G.R. No.

6295 September 1, 1911

THE UNITED STATES, plaintiff-appellee,

A. D. Gibbs for appellant.

PER CURIAM:The information filed in this case is as follows:

The undersigned accuses Ignacio Carlos of the crime of theft, committed as follows:

That on, during, and between the 13th day of February, 1909, and the 3d day of March, 1910, in the city of
Manila, Philippine Islands, the said Ignacio Carlos, with intent of gain and without violence or intimidation
against the person or force against the thing, did then and there, willfully, unlawfully, and feloniously, take,
steal , and carry away two thousand two hundred and seventy-three (2,273) kilowatts of electric current, of
the value of nine hundred and nine (909) pesos and twenty (20) cents Philippine currency, the property of
the Manila Electric Railroad and Light Company, a corporation doing business in the Philippine Islands,
without the consent of the owner thereof; to the damage and prejudice of the said Manila Electric Railroad
and Light Company in the said sum of nine hundred and nine (909) pesos and twenty (20) cents Philippine
currency, equal to and equivalent of 4,546 pesetas Philippine currency. All contrary to law.

(Sgd.) L. M. SOUTWORTH,
Prosecuting Attorney.

Subscribed and sworn to before me this 4th day of March, 1910, in the city of Manila, Philippine Islands,
by L. M. Southworth, prosecuting attorney for the city of Manila.

(Sgd.) CHARLES S. LOBINGIER,

A preliminary investigation has heretofore been conducted in this case, under my direction, having
examined the witness under oath, in accordance with the provisions of section 39 of Act No. 183 of the
Philippine Commission, as amended by section 2 of Act No. 612 of the Philippine Commission.

(Sgd) L. M. SOUTHWORTH,
Prosecuting Attorney.

Subscribed and sworn to before me this 4th day of March, 1910, in the city of Manila, Philippine Islands,
by L. M. Southworth, prosecuting attorney for the city of Manila.

(Sgd.) CHARLES LOBINGIER,

A warrant for the arrest of the defendant was issued by the Honorable J. C. Jenkins on the 4th of March and
placed in the hands of the sheriff. The sheriff's return shows that the defendant gave bond for his appearance.
On the 14th of the same month counsel for the defendant demurrer to the complaint on the following grounds:

1 That the court has no jurisdiction over the person of the accused nor of the offense charged because the
accused has not been accorded a preliminary investigation or examination as required by law and no court,
 magistrate, or other competent authority has determined from a sworn complaint or evidence adduced that
there is probable cause to believe that a crime has been committed, or that this defendant has committed
any crime.

2 That the facts charged do not constitute a public offense.

The demurrer was overruled on the same day and the defendant having refused to plead, a plea of not guilty was
entered by direction of the court for him and the trial proceeded.

After due consideration of all the proofs presented and the arguments of counsel the trial court found the
defendant guilty of the crime charged and sentenced him to one year eight months and twenty-one days'
presidio correccional, to indemnify the offended party, The Manila Electric Railroad and Light Company, in the
sum of P865.26, to the corresponding subsidiary imprisonment in case of insolvency and to the payment of the
costs. From this judgment the defendant appealed and makes the following assignments of error:

I.

The court erred in overruling the objection of the accused to the jurisdiction of the court, because he was
not given a preliminary investigation as required by law, and in overruling his demurrer for the same
reason.

II.

The court erred in declaring the accused to be guilty, in view of the evidence submitted.

III.

The court erred in declaring that electrical energy may be stolen.

IV.

The court erred in not declaring that the plaintiff consented to the taking of the current.

V.

The court erred in finding the accused guilty of more than one offense.

VI.

The court erred in condemning the accused to pay P865.26 to the electric company as damages.

Exactly the same question as that raised in the first assignment of error, was after a through examination and
due consideration, decided adversely to appellant's contention in the case of U. S. vs. Grant and Kennedy (18
Phil. Rep., 122). No sufficient reason is presented why we should not follow the doctrine enunciated in that
case.

The question raised in the second assignment of error is purely one fact. Upon this point the trial court said:

