case squarely within the provisions of section 94-5605, supra, and that the district court of either Lewis and Clark County or Lake County had jurisdiction to try the case under said section. Part of the alleged offense took place in Lake County, i. e., the making of allegedly perjurious affidavit or certificate. But the intent of defendant, that it be “uttered” or published as true, could only be for use in ef*392feeting payment to the utterer by the person or entity to whom it was made and directed and by whom it must be approved and allowed, that is the state board of equalization at and in its office at the Capitol in Helena in Lewis and Clark County and not elsewhere.
The last part of section 94-5605 states, “or the acts or effects thereof constituting or requisite to the consummation of the offense occur in two or more counties, the jurisdiction is in either county.” Where jurisdiction is fixed by law, the court of the county in which it is so fixed must assume jurisdiction. See R.C.M. 1947, section 93-1106.
The alleged offense was started in Lake County, the allegedly perjurious instrument was delivered to the board of equalization in Lewis and Clark County for payment, and it was approved and paid in Lewis .and Clark Countj^ by said board. Certainly the execution of the said instrument in Lake County on the forms provided by the state board of equalization, and said executed affidavit directed to said board, delivered to and filed with said board as provided by section 1 of Chapter 198, Laws of 1949, and the delivery thereof by mail or in any other manner or means to the state board in Lewis and Clark County were acts in each county constituting or requisite to the consummation of the offense.
The federal law on jurisdiction in such cases reaches the same result as our section 94-5605, supra, as illustrated by the following. In United States v. Ford, D.C., 3 F. (2d) 643, 647, it is said, “It is, of course, elementary that where a crime is committed partly in one jurisdiction and partly in another the venue may be laid in either place.” It is well settled that a prosecution may be maintained in the district where one or more of the acts of the offense took place under section 731 of the Revised Statutes, Com. St. section 1024, which is as follows: “ ‘When any offense against the United States is begun in one judicial district and completed in another, it shall be deemed to have been committed in either, and may be dealt with, inquired of, tried, determined, and punished in either *393district, in the same manner as if it had been actually and wholly committed therein.’” See Ford v. United States, 9 Cir., 10 F. (2d) 339, 345. The above section is now Title 18, U.S.C.A., section 3237.
The execution of the affidavit or certificate in Lake County and its delivery in Lewis and Clark County to the state board of equalization for payment are acts in each county constituting the charged offense. Section 94-5605. If the information charges the commission of an offense in one county and the evidence shows that the offense was committeed partly in that county and partly in another county, there is no variance and venue and jurisdiction are established. See People v. De Martini, 25 Cal. App. 9, 142 Pac. 898; People v. Thorn, 138 Cal. App. 714, 33 Pac. (2d) 5; People v. Waid, 127 Cal. App. (2d) 614, 274 Pac. (2d) 217; State v. Ashe, 182 Wash. 598, 48 Pac. (2d) 215; Commonwealth v. Jones, 118 Ky. 889, 82 S.W. 643, 644, 645; Commonwealth v. Ward, 308 Ky. 666, 215 S.W. (2d) 565, 566.
This must be so, for by analogy, R.C.M. 1947, section 94-5602, provides that, “When the commission of a public offense, commenced without the state, is consummated within its boundaries, the defendant is liable to punishment therefor in this state though he was out of the state at the time of the commission of the offense charged. If he consummated it in this state, through the intervention of an innocent or guilty agent, or any other means proceeding directly from himself, in such case the jurisdiction is in the county in which the offense is consummated.” Emphasis supplied. The intent of the legislature is clearly expressed.
In State v. Cassill, 70 Mont. 433, 438, 227 Pac. 49, 51, this court said: “The acts constituting or requisite to the consummation of the offense charged here occurred in two counties, and trial might have been had in either. This case presents a clear illustration of the application of section 11707 [R.C.M. 1921, now R.C.M. 1947, section 94-5605], Citation of author*394ity would seem to be unnecessary * * Compare People v. Rathbun, 21 Wend., N.Y., 508, and cases cited.
The mere delivery of a perjurious affidavit to some third person is not in itself an uttering. It must be delivered at the instance of the accused to a person or entity to whom it is directed or in a matter where the truth or falsity thereof would be of some use. In the instant ease, the allegedly perjurious affidavit or certificate was made upon forms furnished by the state board of equalization and attached to and made a part of a claim and affidavit for a refund of the gas tax and directed to the said state board at its office located at Helena in Lewis and Clark County, and the state board, believing the same to be true, there allowed and paid the said claim. Can it be said under these facts that the affiant therein did not have the intent that the allegedly perjurious instrument be uttered and published to the state board at the Capitol in Lewis and Clark County as true? Who acted and who was acted upon? “Uttering” implies two parties, a party acting and a party acted upon.
The guilty cannot escape punishment by merely routing their perjurious affidavits through agents, innocent or otherwise. See People v. Kastel, supra.
If an agent of the state board of equalization had been present at the making of the allegedly perjurious affidavit or certificate in Lake County and the same had been at the same time delivered to such agent by the affiant, the offense would have been completed in the one county and jurisdiction would be there. Compare People v. Boggess, 194 Cal. 212, 228 Pac. 448, 451. But where, as here, the offense is committed in part in two different counties and acts or effects requisite or constituting the consummation of the offense occur in two or more counties, the venue and jurisdiction to try the offense are in either county.
The trial court was clearly without authority to make its order of December 20, 1954, directing the jury to return a verdict of “not guilty”, and the verdict rendered under such or*395der and direction is null, void and of no effect whatever. Said order of the trial court and such verdict should be vacated and set aside.