People v. Byars

• Decision Date: 03 February 1961
• Docket Number: Cr. 7250
• Citation: 188 Cal.App.2d 794,10 Cal.Rptr. 677
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Appellant, v. Robert Lee BYARS, James William Eidson, and Harley Gotfriedt Larson, Defendants and Respondents.

Page 677

10 Cal.Rptr. 677

188 Cal.App.2d 794

PEOPLE of the State of California, Plaintiff and Appellant, v. Robert Lee BYARS, James William Eidson, and Harley Gotfriedt Larson, Defendants and Respondents.

Cr. 7250.

District Court of Appeal, Second District, Division 1, California.

Feb. 3, 1961.

Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., Paul W. Davis, Dist. Atty., County of San Luis Obispo, and Robert N. Tait, Deputy Dist. Atty., San Luis Obispo, for appellant.

Charles E. Ogle, Morro Bay, for respondents.

LILLIE, Justice.

The last 13 counts of a 16-count indictment were set aside on defendants' motion; the lower court found there was no competent evidence to support reasonable cause. The People appeal from the order. Count I charging a conspiracy of three defendants to present false claims for payment, and Counts II and III alleging separate violations of Section 72, Penal Code, are not here involved.

Counts IV through XV accuse one Byars, a 'person charged with the receipt and safekeeping and transfer of public moneys of the San Luis Obispo County Water District No. 2,' of appropriating public moneys ranging from $5 to $116.28 to his own use and for the use of another, in violation of Section 424, subdivisions (1) and (2), Penal Code. Count XVI charges Byars and one Eidson with conspiracy and alleges that at various times they conspired to appropriate to their own use various sums of public moneys.

While all that is required by way of evidence to support an indictment is a reasonable probability of defendant's guilt, the evidence upon which it is found must be competent and admissible (Dong Haw v. Superior Court, 81 Cal.App.2d 153, 183 P.2d 724; McFarland v. Superior Court, 88 Cal.App.2d 153, 198 P.2d 318); thus, when the only evidence produced against a defendant is incompetent and inadmissible, there exists no reasonable or probable cause to hold him. 'The proof which will authorize a magistrate in holding an accused for trial must consist of legal, competent evidence. No other type of evidence may be considered by the magistrate. The rules of evidence require the 'production of legal evidence' and the exclusion of 'whatever is not legal." People v. Schuber, 71 Cal.App.2d 773, 775, 163 P.2d 498, 499. The same applies to evidence received before the grand jury to support an indictment (People v. Flanders, 140 Cal.App.2d 765, 296 P.2d 13) and if the competency of the evidence is challenged, then it becomes a matter reviewable on a motion to set aside the indictment under Section 995, Penal Code. People v. Soto, 144 Cal.App.2d 294, 301 P.2d 45. Thus if the only evidence against Byars and Eidson is hearsay or otherwise inadmissible, and incompetent, leaving no evidence that a crime has been committed (People v. Jablon, 153 Cal.App.2d 456, 314 P.2d 824) or none to connect them with the offenses charged (Jensen v. Superior Court, 96 Cal.App.2d 112, 214 P.2d 828), the indictment must be set aside.

Inasmuch as our only concern is whether there is any legal, competent evidence to support the indictment (People v. Schuber, 71 Cal.App.2d 773, 163 P.2d 498; People v. Soto, 144 Cal.App.2d 294, 301 P.2d 45; Greenberg v. Superior Court, 19 Cal.2d 319, 121 P.2d 713), we summarize in pertinent detail the evidence received in connection with each count. The testimony offered to the grand jury is somewhat brief considering the nature of the accusations, although numerous documents in the form of invoices, cancelled checks, bank deposit slips and official receipts were received in evidence.

Relative to the allegation in each count that Byars was then a 'person charged with the receipt and safekeeping and transfer of public moneys of the San Luis Obispo County Waterworks District No. 2,' a certified copy of the original resolution of the Board of Supervisors dated February 15, 1937, (Ex. 102) establishing rules and regulations for San Luis Obispo County Waterworks District No. 2 providing rates, billing, penalties, charges, refunds and that '(a)ll sums collected by the superintendent shall be certified to the County Auditor and deposited with the County Treasurer at least once every month,' and a certified copy of the original order of the Board appointing Byars as superintendent of Waterworks District No. 2, effective October 21, 1946, (Ex. 102), were received; and the county auditor testified from the certified County payroll that Byars and Eidson were 'regular, full-time employees during the months of July, August and September, 1958.'

Count IV charged Byars with appropriating $81 to his own use and the use of another. The Administrator of the Morro Union Elementary School received an invoice for $132 dated August 27, 1958, from Waterworks District No. 2, for installation of sewer lines (Ex. 4-A); in payment thereof he drew a School warrant for $132 dated September 5, 1958, in favor of the Waterworks District (Ex. 4-B), which was later stamp endorsed 'County of San Luis Obispo Waterworks District No. 2, Robert L. Byars, Sup't'; the Official Receipt book of Waterworks District No. 2 discloses a carbon copy of an official receipt crediting the School with $51 on October 10, 1958, (Ex. 4-C) 'On Account of Water Consumed Between Reading Dates' and bearing the notations 'Miscel. Receipt' and 'R. L. Byars,' in handwriting with several initials below the name; and on October 10, 1958, Waterworks District No. 2 deposited to its account in the bank the School warrant for $132 (Ex. 4-D).