For considerably more than a year previous to the filing of this complaint the accused had been a consumer
of electricity furnished by the Manila Electric Railroad and Light Company for a building containing the
residence of the accused and three other residences, and which was equipped, according to the defendant's
testimony, with thirty electric lights. On March 15, 1909, the representatives of the company, believing that
more light was being used than their meter showed, installed an additional meter (Exhibit A) on a pole
outside of defendant's house, and both it and the meter (Exhibit B) which had been previously installed in
the house were read on said date. Exhibit A read 218 kilowatt hours; Exhibit B, 745 kilowatt hours. On
March 3, 1910 each was read again, Exhibit A showing 2,718 kilowatt hours and Exhibit B, 968. It is
undisputed that the current which supplied the house passed through both meters and the city electrician
testifies that each meter was tested on the date of the last reading and was "in good condition." The result of
this registration therefore is that while the outsider meter (Exhibit A) showed a consumption in defendant's
building of 2,500 kilowatt hours of electricity, this inside meter (Exhibit B) showed but 223 kilowatt hours.
In other words the actual consumption, according to the outside meter, was more than ten times as great as
that registered by the one inside. Obviously this difference could not be due to normal causes, for while the
electrician called by the defense (Lanusa) testifies to the possibility of a difference between two such
meters, he places the extreme limit of such difference between them 5 per cent. Here, as we have seen, the
difference is more than 900 per cent. Besides, according to the defendant's electrician, the outside meter
should normally run faster, while according to the test made in this case the inside meter (Exhibit B) ran the
faster. The city electrician also testifies that the electric current could have been deflected from the inside
meter by placing thereon a device known as a "jumper" connecting the two outside wires, and there is other
testimony that there were marks on the insulation of the meter Exhibit B which showed the use of such a
device. There is a further evidence that the consumption of 223 kilowatt hours, registered by the inside
meter would not be a reasonable amount for the number of lights installed in defendant's building during
the period in question, and the accused fails to explain why he should have had thirty lights installed if he
needed but four or five.

On the strength of this showing a search warrant was issued for the examination of defendant's premises
and was duly served by a police officer (Hartpence). He was accompanied at the time by three employees
of the Manila Electric Railroad and Light Company, and he found there the accused, his wife and son, and
perhaps one or two others. There is a sharp conflict between the several spectators on some points but on
one there is no dispute. All agree that the "jumper" (Exhibit C) was found in a drawer of a small cabinet in
the room of defendant's house where the meter was installed and not more than 20 feet therefrom. In the
absence of a satisfactory explanation this constituted possession on defendant's part, and such possession,
under the Code of Civil Procedure, section 334 (10), raises the presumption that the accused was the owner
of a device whose only use was to deflect the current from the meter.

Is there any other "satisfactory explanation" of the "jumper's" presence? The only one sought to be offered
is the statement by the son of the accused, a boy of twelve years, that he saw the "jumper" placed there by
the witness Porter, an employee of the Light Company. The boy is the only witness who so testifies and
Porter himself squarely denies it. We can not agree with counsel for the defense that the boy's interest in the
outcome of this case is less than that of the witness for the prosecution. It seems to us that his natural desire
to shield his father would far outweight any interest such an employee like Porter would have and which, at
most, would be merely pecuniary.

There is, however, one witness whom so far as appears, has no interest in the matter whatsoever. This is
officer Hartpence, who executed the search warrant. He testifies that after inspecting other articles and
places in the building as he and the other spectators, including the accused, approached the cabinet in which
the "jumper" was found, the officer's attention was called to the defendant's appearance and the former
noticed that the latter was becoming nervous. Where the only two witnesses who are supposed to know
anything of the matter thus contradict each other this item of testimony by the officer is of more than
ordinary significance; for if, as the accused claims, the "jumper" was placed in the cabinet for the first time
by Porter there would be no occasion for any change of demeanor on the part of the accused. We do not
think that the officer's declination to wait until defendant should secure a notary public shows bias. The
presence of such an official was neither required nor authorized by law and the very efficacy of a search
depends upon its swiftness.
 We must also agree with the prosecuting attorney that the attending circumstances do not strengthen the
story told by the boy; that the latter would have been likely to call out at the time he saw the "jumper" being
placed in the drawer, or at least directed his father's attention to it immediately instead of waiting, as he
says, until the latter was called by the officer. Finally, to accept the boy's story we must believe that this
company or its representatives deliberately conspired not merely to lure the defendant into the commission
of a crime but to fasten upon him a crime which he did not commit and thus convict an innocent man by
perjured evidence. This is a much more serious charge than that contained in the complaint and should be
supported by very strong corroborating circumstances which we do not find here. We are, accordingly,
unable to consider as satisfactory defendant's explanation of the "jumper's" presence.

The only alternative is the conclusion that the "jumper" was placed there by the accused or by some one
acting for him and that it was the instrument by which the current was deflected from the matter Exhibit B
and the Light Company deprived of its lawful compensation.

After a careful examination of the entire record we are satisfied beyond peradventure of a doubt that the proofs
presented fully support the facts as set forth in the foregoing finding.

Counsel for the appellant insists that the only corporeal property can be the subject of the crime of larceny, and
in the support of this proposition cites several authorities for the purpose of showing that the only subjects of
larceny are tangible, movable, chattels, something which could be taken in possession and carried away, and
which had some, although trifling, intrinsic value, and also to show that electricity is an unknown force and can
not be a subject of larceny.

