Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 6295 September 1, 1911

THE UNITED STATES, plaintiff-appellee,

vs.
IGNACIO CARLOS, defendant-appellant.

A. D. Gibbs for appellant.

Acting Attorney-General Harvey for appellee.

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,

Judge, First Instance.

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,

Judge, First Instance.

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.

Arellano, C.J., Torres, Mapa and Carson, JJ.

Separate Opinions

MORELAND, J., dissenting:

I feel myself compelled to dissent because, in my judgment, there is no evidence before this
court, and there was none before the court below, establishing the most essential element of the
crime of larceny, namely, the taking without the consent of the owner. As I read the record, there
is no evidence showing that the electricity alleged to have been stolen was taken without the
consent of the complaining company. The fact is that there was not a witness who testified for
the prosecution who was authorized in law, or who claimed to be authorized in fact, to testify as
to whether or not the alleged taking of the electricity was without the consent of the company or,
even that said company had not been paid for all electricity taken. Not one of them was, as a
matter of law, competent to either of those facts. Not one of them was an officer of the company.
The leading witness for the people, Kay, was only an inspector of electric lights. Another,
McGeachim was an electrical engineer in the employ of the company. Another, Garcia, was an
electrician of the company. These witness all confined their testimony to technical descriptions
of meters, their nature and function, of electric light wires, the writing of defendant's house, the
placing of a meter therein, the placing of the meter outside of the house in order to detect, by
comparing the readings of the two, whether the accused was actually using more electricity than
the house meter registered, the discovery that more electricity was being used than said meter
registered, and of the finding of a "jumper" in defendant's possession. One of these witnesses
testified also that he had suspected for a long time that the accused was "stealing" electricity and
that later he was "positive of it."

In order to sustain a charge of larceny under section 517 of Penal Code, it is necessary to prove
that there was a taking without the consent of the owner. This is unquestioned. The question is:
Has the prosecution proved that fact? Has it proved that the electricity alleged to have been
stolen was used without the consent of the company? Has it proved that the accused did not have
a right to use electricity whether it went through the meter or not? Has it proved, even, that the
accused did not have a right to use a "jumper?" Has it been proved that the company has not been
fully paid for all the electricity which defendant used, however obtained? Not one of these facts
has been proved. The only way to determine those questions was to ascertain the relations which
existed between the accused and the company at the time the electricity alleged to have been
stolen was used by the accused. There was certainly some relation, some contract, either express
or implied, between the company and the accused or the company would not have been
supplying him the electric current. What was that relation, that contract? No one can possibly tell
by reading the record. There is not a single word in all the evidence even referring to it. Not one
of the people's witnesses mentioned it. Not one of them, very likely, knew what it really was. The
relation which a corporation bears to private persons for whom they are rendering service is
determined by the corporation itself through the acts of its officials, and not by its employees.
While an employee might, as the act of a servant, have caused the contract between the company
and the accused to be signed by the accused, it was nevertheless a contract determined and
prepared by the company through its officers and not one made by the employee; and unless the
employee actually knew the terms of the contract signed by the accused, either by having read it,
if in writing, or by having heard it agreed upon, if verbal, he would not be competent to testify to
its terms except rendered so by admission of the party to be charged by it. It nowhere appears
that any of the witnesses for the prosecution had any knowledge whatever of the terms of the
contract between the company and the accused. It does not appear that any of them had ever seen
it or heard it talked about by either party thereto. The company has offered no testimony
whatever on the matter. The record is absolutely silent on that point.

This being true, how can we say that the accused committed a crime? How can we say that a
given act is criminal unless we know the relation of the parties to whom the act refers? Are we to
presume an act wrong when it may be right? Are we to say that the accused committed a wrong
when we do not know whether he did or not? If we do not know the arrangements under which
the company undertook to furnish electricity to the defendant, how do we know that the accused
has not lived up to them? If we do not know their contract, how do we know that the accused
violated it?

It may be urged that the very fact that a meter was put in by the company is evidence that it was
for the company's protection. This may be true. But is it not just as proper to presume that it was
put in for defendant's protection also? Besides, it does not appear that the company really put in
the matter, nor does not appear that the company really put in the meter, nor does it even appear
to whom it belonged. No more does it appear on whose application it was put in. The witness
who installed the meter in defendant's house did not say to whom it belonged and was unable to
identify the one presented by the prosecution on the trial as the one he installed. But however
these things may be, courts are not justified in "assuming" men into state prison. The only
inferences that courts are justified in drawing are those springing from facts which are not only
proved but which are of themselves sufficient to warrant the inference. The mere fact, it is a fact,
that the company placed a meter in defendant's house is not sufficient to sustain the conclusion in
a criminal case that the defendant did not have the right to use electricity which did not have the
right to use electricity which did not pass through the meter. Much less would it warrant the
inference that, in so using electricity, the defendant feloniously and criminally took, sole, and
carried it away without the consent of the company. An accused is presumed innocent until
contrary is proved. His guilt must be established beyond a reasonable doubt. It is incumbent on
the state to prove every fact which is essential to the guilt of the accused, and to prove every such
fact as though the whole issue rested on it. The evidence of the prosecution must exclude every
reasonable hypothesis of innocence as with his guilt, he can not be convicted.

