60 Fla. 25 | Fla. | 1910
An information was filed against the defendant in the court below based upon chapter 5468 of the Laws of Florida, (1905, page 162), which is as follows:
“An act to prohibit the issuing by any one of checks or orders upon banks or other persons, when the makers of such orders or checks have not sufficient funds on deposit with the drawee to pay such order, to prescribe a rule of evidence therein and to provide punishment therefor.
Be it enacted by the Legislature of the State of Florida:
Section. 1. Whoever gives, makes or issues to another any draft, order, or check either in his own behalf, or as agent for any person or persons, firm or corporation, upon any bank, banking house, person, firm, or corporation in payment for any goods or chattels, lands or tenements or other things of value, the title or possession of which shall have been transferred upon the faith of the payment of such draft, order or .check and shall not at the time of giving, making, or issuing such draft, order, or check have sufficient money on deposit with such bank, or banking house, person, firm, or corporation to pay said draft, order
Sec. 2. This act shall take effect immediately upon its approval by the Governor.
Became a law without the approval of the Governor.”
A trial was had, which resulted in conviction, and the defendant was sentenced to confinement at hard labor in the State prison for the term of three years. From this judgment and sentence relief is sought here by writ of error.
The first assignment is “that the court erred in not instructing the jury of its own motion to find.a verdict of not guilty.” We have held in several cases that section 1088 of the Revised Statutes of 1892, (now section 1496 of the General Statutes), providing for the'direction of a
The second assignment is based upon the refusal of the motion for a new trial. The only contention made here in support thereof is as to the sufficiency of the evidence to sustain the verdict. It is urged that the evidence fails to show any presentation of the draft in question to the drawee for payment or that the defendant was ever notified of its non-payment, which was necessary under the statute, which we have copied in full above, in order to uphold the verdict. We shall not go into any extended discussion of the evidence. It is sufficient to state that it establishes that the defendant drew a draft for the sum of $35.00, payable on demand to the order of the State Bank of Orlando, on F. W. Sherman, Jacksonville, Florida, at Aragon Hotel, which draft was cashed by such bank; that such draft has never been paid, though it ,was forwarded for collection to a bank in Jacksonville, was presented for payment at the Ara
The general rule is that “It is not necessary that a presentment for payment should be personal. It is sufficient if made at the place specified in the instrument, or personally if the maker or acceptor waives his right of having it made at the place stipulated in the contract; and, if no place is specified in the instrument, then if made at the place of business or residence of the maker or acceptor.” Norton on Bills and Notes (3rd ed.) § 140. In full accordance with this general doctrine, our Legislature, in declaring what is sufficient presentment, has said presentment for payment is made,at the proper place:
“1. Where a place of payment is specified in the instrument and it is there presented.” Section 3006 of the General Statutes of 1906. It is clearly established that the draft in question was presented for payment at the place named therein, that the drawee could not be found there, that the draft was not paid, that notice of its nonpayment was given to the defendant personally and that it has never been paid. We think that this is sufficient, so far as presentment and notice of non-payment are required to uphold the verdict. We are further of the opinion that the evidence was amply sufficient to warrant the jury in returning a verdict of guilty. That there may have been some conflicts in the evidence upon certain points furnishes no ground for our disturbing such verdict, especially as the trial judge concurred therein. We are also of