Anderson v. State

• Decision Date: 04 February 1936
• Citation: 221 Wis. 78,265 N.W. 210
• Parties: ANDERSON v. STATE.
• Court: Wisconsin Supreme Court

221 Wis. 78

265 N.W. 210

ANDERSON

v.STATE.^a1

Supreme Court of Wisconsin.

Feb. 4, 1936.

Error to the Municipal Court of Milwaukee County; C. M. Davison, Circuit Judge.

Affirmed.

Action by the state against Alfred Anderson, commenced June 23, 1934. The defendant prosecutes a writ of error to review the judgment entered July 18, 1935, convicting him of embezzlement. The facts are stated in the opinion.William E. Burke, of Milwaukee, for plaintiff in error.

James E. Finnegan, Atty. Gen., J. E. Messerschmidt, Asst. Atty. Gen., and William A. Zabel, Dist. Atty., and Francis A. Darnieder, Sp. Asst. Dist. Atty., both of Milwaukee, for the State.

FOWLER, Justice.

The defendant was charged with embezzlement on October 20, 1932, of $4,158.80 of moneys belonging to the state collected by him from purchasers as the 4–cent per gallon tax imposed by the state on sales of gasoline. Trial was to the court without a jury. The defendant was found guilty and sentenced to the state prison for an indeterminate term of one to five years. It is contended that the evidence does not support the conviction.

[1] The defendant was licensed as a dealer in motor fuel oil and admitted on the trial that during the month of September, 1932, he collected $1,500 in taxes from purchasers purchasing for resale and did not turn any of it over to the state, but “put the money in his pocket.” He was required by the statute to turn over all taxes collected during a given calendar month by the 20th of the month following. He was thus required to pay this $1,500 and all other taxes collected during the month of September by October 20th. October 20th is alleged as the date of the embezzlement. The total tax on sales made by him during the month was the amount charged in the information. The defendant claimed that some of the taxes due for sales made were charged to the purchasers and not in fact collected by him, but how much, if any, was charged and not collected does not appear. The admission as to the $1,500, however, justifies the sentence imposed if it was “put in his pocket” with intent to defraud, as the court by its judgment of guilty found. The defendant stated that he did not intend to defraud the state, but it is obvious that the finding of intent to defraud was amply supported. By section 343.21, Stats., the failure to turn over the money on demand was prima facie evidence of embezzlement. The court was not bound to take as true the defendant's bald assertion, uncorroborated by any facts or circumstances tending in any way to support it, that he did not intend to defraud. The evidence shows that during about three months the defendant operated he collected $14,000 in taxes and did not turn over any of it, and that he stated that “if he had a couple more months to operate he would be sitting pretty.” The inference of intent to defraud was fully warranted.

It is thus apparent that the defendant's conviction must stand unless the defendant's contentions respecting special matters urged in defense are upheld. These matters will be discussed seriatim.

[2] 1. It is contended that the statutes as they stood at the time the matters involved occurred merely made the defendant liable to the state for the amount of the tax on the gasoline sold and thus merely created the relation of debtor and creditor. These statutes are contained in chapter 78, Stats. 1931 (section 78.01 et seq.). They provide that it is the intent of the chapter to impose the tax upon the owners and operators of motor vehicles. Dealers in gasoline were required to procure a dealer's license. Every dealer was required not later than the 20th of each calendar month to submit to the state treasurer a sworn statement of the number of gallons sold during the preceding calendar month. Each dealer was required to collect from the purchasers and to pay to the state treasurer the tax of 4 cents per gallon on each gallon sold when such statement was rendered. In case the tax was not paid by the dealer when due, a penalty of 10 per cent. immediately accrued, and, if the tax remained delinquent, a further penalty of 2 per cent. for each month it remained delinquent was imposed, and the penalties were to be paid when the tax was paid. If the tax remained unpaid on the 1st of the month following the time when payable, the dealer's license was automatically revoked. The dealer was authorized to collect the 4–cent per gallon tax as part of the selling price of the fuel. Section 78.10, Stats., provided that “any person” who neglected to pay the tax should be guilty of a misdemeanor punishable by a fine of not less than $100 and not more than $1,000, and that action might be brought against a dealer failing to pay the tax, and a receiver might be appointed by the court forthwith of his property and business to impound them as security, and that in case of assignment for the benefit of creditors or bankruptcy proceedings the state's claim for unpaid taxes should be a preferred claim.