But what was the necessity of all this uncertainty? What was the force which prevented the
company from proving clearly and explicitly the contract between itself and the accused? What
prevented it from proving clearly, explicitly, and beyond all cavil that the electricity was taken
(used) without its consent? Why did not some competent official testify? Why did the company
stand by wholly silent? Why did it leave its case to be proved by servants who were competent to
testify, and who did actually testify, so far as legal evidence goes, only in relation to technical
matters relating to meters and electric currents? Why did the prosecution place upon this court
the necessity of deducing and inferring and concluding relative to the lack of consent of the
company when a single word from the company itself would have avoided that necessity? We
have only one answer to all these questions: We do not know.

In the case of Bubster vs. Nebraska (33 Neb., 663), the accused was charged with the larceny of
buggy of the value of $75. He was found guilty. On appeal the judgment of conviction was
reversed, the court saying:

There are two serious objections to this verdict. First, the owner of the buggy, although
apparently within reach of the process of the court, was not called as a witness. Her son-
in-law, who resided with her, testifies that he did not give his consent, and very freely
testifies that his mother-in-law did not. She was within reach of the process of the court
and should have been called as a witness to prove her nonconsent.

The rule is very clearly stated in note 183, volume 1, Philips on Evidence (4th Am. ed.).
A conviction of larceny ought not to be permitted or sustained unless it appears that the
property was taken without the consent of the owner, and the owner himself should be
called, particularly in a case like that under consideration, when the acts complained of
may be consistent with the utmost goodfaith. There is a failure of proof therefore on this
point.

In the case of State vs. Moon (41 Wis., 684), the accused was charged with the larceny of a mare.
He was convicted. On appeal the court reversed the judgment of conviction, saying:

In State vs. Morey (2 Wis., 494) it was held that in prosecutions of lacerny, if the owner
of the property alleged to have been stolen is known, and his attendance as a witness can
be procured, his testimony that the property was taken from him without his consent is
indispensable to a conviction. This is upon the principle that his testimony is the primary
and the best evidence that the property was taken without his consent, and hence, that
secondary evidence of the fact cannot be resorted to, until the prosecution shows it
inability, after due diligence, to procure the attendance of the owner.

In volume 1, Phillips on Evidence (5th Am., ed., note 183 sec. 635), the author says:

In all cases, and especially in this, the lacerny itself must be proved by the evidence the
nature of the case admits. . . . This should be by the testimony of the owner himself if the
property was taken from his immediate possession, or if from the actual possession of
another, though a mere servant or child of the owner, that the immediate possession was
violated, and this, too, without the consent of the person holding it. Where nonconsent is
an essential ingredient in the offense, as it is here, direct proof alone, from the person
whose nonconsent is necessary, can satisfy the rule. You are to prove a negative, and the
very person who can swear directly to the necessary negative must, if possible, always be
produced. (Citing English authorities.) Other and inferior proof cannot be resorted to till
it be impossible to procure this best evidence. If one person be dead who can swear
directly to the negative, and another be alive who can yet swear to the same thing, he
 must be produced. In such cases, mere presumption, prima facie or circumstantial
evidence is secondary in degree, and cannot be used until all the sources of direct
evidence are exhausted.

I quote these authorities not because I agree with the doctrine as therein set forth. I quote them
because there is a principle inherent in the doctrine laid down which is recognized by all courts
as having value and effect. It is this: Failure to call an available witness possessing peculiar
knowledge concerning facts essential to a party's case, direct or rebutting, or to examine such
witness as to facts covered by his special knowledge, especially if the witness be naturally
favorable to the party's contention, relying instead upon the evidence of witnesses less familiar
with the matter, gives rise to an inference, sometimes denominated a strong presumption of law,
that the testimony of such uninterrogated witness would not sustain the contention of the party.
Where the party himself is the one who fails to appear or testify, the inference is still stronger.
The nonappearance of a litigant or his failure to testify as to facts material to his case and as to
which he has especially full knowledge creates an inference that he refrains from appearing or
testifying because the truth, if made to appear, would not aid his contention; and, in connection
with an equivocal statement on the other side, which if untrue could be disapproved by his
testimony, often furnishes strong evidence of the facts asserted. As to this proposition the
authorities are substantially uniform. They differ only in the cases to which the principles are
applied. A substantially full list of the authorities is given in 16 Cyclopedia of Law and
Procedure (pp. 1062 to 1064, inclusive) from which the rules as stated above are taken.

This court has recognized the value of this principle and has permitted it strongly to influence its
view of the evidence in certain cases. In the case of United States vs. Magsipoc (20 Phil. Rep.,
604) one of the vital facts which the prosecution was required to establish in order to convict the
accused was that a certain letter which the accused alleged he mailed to his daughter, who was
attending a boarding school in Iloilo, and which the daughter testified she had received, had not
really been sent by the accused and received by the daughter but, instead, had been purloined by
him from the post-office after he had duly placed it therein and after it had been taken into
custody and control of the postal authorities. It was conceded that the directress of the boarding
school which the daughter was at the time attending knew positively whether the daughter was at
the time attending knew positively whether the daughter had received the letter in question or
not. This court held that, in weighing the evidence, it would take into consideration the failure of
the prosecution to produce the directress of the school as a witness in the case, she being the only
person, apart from the daughter herself, who really knew the fact.