The evidence received in connection with Count V charging Byars with appropriating $10 for his own use July 18, 1958, reveals that Mike St. John received an invoice from Waterworks District No. 2 in the sum of $17.50 dated July 1, 1958, (Ex. 5-A); a check in payment thereof payable to the County of San Luis Obispo in the amount of $17.50 was issued July 17, 1958, (Ex. 5-B); an official receipt in the office of the County Auditor dated July 18, 1958, credited St. John with $7.50 (Ex. 5-C); and on July 18, 1958, Waterworks District No. 2 deposited in the bank to its account St. John's check in the sum of $17.50 (Ex. 5-D).

Count VI alleged that Byars on July 21, 1958, appropriated $10 to his own use and the use of another. The evidence shows that the Harbor Supply Co. received an invoice from Waterworks District No. 2 dated July 1, 1958, in the amount of $15 (Ex. 6-A) and a water bill dated 6/1-7/1 in the sum of $3.50 (Ex. 6-F); in response thereto the company paid $18.50 to Waterworks. District No. 2 by check dated July 10, 1958, (Ex. 6-B), which was deposited by it in the bank on July 23, 1958, (Ex. 6-E); and an official receipt in the Auditor's office shows that first on July 18, 1958, Waterworks District No. 2 credited Harbor Supply Co. with $15 but marked the same 'Void' (Ex. 6-C), that later on, July 21, 1958, another receipt was made out in the amount of $5 (Ex. 6-D).

In connection with Count VII accusing Byars of appropriating to his own use $15 on September 2, 1958, the evidence reveals that Harbor Supply Co. on August 15, 1958, received an invoice for $19 (Ex. 7-A); that it paid the amount by a $19 check made payable to Waterworks District No. 2 dated August 26, 1958, (Ex. 7-B); that the receipt book shows the company was credited with $4 on September 2, 1958, (Ex. 7-C); and that the check for $19 was deposited in the bank on September 3, 1958, (Ex. 7-D).

Count VIII charged defendant with appropriating $30 to his own use on September 5, 1958. Waterworks District No. 2 sent to Morro Rock Mutual Water Co. an invoice for $38, dated August 15, 1958, (Ex. 8-A); it paid by a $38 check dated September 1, 1958, (Ex. 8-B); Waterworks District No. 2 deposited the $38 check in the bank on September 5, 1958; and on September 8, 1958, by official receipt it credited the Morro Rock Mutual Water Co. with receiving $8 (Ex. 8-C).

Count IX charged an appropriation of $30 to defendant's own use on December 2, 1958. The evidence shows that an official County claim with an invoice from Waterworks District No. 2 purportedly signed by Byars, dated November 13, 1958, in the sum of $63.51, (Ex. 9-A) attached thereto, was received in the office of the County Auditor; in payment thereof, a county warrant in the sum of $63.51 was drawn December 1, 1958, in favor of Waterworks District No. 2, (Ex. 9-B); an official receipt (Ex. 9-C) credited the County with $33.51 December 2, 1958; and the $63.51 Warrant was deposited in the bank December 4, 1958.

In connection with Count X accusing Byars of appropriating $5 to the use of another, the evidence discloses that Noyes Realty Co. received an invoice on December 9, 1958, for $9 from Waterworks District No. 2 (Ex. 10-A); that it paid the same by check dated April 17, 1958, in the sum of $9 (Ex. 10-B) which was deposited in the bank by Waterworks District No. 2, April 21, 1959, (Ex. 10-D); and that it credited Noyes Realty Co. with receipt of $4 on April 20, 1958, (Ex. 10-C).

In connection with Count XI, charging defendant with appropriating $30 for his own use on September 21, 1959, Albert Steinhauer testified that for $100 he bought wood from an old tank from Waterworks District No. 2 and paid for it by a $100 check dated September 21, 1959, payable to Bob Byars, later stamp endorsed by Waterworks District No. 2 (Ex. 11-A), which check was deposited in the bank by it on September 23, 1959, (Ex. 11-D); he said he was never given an invoice therefor, although an invoice (Ex. 11-B) in the official file discloses 'Albert Steinhauer, Wood from old tank $70.00'; and an official 'miscellaneous receipt' shows the Waterworks District No. 2 credited him with $70 (Ex. 11-C) on September 21, 1959.

In support of Count XII charging defendant with the appropriating of $116.28 to his own use on July 19, 1957, the testimony shows that Rene Simonin was billed on July 5, 1957, for $116.28, by Waterworks District No. 2 (Ex. 12-A) and that he paid the amount by check on July 5, 1957, which was...