The defendant's claim that these statutes constitute the relation of debtor and creditor between him and the state at first blush seems to receive some support from the statement of this court in Donley v. W. H. Barber Co., 215 Wis. 338, 340, 254 N.W. 553, 554, that the provision of the statute making the claim for taxes a preferred claim “is an apparent declaration by the Legislature of its purpose to treat this as a debt and not as a tax lien.” And of course, generally speaking, taxes are debts due the government. Mariner v. Milwaukee, 146 Wis. 605, 609, 131 N.W. 442. However, the declaration of the statute that the purpose of the Legislature was to impose the tax on the owner or operator of the motor vehicle, clearly indicates that the tax is imposed against the person purchasing it for use in his motor vehicle, and that the dealer is the agent of the state in collecting the tax. We are of opinion that the chapter should be construed as creating the relation of agent for collection rather than that of a mere debtor. Of course any agent who fails to turn over collections by his failure becomes a debtor, but becoming a debtor does not destroy the relation of agency. The point seems sufficiently covered by a statement in Monamotor Oil Co. v. Johnson, 292 U.S. 86, 54 S.Ct. 575, 578, 76 L.Ed. 1141, concerning a like statute: “Instead of collecting the tax from the user through its own officers, the state makes the distributor [[[[licensed dealer] its agent for that purpose. This is a common and entirely lawful arrangement.”

It was held in People v. Kopman, 358 Ill. 479, 193 N.E. 516, under a like statute that the licensed dealer was the agent of the state. We perceive nothing in the Illinois statute to differentiate it on this point from our statute, unless the provision for allowing the dealer the cost of collecting the tax and deducting it from the amount remitted does so. Otherwise the statutes are identical in substance although not in wording. That agency was created by the Illinois statute independent of the allowance of the fee for collection is shown in 2.

[3] 2. It is urged that the provisions making failure to pay the tax by a person a misdemeanor and imposing a penalty for nonpayment limits the state to prosecution for the misdemeanor or suit to collect the penalty. This also, at first blush, seems tenable. However, these remedies lie in absence of intent to defraud. The mere fact of nonpayment renders the delinquent guilty of the misdemeanor and subjects him to suit as stated. Where the intent to defraud appears, we are of opinion that prosecution for embezzlement also lies. This view is supported by the case of People v. Kopman, supra. The Illinois statute involved especially made the distributor the agent of the state, and allowed him the actual cost of making collection and payment, and this to a degree differentiates the case cited from the case at bar, but the fact of agency would seem to follow from a previous declaration of the statute, similar to the declaration of our statute, that the tax was imposed on the privilege of operating motor vehicles on the highways. The prosecution in that case was for embezzlement. The case is squarely in point on the proposition that the state was not prevented by the misdemeanor provision from prosecuting the defendant herein for embezzlement, for the Illinois statute contained a provision making one willfully failing or refusing to make payment to the state punishable by a fine not to exceed $5,000 or imprisonment for not less than one or more than five years or both such fine and imprisonment.

[4][5][6] 3. It is contended that, as the embezzlement was charged in the information as committed on October 20th and the moneys embezzled consisted of taxes collected in September, the offense of embezzlement was committed prior to the date charged and will not support a conviction of embezzlement on that date. State v. Cornhauser, 74 Wis. 42, 41 N.W. 959, is cited in support of this contention. It was there held that as section 4667, R.S.1878, permitted evidence of transactions during the six months...