State v. Sankey

• Decision Date: 03 July 1941
• Docket Number: 8402
• Citation: 299 N.W. 235,68 S.D. 127
• Parties: STATE OF SOUTH DAKOTA, Respondent, v. J.F. SANKEY, Appellant.
• Court: South Dakota Supreme Court

68 SD 127, 299 NW 235 (1941)

STATE OF SOUTH DAKOTA, Respondent v J.F. SANKEY, Appellant South Dakota Supreme Court Appeal from Circuit Court, Codington County, SD Hon. Vern G. Wohlheter, Judge #8402—Affirmed. John N. Weber, Watertown, SD Attorney for Appellant. Leo A. Temmey, Atty. Gen. R. C. Riter, Asst. Atty. Gen., Pierre, SD Attorneys for Respondent. Opinion filed Jul 3, 1941; Rehearing Denied Sep 9, 1941

ROBERTS, J.

Defendant was charged in an information containing six counts with the crime of embezzling state funds. It charges, in substance, that during the months of September, October and November, 1939, defendant was the president and managing officer of the Sankey Fuel & Transportation, Co., a corporation; that the company as a licensed dealer imported and sold during the said period 41,400 gallons of taxable motor fuel and as the agent of the state collected the motor fuel tax imposed thereon from persons to whom the motor fuel was sold; and that defendant unlawfully and feloniously aided and abetted the company in embezzling and appropriating to their own use the money so collected. The jury returned a verdict of guilty, and from the judgment entered upon the verdict, defendant has appealed.

Defendant assigns as error that the evidence fails to establish his guilt. It is urged that defendant was merely indebted to the state for the amount of tax on the motor fuel sold; that defendant cannot be found guilty of embezzlement when no trust relationship existed; and that the motor fuel tax statute contains specific and exclusive provisions for violation of its provisions.

The Motor Vehicle Fuel Tax Law, SDC 57.38, imposes a tax of four cents per gallon on all motor fuel sold or used in this state. It provides that the tax shall be collected by a “dealer”, and that it shall be unlawful for any dealer to engage in business without first securing a license from the State Treasurer. The term “dealer” includes “any person, firm, association, or corporation, selling or receiving from any source, importing or causing to be imported into this state, ... motor fuel for use, sale, or distribution in this state.” The dealer is required to collect the tax of four cents per gallon at the time of making sale, and to render to the State Treasurer on or before the 15th of each month a statement under oath of all motor vehicle fuel imported, sold or used during the preceding month. The dealer is required to pay the tax within thirty days after the filing date of the monthly report. A deduction of four percent of’ the total gallonage may be made for losses in handling, expenses incurred, preparing monthly reports, accounting for and collection of the taxes. The act makes the dealer “an agent of the state for the purpose of ... collection”, and provides that the four cents per gallon shall be collected by the dealer in addition to the selling price. Any person purchasing fuel for a purpose other than the operation of a motor vehicle upon the highways of this state may obtain a refund upon making a claim to the State Highway Commission. If any person liable for the payment of the tax fails or refuses to make payment, the tax becomes delinquent and a penalty attaches. The State Treasurer is authorized to revoke the license of a dealer who fails to comply with any provision of the act, and it is made the duty of the Attorney General to bring an action to recover the amount certified by the State Treasurer as delinquent.

SDC 57.9930 provides: “Any dealer, person, or association of persons, firm, partnership, or corporation who shall fail to transmit or pay the motor vehicle fuel...