Another those cases was that of U. S. vs. Casipong (20 Phil. Rep., 178) charged with maintaining
a concubine outside his home with public scandal. To prove the scandalous conduct charged and
its publicity, the prosecution introduced testimony, not of witnesses in the vicinity where the
accused resided and where the scandal was alleged to have occurred, but those from another
barrio. No Witness living in the locality where the public scandal was alleged to have occurred
was produced. This court, in the decision of that case on appeal, allowed itself, in weighing the
evidence of the prosecution, to be strongly influenced by the failure to produce as witnesses
persons who, if there had really been public scandal, would have been the first, if not the only
ones, to know it. The court said:
 In this case it would have been easy to have submitted abundant evidence that Juan
Casipong forsook his lawful wife and lived in concubinage in the village of Bolocboc
with his paramour Gregoria Hongoy, for there would have been an excess of witnesses to
testify regarding the actions performed by the defendants, actions not of isolated
occurrence but carried on for many days in slight of numerous residents scandalized by
their bad example. But it is impossible to conclude from the result of the trial that the
concubinage with scandal charged against the defendants has been proved, and therefore
conviction of the alleged concubine Gregoria Hongoy is not according to law.

In the case at bar the question of the consent of the company to the us of the electricity was the
essence of the charge. The defendant denied that he had taken the electricity without the consent
of the company. The prosecution did not present any officer of the corporation to offset this
denial and the company itself, although represented on the trial by its own private counsel, did
not produce a single witness upon that subject.

In the case of Standard Oil Co. vs. State (117 Tenn., 618), the court (p.672) said:

But the best evidence of what his instructions to Holt were and the information he had of
the transaction at the time was made were the letters which he wrote to Holt directing him
to go to Gallatin, and the daily and semi-weekly reports made to him by Holt and
Rutherford of what was done there, which were not produced, although admitted to be
then in his possession. He was aware of the value of such evidence, as he produced a
copy of his letter to Holt, condemning the transaction, as evidence in behalf of the
plaintiffs in error. The presumption always is that competent and pertinent evidence
within the knowledge or control of a party which he withholds is against his interest and
insistence. (Dunlap vs. Haynes, 4 Heisk., 476; Kirby vs. Tallmadge, 160 U. S., 379, 16
Sup. Ct., 349, 40 L. ed., 463; Pacific Constr. Co. vs. B. W. Co., 94 Fed,, 180, 36 C. C. A.,
153)

In the case of Succession of Drysdale (127 La., 890), the court held:

When a will presented for probate is attacked on the ground that it is a forgery, and there
are pertinent facts relating to the will in the possession of the proponent, and he
repeatedly fails to testify when his testimony could clear up many clouded and doubtful
things, his failure to testify casts suspicion upon the will, especially when the one asking
for the probate of the will is a principal legatee.

In the case of Belknap vs. Sleeth (77 Kan., 164), the court (p. 172) said:

What effect should such conduct have in the consideration of a case, where the successful
party thus living beyond the jurisdiction of the court has refused to testify in a material
matter in behalf of the opposing party? It must be conceded that the benefit of all
reasonable presumptions arising from his refusal should be given to the other party. The
conduct of a party in omitting to produce evidence peculiarly within his knowledge
frequently affords occasion for presumptions against him. (Kirby vs. Tallmadge, 160 U.
S., 379, 16 Sup. Ct., 349, 14 L. Ed., 463.) This rule has been often applied where a party
 withholds evidence within his exclusive possession and the circumstances are such as to
impel an honest man to produce the testimony. In this case the witness not only failed but
refused to testify concerning material matters that must have been within his knowledge.

In the case of Heath vs. Waters (40 Mich., 457), it was held that:

It is to be presumed that when a witness refuses to explain what he can explain, the
explanation would be to his prejudice.

In case of Frick vs. Barbour (64 Pa. St., 120, 121), the court said:

It has been more than once said that testimony in a case often consists in what is not
proved as well as in what is proved. Where withholding testimony raises a violent
presumption that a fact not clearly proved or disproved exists, it is not error to allude to
the fact of withholding, as a circumstance strengthening the proof. That was all that was
done here.

In the case of Funda vs. St. Paul City Railway Co. (71 Minn., 438), the court held:

The defendant having omitted to call its motorman as a witness, although within reach
and available, the court was, under the circumstances, justified in instructing the jury that,
in weighing the effect of the evidence actually introduced, they were at liberty to presume
that the testimony of the motorman, if introduced, would not have been favorable to the
cause of defendant.

In the case of Gulf, C. & S. F. Ry. Co. vs. Ellis (54 Fed. Rep., 481), the circuit court of appeals
held that:

Failure to produce the engineer as a witness to rebut the inferences raised by the
circumstancial evidence would justify the jury in assuming that his evidence, instead of
rebutting such inference, would support them.

In Wigmore on Evidence (vol. 1, sec. 285), it is said:

The consciousness indicated by the conduct may be, not an indefinite one affecting the
weakness of the cause at large, but a specific one concerning the defects of a particular
element in the cause. The failure to bring before the tribunal some circumstances,
document, or witness, when either the party himself or his opponent claims that the facts
would thereby be elucidated, serves to indicate, as the most natural inference, that the
party fears to do so, and this fear is some evidence that circumstances or document or
witness, if brought, would have exposed facts unfavorable to the party. These inferences,
to be sure, cannot fairly be made except upon certain conditions; and they are also open
always to explanation by circumstances which make some other hypothesis a more
natural one than the party's fear of exposure. But the propriety of such an inference in
general is not doubted. The nonproduction of evidence that would naturally have been
 produced by an honest and therefore fearless claimant permits the inference that its tenor
is unfavorable to the party's cause. . . .

