Opinion
June 6, 1963 —
June 28, 1963.
APPEAL from a judgment and an order of the circuit court for Dane county: EDWIN M. WILKIE, Circuit Judge. Affirmed.
For the appellant there were briefs and oral argument by Rolland R. Roggensack of Lancaster, in pro. per.
For the respondent the cause was argued by William A. Platz, assistant attorney general, with whom on the brief were George Thompson, attorney general, William D. Byrne, district attorney of Dane county, and Donald R. McCallum, deputy district attorney.
Criminal action in which the information charged that Rolland R. Roggensack "did fail or refuse to make and file a Wisconsin return of income" for 1958 and 1959 in violation of sec. 71.11(42), Stats. Defendant pleaded not guilty and waived a jury trial.
The information did not allege that defendant intended to cheat the state out of rightful tax revenue, but the circuit court concluded that such intent was an essential element of the offense; found that defendant had such intent, found him guilty, and fined him $250 on each count. Judgment was entered April 10, 1962.
Certified questions in this action were answered by this court February 6, 1962. State v. Roggensack (1962), 15 Wis.2d 625, 113 N.W.2d 389, 114 N.W.2d 459.
Defendant later moved that the judgment be set aside on the ground that the information failed to charge an intent to cheat the state. This motion was denied by order January 14, 1963.
Defendant has appealed from both the judgment and order.
Sec. 71.11 (42), Stats., provides:
"Any person, other than a corporation, who fails or refuses to make a return at the time hereinbefore specified in each year or shall render a false or fraudulent return shall upon conviction be fined not to exceed $500, or be imprisoned not to exceed one year, or both, at the discretion of the court, together with the cost of prosecution."
CURRIE, HALLOWS, and DIETERICH, JJ., are of the opinion that, as concluded by the learned circuit judge, an intent to evade tax liability is an essential element of the offense proscribed by sec. 71.11 (42), Stats. They are of the opinion that there was no evidence from which it could be found beyond a reasonable doubt that defendant acted with such intent. These justices would reverse the judgment.
BROWN, C.J., and FAIRCHILD and GORDON, JJ., are of the opinion that the offense proscribed by sec. 71.11 (42), Stats., is complete upon failure or refusal to make a return at the time specified, whether or not the offender intends thereby to evade tax liability. These justices would affirm the judgment.
All six justices agree that there was no denial to defendant of equal protection of the law on the ground that other violators have not been prosecuted. The testimony shows that defendant was prosecuted because he was a flagrant delinquent and not because of any invidious selection or discrimination among those who had failed to file returns on time.
WILKIE, J., did not participate in the decision of this case. There being no majority for reversal, the judgment of the trial court is affirmed under the established rule.