-valorranes
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ilch a
BIENNIAL REPORT OF THE ATTORNEY GENERAL
897
chance, in that the described scheme appears to be basically a
game of skill. As pointed out above, skill, rather than chance
or luck predominates in adding together the numbers which
make up the drawing and from them obtaining the sum total
of the figures.
nined
notor
Nor does said plan appear to violate any other gambling
statute of this state.
from
There being no true element of chance in the described advertising promotion, the scheme does not consist of a lottery.
These observations seem to answer your above question l.
tall,
AS TO QUESTION 2:
Because of the fact that the plan outlined above is not a
lottery in that one of the essential elements of a lottery is lacking, viz., an award by chance, the persons distributing the
magazine in Florida would be guilty of no violation of our
gambling laws nor would any person in the state in connection
with the publication be guilty of any violation in law.
056-316-November 1, 1956
CRIMES
WORTHLESS CHECK LAW-AUTHORITY TO ISSUE WARRANT FOR WORTHLESS OUT-OF-STATE CHECK IN
PAYMENT OF GOODS DELIVERED TO OUTOF-STATE JURISDICTION, §§832.05(2),
(3) AND 674.01, F. S.
To: Gordon G. Oldham, Jr., Prosecuting Attorney, Lake County
QUESTION:
Does Lake county have jurisdiction to issue a
criminal warrant for a worthless out-of-state check sent
to said county in payment of goods delivered to the outof-state jurisdiction under §832.05 (2) F. S.?
While it may be that there is no desire to bring a charge of
obtaining money under false pretenses in the given factual situation, it would seem that the explicit provisions of sub §§ (2) or (3)
of §832.05, F. S. comprehend the issue which you present. Subsection (2) of §832.05, F. S., specifically makes it unlawful for
any person, firm or corporation to deliver to another any check on
any bank, with knowledge that at the time of drawing or delivering
such check that the drawer thereof had not sufficient funds on
deposit in or credit with such bank or depository with which to
pay same on. presentation.
Subsection (3) of §832.05, F. S., makes it unlawful for any
person, firm Or corporation to obtain any goods by means of such
worthless checks.
The penalty for violating the provisions of §832.05, F. S., is
identical to that provided for the crime of larceny.
It would clearly seem that in the factual situation you present,
that a worthless check had been delivered in Florida in payment
of goods sent to the out-of-state jurisdiction.
898
BIENNIAL REPORT OF THE ATTORNEY GENERAL
The terminology of sub §§ (2) and (3) of §832.05, F. S.,
prohibits the delivery of a worthless check, such apparently being
done in violation of said section, provided the drawer had knowledge of the insufficient status of his bank account. "Delivery" is
defined by §674.01, F. S., relating to negotiable instruments, as
the transfer of possession, actual or constructive, from one person
to another, and §832.05, F. S., clearly governs the situation which
you describe since a worthless check was delivered in Florida in
violation of said section.
It is quite clear that where an instrument is mailed to the
payee with the express or implied authority of the payee, delivery
is deemed to have taken place at the point of mailing. But where
there exists no antecedent authority (on the part of the payee)
the rule is to the effect that "delivery through the mails does
not take place until the instrument is received by the payee."
Britton on Bills and Notes, §50, p. 199. In accord with this principle is 10 C. J. S., Bills and Notes, §78, wherein that authority
establishes that delivery is largely a matter of intention. In the
situation you present, it seems clear that it was the intent of the
vendor that payment for his wares be in Florida. Moreover, th~
last cited authority also sets forth the proper rule that if the
check is not sent by mail at the request of the payee, the instrument is not delivered until received.
Perhaps one additional factor should be called to your attention. Section 941.06, F. S., and Ennist v. Baden, 158 Fla. 141, 28
So. 2d 160, should be followed when drafting the complaint. The
decision so cited would require that a demand for extradition state
that the person sought was present in the demanding state when
the alleged crime was committed. When drafting the complaint,
the facts should be set forth to show that the accused by his
delivery of a worthless check in Florida violated our statute. This
would establish a proper predicate for extradition under the Ennist
case, supra, should such a step be necessary.
It appearing that an offense comprehended by sub §§ (2) or (3)
of §832.05, F. S., may have been committed, (if the maker had
knowledge of the insufficient status of his bank account) an arrest
warrant may be issued under the provisions of Ch. 901, F. S., and
an information, affidavit and warrant may be sworn out in accordance with the provisions of Ch. 923, F. S.
056-317-November 1, 1956
HIGHWAYS, BRIDGES AND FERRIES
JACKSONVILLE EXPRESSWAY AUTHORITY, RELATIONSHIP TO BOARD OF ADMINISTRATION-CR. 349, F. S.
To:
Lucius A. Buck, Chairman, Jacksonville Expressway
Authority, Jacksonville
QUESTION:
Under the provisions of Ch. 349, F. S., (Chapter
29996, 1955) what are the respective rights, powers
and duties of Jacksonville expressway authority and
state board of administration, under circumstances now
existing as set forth below, in relation to the following