Continuing this same subject the same author says:

At common law the party-opponent in a civil case was ordinarily privileged from taking
the stand (post, sec. 2217); but he was also disqualified; and hence the question could
rarely arise whether his failure to testify could justify any inference against him. But
since the general abolition of both of the privilege and the disqualification (post, secs.
2218, 577), the party has become both competent and compellable like other witnesses;
and the question plainly arises whether his conduct is to be judged by the same standards
of inference. This question naturally be answered in the affirmative. . . . (See Aragon
Coffee Co., vs. Rogers, 105 Va., 51.)

As I stated at the outset, I have been unable to find in the record of this case any proof of legal
value showing or tending to show that the electricity alleged to have been stolen was taken or
used without the consent of the company. The defendant, therefore, should be acquitted.

There are other reasons why I cannot agree to the conviction of the accused. Even though the
accused to be found to have committed the acts charged against him, it stands conceded in this
case that there is a special law passed particularly and especially to meet cases of this very kind,
in which the offense is mentioned by name and described in detail and is therein made a
misdemeanor and punished as such. It is undisputed and admitted that heretofore and ever since
said act was passed cases such as the one at bar have uniformly and invariably been cognized
and punished under said act; and that this is the first attempt ever made in these Islands to
disregard utterly the plain provisions of this act, and to punish this class of offenses under the
provisions of Penal Code relating to larceny. The applicability of those provisions is, to say the
very least, extremely doubtful, even admitting that they are still in force. Even though originally
applicable, these provisions must now be held to be repealed by implication, at least so far as the
city of Manila is concerned, by the passage of the subsequent act defining the offense in question
and punishing it altogether differently.

Moreover, I do not believe that electricity, in the for in which it was delivered to the accused, is
susceptible of being stolen under the definition given by the law of these Islands to the crime of
larceny.

Concisely, then, I dissent because (a) this court, by its decision in this case, has, in my judgment,
disregarded the purpose of the Legislature, clearly expressed; because (b) it has applied a general
law, of at least very doubtful application, to a situation completely dealt with, and admittedly so
by a later statute conceived and enacted solely and expressly to cover that very situation; because
(c) the court makes such application in spite of the fact that, under the general law, if it is
applicable, the crime in hand is a felony while under the later statute it is only a misdemeanor;
because (d), in my judgment, the court modifies the definition given by the Legislature to the
crime of lacerny, which has been the same and has received the same interpretation in this
country and in Spain for more than two centuries; because (e) the decision disregards, giving no
importance to a positive statute which is not only the last expression of the legislative will on the
particular subject in hand, but was admittedly passed for the express purpose of covering the
very situation to which the court refuses to apply it. While the statute referred to is an act of the
Municipal Board of the city of Manila, this court has held in a recent case that said board was
authorized by the legislature to pass it. Therefore it is an Act of the Legislature of the Philippine
Islands.

In this dissent I shall assert, and, I think, demonstrate three propositions, to wit:

First. That an electric current is not a tangible thing, a chattel, but is a condition, a state in which
a thing or chattel finds itself; and that a condition or state can not be stolen independently of the
thing or chattel of which it is a condition or state. That it is chattels which are subjects of lacerny
and not conditions.

Second. That, even if an electric current is a tangible thing, a chattel, and capable of being stolen,
in the case at bar no electric current was taken by the defendant, and therefore none was stolen.
The defendant simply made use of the electric current, returning to the company exactly the
same amount that he received.

Third. That, even if an electric current is a tangible thing, a chattel, and capable of being stolen,
the contract between the company and the defendant was one for use and not for consumption;
and all the defendant is shown to have done, which is all he could possibly have done, was to
make use of a current of electricity and not to take or consume electricity itself .

I shall therefore maintain that there is no lacerny even though the defendant committed all the
acts charged against him.

In discussing the question whether, under the law of the Philippine Islands, an electric current is
the subject of larceny, I shall proceed upon the theory, universally accepted to-day, that
electricity is nothing more or less than energy. As Mr. Meadowcroft says in his A B C of
Electricity, indorsed by Mr. Edison, "electricity is a form of energy, or force, and is obtained by
transforming some other form of energy into electrical energy."

In this I do not forget the theory of the "Electron" which is now being quietly investigated and
studied, which seems to tend to the conclusion that there is no difference between energy and
matter, and that all matter is simply a manifestation of energy. This theory is not established, has
not been announced by any scientist as proved, and would probably have no effect on the present
discussion if it were.

Based on this accepted theory I draw the conclusion in the following pages that electricity is not
the subject of larceny under the law of the Philippine Islands.

Partida 3, title 29, law 4, thus defines "cosas muebles:"

The term muebles is applied to all the things that men can move from one place to
another, and all those that can naturally move themselves: those that men can move from
one place to another are such as cloths, books, provisions, wine or oil, and all other things
 like them; and those that can naturally move themselves are such as horses, mules, and
the other beast, and cattle, fowls and other similar things.

Partida 5 title 5, law 29, contains the following:

But all the other things which are muebles and are not annexed to the house or do not
appeartain thereto belong to the vendor and he can take them away and do what he likes
with them: such are the wardrobes, casks and the jars not fixed in the ground, and other
similar things.

Article 517 of the Penal Code, in that portion defining larceny, as charged against the accused in
the case at bar, reads:

ART. 517. The following are guilty of theft:

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 (cosas muebles) without the
owner's consent.