In the U. S. vs. Genato (15 Phi. Rep., 170) the defendant, the owner of the store situated at No. 154 Escolta,
Manila, was using a contrivance known as a "jumper" on the electric meter installed by the Manila Electric
Railroad and the Light Company. As a result of the use of this "jumper" the meter, instead of making one
revolution in every four seconds, registered one in seventy-seven seconds, thereby reducing the current
approximately 95 per cent. Genato was charged in the municipal court with a violation of a certain ordinance of
the city of Manila, and was sentenced to pay a fine of P200. He appealed to the Court of First Instance, was
again tried and sentenced to pay the same fine. An appeal was taken from the judgment of the Court of First
Instance to the Supreme Court on the ground that the ordinance in question was null and void. It is true that the
only question directly presented was of the validity of the city ordinance. The court, after holding that said
ordinance was valid, said:

Even without them (ordinances), the right of ownership of electric current is secured by articles 517 and
518 of the Penal Code; the application of these articles in case of subtraction of gas, a fluid used for
lighting, and in some respects resembling electricity, is confirmed by the rule laid down in the decisions of
the supreme court of Spain January 20, 1887, and April 1, 1897, construing and enforcing the provisions of
articles 530 and 531 of the penal code of that country, articles identical with articles 517 and 518 of the
code in force in these Islands.

Article 517 of the Penal Code above referred to reads as follows:

The following are guilty of larceny:

(1) Those who with intent of gain and without violence or intimidation against the person, or force against
things, shall take another's personal property without the owner's consent.

And article 518 fixes the penalty for larceny in proportion to the value of the personal property stolen.

It is true that electricity is no longer, as formerly, regarded by electricians as a fluid, but its manifestation and
effects, like those of gas, may be seen and felt. The true test of what is a proper subject of larceny seems to be
not whether the subject is corporeal, but whether it is capable of appropriation by another than the owner.

It is well-settled that illuminating gas may be the subject of larceny, even in the absence of a statute so
providing. (Decisions of supreme court of Spain, January 20, 1887, and April 1, 1897, supra; also (England)
Queen vs. Firth, L. R. 1 C. C., 172, 11 Cox C. C., 234; Queen vs. White, 3 C. & K., 363, 6 Cox C. C., 213;
Woods vs. People, 222 III., 293, 7 L. R. A., 520; Commonwealth vs. Shaw, 4 Allen (Mass), 308; State vs.
Wellman, 34 Minn., 221, N. W. Rep., 385, and 25 Cyc., p. 12, note 10.)

In the case of Commonwealth vs. Shaw, supra, the court, speaking through Chief Justice Bigelow, said:

There is nothing in the nature of gas used for illuminating purposes which renders it incapable of being
feloniously taken and carried away. It is a valuable article of merchandise, bought and sold like other
personal property, susceptible of being severed from a mass or larger quantity, and of being transported
from place to place. In the present case it appears that it was the property of the Boston Gas Light
Company; that it was in their possession by being confined in conduits and tubes which belonged to them,
and that the defendant severed a portion of that which was in the pipes of the company by taking it into her
house and there consuming it. All this being proved to have been done by her secretly and with intent to
deprive the company of their property and to appropriate it to her own use, clearly constitutes the crime of
larceny.

Electricity, the same as gas, is a valuable article of merchandise, bought and sold like other personal property
and is capable of appropriation by another. So no error was committed by the trial court in holding that
electricity is a subject of larceny.

It is urged in support of the fourth assignment of error that if it be true that the appellant did appropriate to his
own use the electricity as charged he can not be held guilty of larceny for any part of the electricity thus
appropriated, after the first month, for the reason that the complaining party, the Manila Electric Road and Light
Company, knew of this misappropriation and consented thereto.

The outside meter was installed on March 15, 1909, and read 218 kilowatt hours. On the same day the inside
meter was read and showed 745 kilowatt hours. Both meters were again read on March 3, 1910, and the outside
one showed 2,718 kilowatt hours while the one on the inside only showed 968, the difference in consumption
during this time being 2,277 kilowatt hours. The taking of this current continued over a period of one year, less
twelve days. Assuming that the company read both meters at the end of each month; that it knew the defendant
was misappropriating the current to that extent; and that t continued to furnish the current, thereby giving the
defendant an opportunity to continue the misppropriation, still, we think, that the defendant is criminally
responsible for the taking of the whole amount, 2,277 kilowatt hours. The company had a contract with the
defendant to furnish him with current for lighting purposes. It could not stop the misappropriation without
cutting off the current entirely. It could not reduce the current so as to just furnish sufficient for the lighting of
two, three, or five lights, as claimed by the defendant that he used during the most of this time, but the current
must always be sufficiently strong to furnish current for the thirty lights, at any time the defendant desired to
use them.