This article of the Penal Code, as is seen, employs precisely the words defined in the Partidas.
The definition of the word is clear in the law as written. It is also clear in the law as interpreted. I
have not been able to find a writer on Spanish or Roman criminal law who does not say clearly
and positively that the only property subject to lacerny is tangible movable chattels, those which
occupy space, have three dimensions, have a separate and independent existence of their own
apart from everything else, and can be manually seized and carried from one place to another.
This was the unquestioned theory of the Roman criminal law and it is the undoubted and
unquestioned theory of the Spanish criminal law. Nor do I find a writer or commentator on the
Spanish or Roman Civil Law who does not define a cosa mueble in the same way.

One of the leading commentators of Spain on criminal law writes thus concerning the property
subject to robbery and lacerny:

Personal property belonging to another. If robbery consists in the taking of a thing for
the purpose and by the means indicated in the article in question, it follows from the very
nature of this class of crimes, that only personal or movable property can be the subject
thereof, because none but such property can be the subject of the correctatio of the
Romans; "Furtum since contrectatione non fiat," says Ulpian. The abstraction, the rapine,
the taking, and all the analogous terms and expressions used in the codes, imply the
necessity that the things abstracted or taken can be carried from one place to another.
Hence the legal maxim: Real property "non contractantur, sed invaduntur." (6 Groizard,
p. 47)

The act of taking is what constitutes the contrectatio and the invito domino which all the
great ancient and modern jurists consider as the common ingredient (in addition to the
fraudulent intention of gain), of the crimes of robbery and theft. From what has been said
it follows that the taking, the act of taking without violence or intimidation to the persons,
 or force upon the things, for the purpose of gain and against the will of the owner, is what
determines the nature of the crime of theft as defined in paragraph 1 of this section. (6
Groizard, pp. 261, 262.)

The material act of taking is, therefore, an element of the crime which cannot be replaced
by any other equivalent element. From this principle important consequences follow
which we need not now stop to consider for the reason that in speaking of the crime of
robbery we have already discussed the subject at great length. Immovable and
incorporeal things cannot be the subject of the theft for the reason that in neither the one
or the other is it possible to effect the contrectatio, that is to say, the material act of
laying hands on them for the purpose of removing the same, taxing the same or
abstracting the same. Hence the legal maxims: "Furtum non committitur in rebus
immobilibus and Res incorporales nec tradi possideri possunt, ita contectavit nec
aufferri." (6 Groizard, p. 266.)

Criticising an opinion of the supreme court of Spain which held that illuminating gas was a
subject of lacerny, the same writer says:

The owner of a certain store who had entered into a contract with a gas company whereby
he substantially agreed to pay for the consumption of the amount of gas which passed
through a meter, surreptitiously placed a pipe which he connected with the branch from
the main pipe before it reached the meter and used the same for burning more lights than
those for which he actually paid. The supreme court of Madrid convicted the defendant of
the crime of estafa but the supreme court of Spain reversed the judgment, holding that he
should be convicted of theft. The only reason which the supreme court had for so
deciding was that the owner of the store had taken personal property belonging to
another without the latter's consent, thereby committing the crime not of estafa but of
consummated theft. But in our judgment, considering the sense and import of the section
under consideration, it cannot be properly said that the owner of the store took the gas
because in order to do this it would have been necessary that the said fluid were capable
of being taken or transported, in other words, that the contrectatio, the meaning of which
we have already sufficiently explained, should have taken place.

Gas is not only intangible and therefore impossible of being the subject of contrectatio,
of being seized, removed, or transported from one place to another by the exercise of the
means purely natural which man employs in taking possession of property belonging to
another, but, by reason of its nature, it is necessary that it be kept in tank, or that it be
transmitted through tubes or pipes which by reason of their construction, or by reason of
the building to which the same may be attached, partake of the nature of immovable
property. There is no means, therefore, of abstracting gas from a tank, from a tunnel or
from a pipe which conveys the fluid to a building, for the purpose of being consumed
therein, unless the receptacle containing the same is broken, or the tank or pipe bored,
and other tubes or pipes are connected therewith at the point of the opening or fracture by
means of which the gas can conveyed to a place different from that for which it was
originally intended.
 This exposition, interpretation, if you choose to call it such, has a further foundation in
our old laws which have not been changed but rather preserved in the definition of
movable an immovable property given by the Civil Code. According to Law, I Title
XVII, Partida II, personal property means those things which live and move naturally by
themselves, and those which are neither living nor can naturally move, but which may be
removed; and Law IV, Title XXIX, Partida III, defines personal property as that which
man can move or take from one place to another, and those things which naturally by
themselves can move. Finally, corporeal things, according to Law I, Title III, Partida III,
are those which may be the subject of possession with the assistance of the body, and
incorporeal those which cannot be physically seized, and cannot be properly possessed.
From these definitions it follows that unless we do violence to the plain language of these
definitions, it would be impossible to admit that gas is a corporeal thing, and much less
that it is movable property. (6 Groizard, pp. 268, 269.)

If the holding that gas, which is unquestionably a physical entity having a separate and
independent existence and occupying space, has approached the verge of unstealable property so
closely that the ablest of Spain commentators believes that there is grave danger of the complete
destruction of the ancient legislative definition of stealable property by judicial interpretation,
what would be said in regard to a decision holding that an electric current is a subject of lacerny?

It may be well to add just here, although it may be somewhat out of its regular order, what the
author above quoted regards was the crime actually committed in the case he was discussing. He
says:

For us, for the reasons hereinbefore set out, it would be more in harmony with the
principles and legal texts which determine the nature of the crimes of theft and estafa, to
assign the latter designation to the fraudulent act which he have heretofore examined and
which substantially consists in the alteration, by means of a fraudulent method, of the
system established by an agreement to supply a store with illuminating gas and to
determine the amount consumed for lighting and heating and pay its just value. We
respect, however, the reasons to the contrary advanced in the hope that the supreme court
in subsequent judgments will definitely fix the jurisprudence on the subject.

Nor can the abusive use of a thing determine the existence of the crime under
consideration. A bailee or pledgee who disposes of the thing, bail or pledge entrusted to
his custody for his own benefit is not guilty of lacerny for the reason that both contracts
necessarily imply the voluntary delivery of the thing by the owner thereof and a lawful
possession of the same prior to the abusive use of it.

Not even a denial of the existence of the bailment or contract of pledge with of gain
constitutes the crime of lacerny for the reason that the material act of taking possession of
the property without the consent of the owner is lacking. (6 Groizard, p. 269.)

That under the Roman and Spanish law property to be the subject of lacerny must be a tangible
chattel which has a separate independent existence of its own apart from everything else, which
has three dimensions an occupies space so that it may of itself be bodily seized and carried away,
is not an open question. That that was also the doctrine of the common law is equally beyond
question.

In the consideration of this case the great difficulty lies in confusing the appearance with the
thing, in confounding the analogy with the things analogous. It is said that the analogy between
electricity and real liquids or gas is absolutely complete; that liquids and gases pass through
pipes from the place of manufacture to the place of use; and the electric current, in apparently the
same manner, passes through a wire from the plant to the lamp; that it is measured by a meter
like liquids and gas; that it can be diverted or drawn from the wire in which the manufacturer has
placed it, to the light in the possession of another; that a designing and unscrupulous person may,
by means of a wire surreptiously and criminally transfer from a wire owned by another all the
electricity which it contains precisely as he might draw molasses from a barrel for his personal
use. And the question is triumphantly put, "how can you escape the inevitable results of this
analogy?" The answer is that it is an analogy and nothing more. It is an appearance. The wire
from which the electricity was drawn has lost nothing. It is exactly the same entity. It weighs the
same, has just as many atoms, arranged in exactly the same way, is just as hard and just as
durable. It exactly the same thing as it was before it received the electricity, at the time it had it,
and after it was withdrawn from it. The difference between a wire before and after the removal of
the electricity is simply a difference of condition. Being charged with electricity it had a quality
or condition which was capable of being transferred to some other body and, in the course of that
transfer, of doing work or performing service. A body in an elevated position is in a condition
different from a body at sea level or at the center of the earth. It has the quality of being able to
do something, to perform some service by the mere change of location. It has potential energy,
measured by the amount of work required to elevated it. The weight or monkey of a pile driver is
the same weight when elevated 50 feet in air as it is when it lies on top of the pile 50 feet below,
but it has altogether a different quality. When elevated it is capable of working for man by
driving a pile. When lying on top of the pile, or at sea level, it has no such quality. The question
is, "can you steal that quality?"

Two pile drivers, owned by different persons, are located near each other. The one owner has, by
means of his engine and machinery, raised his weight to its highest elevation, ready to deliver a
blow. While this owner is absent over night the owner of the other pile driver, surreptiously and
with evil design and intent, unlocks the weight and, by means of some mechanical contrivance,
takes advantage of its fall in such a way that the energy thus produced raised the weight of his
own pile driver to an elevation of forty feet, where it remains ready, when released, to perform
service for him. What has happened? Exactly the same thing, essentially, as happened when the
electric charge of one battery is transferred to another. The condition which was inherent in the
elevated weight was transferred to the weight which was not elevated; that is, the potential
energy which was a condition or quality of the elevated weight was by a wrongful act transferred
to another. But was that condition or quality stolen in the sense that it was a subject of lacerny as
that crime is defined the world over? Would the one who stole the battery after it had been
elevated to the ceiling, or the weight of the pile driver after it had been elevated 50 feet in the air,
be guilty of a different offense than if he stole those chattels before such elevation? Not at all.
The weight elevated had more value, in a sense, than one not elevated; and the quality of
elevation is considered only in fixing value. It has nothing whatever to do with the nature of the
crime committed. It is impossible to steal a quality or condition apart from the thing or chattel of
which it is a quality or condition of a thing affects the value of the thing. It is impossible to steal
value. The thing, the chattel is that which is stolen. Its quality or condition is that which, with
other circumstances, goes to make the value.

A mill owner has collected a large amount of water in a dam at such an elevation as to be capable
of running his mill for a given time. A neighboring mill owner secretly introduces a pipe in the
dam and conveys the water to his own mill, using it for his own benefit. He may have stolen the
water, but did he steal the head, the elevation of the water above the wheel? The fact that the
water had a head made it more valuable and that fact would be taken into consideration in fixing
the penalty which ought to be imposed for the offense; but it has nothing whatever to do with
determining the nature of the offense of which the man would be charged.