There is no pretense that the accused was solicited by the company or any one else to commit the acts charged.
At most there was a mere passive submission on the part of the company that the current should be taken and no
indication that it wished it to be taken, and no knowledge by the defendant that the company wished him to take
the current, and no mutual understanding between the company and the defendant, and no measures of
inducement of any kind were employed by the company for the purpose of leading the defendant into
temptation, and no preconcert whatever between him and company. The original design to misappropriate this
current was formed by the defendant absolutely independent of any acts on the part of the company or its
agents. It is true, no doubt, as a general proposition, that larceny is not committed when the property is taken
with the consent of its owner. It may be difficult in some instances to determine whether certain acts constitute,
in law, such "consent." But under the facts in the case at bar it is not difficult to reach a conclusion that the acts
performed by the plaintiff company did not constitute a consent on its part the defendant take its property. We
have been unable to find a well considered case holding contrary opinion under similar facts, but, there are
numerous cases holding that such acts do not constitute such consent as would relieve the taker of criminal
responsibility. The fourth assignment of error is, therefore, not well founded.

It is also contended that since the "jumper" was not used continuously, the defendant committed not a single
offense but a series of offenses. It is, no doubt, true that the defendant did not allow the "jumper" to remain in
place continuously for any number of days as the company inspected monthly the inside meter. So the "jumper"
was put on and taken off at least monthly, if not daily, in order to avoid detection, and while the "jumper" was
off the defendant was not misappropriating the current. The complaint alleged that the defendant did on, during,
and between the 13th day of February, 1909, and the 3d of March, 1910. willfully, unlawfully, and feloniously
take, steal, and carry away 2,277 kilowatts of electric current of the value of P909. No demurrer was presented
against this complaint on the ground that more than one crime was charged. The Government had no
opportunity to amend or correct this error, if error at all. In the case of U. S. vs. Macaspac (12 Phil. Rep., 26),
the defendant received from one Joquina Punu the sum of P31.50, with the request to deliver it to Marcelina
Dy-Oco. The defendant called upon Marcelina, but instead of delivering the said amount she asked Marcelina
for P30 in the name of Joaquina who had in no way authorized her to do so. Marcelina gave her P30, believing
that Joaquina had sent for it. Counsel for the defendant insisted that the complaint charged his client with two
different crimes of estafa in violation of section 11 of General Orders, No. 58. In disposing of this question this
court said:

The said defect constitutes one of the dilatory pleas indicated by section 21, and the accused ought to have
raised the point before the trial began. Had this been done, the complaint might have been amended in time,
because it is merely a defect of form easily remedied. . . . Inasmuch as in the first instance the accused did
not make the corresponding dilatory plea to the irregularity of the complaint, it must be understood that has
waived such objection, and is not now entitled to raise for the first time any question in reference thereto
when submitting to this court her assignment of errors. Apart from the fact that the defense does not pretend
that any of the essential rights of the accused have been injured, the allegation of the defect above alluded
to, which in any case would only affect form of the complaint, can not justify a reversal of the judgment
appealed from, according to the provisions of section 10 of General Orders, No. 58.

In the case at bar it is not pointed out wherein any of the essential rights of the defendant have been prejudiced
by reason of the fact that the complaint covered the entire period. If twelve distinct and separate complaints had
been filed against the defendant, one for each month, the sum total of the penalties imposed might have been
very much greater than that imposed by the court in this case. The covering of the entire period by one charge
has been beneficial, if anything, and not prejudicial to the rights of the defendant. The prosecuting attorney
elected to cover the entire period with one charge and the accused having been convicted for this offense, he can
not again be prosecuted for the stealing of the current at any time within that period. Then, again, we are of the
opinion that the charge was properly laid. The electricity was stolen from the same person, in the same manner,
and in the same place. It was substantially one continuous act, although the "jumper" might have been removed
and replaced daily or monthly. The defendant was moved by one impulse to appropriate to his own use the
current, and the means adopted by him for the taking of the current were in the execution of a general fraudulent
plan.

A person stole gas for the use of a manufactory by means of pipe, which drew off the gas from the main
without allowing it to pass through the meter. The gas from this pipe was burnt every day, and turned off at
night. The pipe was never closed at this junction with the main, and consequently always remained full of
gas. It was held, that if the pipe always remained full, there was, in fact, a continuous taking of the gas and
not a series of separate talkings. It was held also that even if the pipe had not been kept full, the taking
 would have been continuous, as it was substantially all one transaction. (Regina vs. Firth, L. R., 1 C. C.,
172; 11 Cox C. C., 234. Cited on p. 758 of Wharton's Criminal Law, vol. 1, 10th ed.)

The value of the electricity taken by the defendant was found by the trial court to be P865.26. This finding is
fully in accordance with the evidence presented. So no error was committed in sentencing the defendant to
indemnify the company in this amount, or to suffer the corresponding subsidiary imprisonment in case of
insolvency.

The judgment being strictly in accordance with the law and the merits of the case, same is hereby affirmed, with
costs against the appellant.