Larceny cannot be committed against qualities or conditions. It is committed solely against

chattels, tangible things. A given chattel is a compromise result of all its properties, qualities, or
conditions. None of the qualities which go make up the complete thing is the subject of larceny.
One cannot steal from a roof the quality of shedding rain, although he may bore it full of holes
and thus spoil that quality; and this, no matter how much he might be benefit thereby himself. If,
in a country where black horses were very dear and white horses very cheap, one, by a subtle
process, took from a black horse the quality of being black and transferred that quality to his own
horse, which formerly was white, thereby greatly increasing its value and correspondingly
decreasing the value of the other horse which by the process was made white, would he be guilty
of larceny? Would he be guilty of larceny who, with intent to gain, secretly and furtively and
with the purpose of depriving the true owner of his property, took from a bar of steal belonging
to another the quality of being hard, stiff and unyielding and transferred that quality to a willow
wand belonging to himself? Is he guilty of larceny who, with intent to defraud and to benefit
himself correspondingly, takes from a copper wire belonging to another the quality of being
electrified and transfers that quality to an electric light? An electric current is either a tangible
thing, a chattel of and by itself, with a perfect, separate and independent existence, or else it is a
mere quality, property or condition of some tangible thing or chattel which does have such an
existence. The accepted theory to-day is, and it is that which must control, that electricity is not a
tangible thing or chattel, that it has no qualities of its own, that it has no dimensions, that it is
imponderable, impalpable, intangible, invisible, unweighable, weightless, colorless, tasteless,
odorless, has no form, no mass, cannot be measured, does not occupy space, and has no separate
existence. It is, must be, therefore, simply a quality, a condition, a property of some tangible
thing or chattel which has all or most of those qualities which electricity has not. Being merely
the quality of a thing and not the thing itself , it cannot be the subject of larceny.

To repeat" As we know it, electricity is nothing more or less than a condition of matter. It has no
existence apart from the thing of which it is condition. In other words, it has no separate,
independent existence. It is immaterial, imponderable, impalpable, intangible, invisible,
weightless and immeasurable, is tasteless, odorless, and colorless. It has no dimensions and
occupies no space. It is the energy latent in a live herself is the power potential in the arm of a
laborer. It is the force stored in the wound-up spring. It is an agency, not a "cosa mueble." It is a
movement and not a chattel. It is energy and not a body. It is what the laborer expends and not
what he produces. It is strength striped by an unknown process from arms of men and atoms of
coal, collected and marshalled at a given place under the mysterious leash of metal, ready to
spring like a living servant to the work of its master. It is not a chattel, it is life. It is as incapable
of being stolen, by itself, as the energy latent in a live horse. It is as impossible to steal an electric
current as it is to steal the energy hidden in a wound-up watch spring. One may steal the horse
and with it the energy which is a quality of the horse. One may steal a watch and with it the
energy which is a property of the wound-up. But can we say that one can steal the energy in the
watch spring separate from the spring itself, or electricity apart from the wire of which it is a
quality or condition?

A laborer was stored up in his muscles the capacity to do a day's work. He has potential energy
packed away in little cells or batteries all through his body. With the proper mechanism he can
enter a room which it is desired to light with electricity and, by using the stored-up energy of his
body on the mechanism, light the room by transforming the energy of his muscles into the
electricity which illuminates the room. We have, then, a laborer who, by moving his hands and
arms in connection with the appropriate machinery, is able to light the room in which he is at the
time. What causes the light? The energy in the laborer's muscles is transformed into light by
means of the intermediate phenomenon known as electricity. As a concrete result, we have the
energy in the laborer's muscles transmuted into light. Now, is the energy passing through the
wire, more capable of being stolen than the energy in the muscles of the laborer? Or is the light
or heat any more or less a subject of larceny than the electric current of which they are a
manifestation? Could the energy which performed the day's work be stolen? Could the electric
current which lighted the room be stolen apart from the wire of which it was a quality? One
might kidnap the laborer and with him the energy which constitutes his life; but can we say that
the energy, of itself, is the subject of separate larceny? But, it the laborer's energy cannot be
stolen while it resides in and is a quality of his arm, can the same energy any more be stolen
when it resides in and is a quality of a wire in the form of electricity? If so, just where is the
dividing line, where is the point at which this kinetic energy ceases to be incapable of being
separately stolen and becomes a subject to theft? Is it at the crank by which the laborer turns the
machine? Is it at the armature, the conductor, the fields coils, the field magnet, the commutator,
the brushes, the driving pulley, or the belt tightener? Is it where the current enters what is called
the electric-light wire, or is it where it enters the bulb or arc and produces the light? In other
words, at what point does the untealable laborer's energy become stealable electric energy?

An electric-light wire placed in a house for the purpose of furnishing light for the same has its
precise counterpart in a laborer placed therein for the same purpose. Like the laborer, it is filled
with energy which will, when released, perform the service intended. The wire is simply a means
of transmitting the energy of the laborer's muscles, and that stored in tons of coal which he
handles, from the electric plant or factory to the house where the light is produced. The wire
simply avoids the necessity of the laborer being in the very house where he produces the light.
Instead of being there, he, by means of the so-called electric-light wire, is located at a distance,
but produces the light in exactly the same way, transmitting his energy for that purpose. The wire
stands in exactly the same relation to the person in whose house it is put as would a laborer who
had been sent to that house to render services. The energy may be diverted from the purpose for
which it was intended, or a wrong account given of the amount of work performed by that
energy; but it is impossible to steal, take and carry the energy away. One cannot steal days'
works; and that is all an electric current is. One may use those days' works in hoeing corn when
it has been agreed that they shall be used in picking cotton; but that is not larceny of the days'
works, as larceny has been defined by the jurisprudence of every country, Or, one may report to
the owner of those days' works that he had used three of them when in reality he used thirty and
pay him accordingly, but that is not larceny of the twenty-seven.

But, it is argued, the illustration is not a fair one; energy in a laborer's arm or in the muscles of a
horse or in a wound-up spring is, so far as its capability of being stolen is concerned, quite
different from energy which has been separated from the arms of the laborer or the muscles of
the horse and driven through a wire; from such wire electricity may be drawn like water from a
barrel; and while it is impossible to steal the energy of a man or a horse because it would destroy
the life of the animal, an entirely different question is presented when the energy has actually
been separated from those animals and confined in a wire.

This argument has several fundamental defects. In the first place, it assumes the whole question
at issue. By asserting that electricity is separable from the object of which it is a quality or state
is to assume that electricity is a material thing, which the real question to be resolved. In the
second place, if electricity is in the real sense of that term, separable from the object to which it
belongs, then it must be admitted that it is capable of separate and independent existence apart
from any other object. This is not so. It is not only admitted but contended by every scientist who
has touched this subject that electricity is incapable of an independent existence apart from some
given material object. In the third place, this argument overlooks the fact, even if we assume that
it can be separated, that the thing when separated is not the same thing that it was before
separation; in other words, when the so-called separation occurs there is not only a transference
of energy from the horse to the battery but there is also a transformation. In the horse it is
muscular energy. In the wire it is electrical energy. In the horse it is potential. In the wire kinetic.
It is not the same thing in the wire that it was in the horse. In the fourth place, the argument
makes the stealability of a thing depend not on its nature but on where it is located. This is an
assumption wholly unwarranted and impossible under the law. To say that whether or not a thing
is stealable depends not on its nature but on where it is located is absurd. A diamond ring in a
burglar-proof safe is as much a subject of larceny, under the definition of the law, as if it lay in an
open showcase. If energy is stealable at all, and it must be remembered that I am proceeding, as
we must necessarily proceed upon the accepted theory that electricity is nothing more or less
than energy, it is so by reason of its nature and by reason of its residing in a battery rather than in
a horse; and if it is stealable by virtue of its nature it can be stolen from the horse as well as from
the battery or wire. A thing is subject to larceny because, and only because, it is a cosa mueble,
not because it is inside a horse, a wire or a safe. If it is a cosa mueble it is the subject of larceny
although it be located on the moon; and if it is not a cosa mueble it is not subject to lacerny
although it be placed in a den of thieves. The difficulty or ease of getting at a thing has nothing
whatever to do with its stealability. In the fifth place, this argument overlooks the very important
fact, to be dealt with more at length later, that the electric current used by the accused was
returned to the company, after use, absolutely undiminished in quantity.

What, then, is the difference between corn, for example, and an electric current? It is this. One is
a cosa mueble while the other is not; one is produced by a wholly different process from the other
and from wholly different materials, if we may call materials those changes which result in the
immaterial thing called an electric current; in the case of corn we deal not with the quality or
energy of corn, but with corn as a composite and concrete result of all its qualities and uses; we
deal with a tangible thing, a chattel, and not with a condition or quality of a tangible thing; we
deal with things instead of ideas, with things which exist separate and independent and which
do not depend, as does electricity, wholly upon some body not only for the capability of
manifesting its existence, but also for very existence itself ; because we deal with something
which changes its form but never its nature as a physical entity. It is always a chattel, a tangible
thing, a cosa mueble.

On the other hand, in the case of the electric current we deal not with a thing, a chattel a cosa
mueble, but with a condition or quality, a property of a cosa mueble; with an idea which always,
before it has any significance of meaning whatever, associates itself with an entity, a body or
chattel, as a characteristic or quality of such body or chattel; with lines of force which are
merely and solely a quality, a property, a characteristic of the magnet, instead of which grains of
corn which are absolute entities, independent of and apart from everything else, and not mere
characteristic or qualities of some entity of body which does not exist as an absolute physical
entity in itself; with the horse and the violet and not their perfume; with the lily and not its
beauty; with the clouds and not their color; with entities and not accidents; with realities and not
the imponderable, impalpable ideas and qualities which make up the reality.

As he already been said, the difficulty in the elucidation of the question comes from the
confusion of qualities with things, of appearances with realities. Apparently an electric current
does things. It produces phenomena. It, therefore, appears to be something. But it must not be
forgotten that many times appearances are deceitful. They do not always insure realities. It is not
judicial to say that, because a thing looks so, it is so. It is not judicial to say that, simply because
it looks as if one committed larceny, therefore he is guilty of larceny. Before we may legally
convict one of larceny, we must know exactly what he did. Justice is not founded on guess work
nor on appearances. Men's right are preserved by definitions, and definitions are founded on
facts, not fancies, on realities, not appearances. Because, when one taps an electrically charged
wire belonging to another and, by means of a contrivance, transfers the charge to his own uses, it
looks as if he was stealing something, is not sufficient to convict him of larceny. We must first
know what larceny is, as well as what an electric current is, and what is meant by its use in
producing light. To know what larceny is we must know what legislators and judges during the
development of jurisprudence have always said and agreed it is. In other words, we must know
its definition. It approaches tyranny to convict one of murder when is actually guilty of homicide
only. Yet the only thing which separates the two crimes is a definition. It is wrong to convict one
of robbery who is guilty only of larceny. Yet these two crimes are distinguished only by a
definition. If, as in the case at bar, whether or not one is declared a felon and is sent to prison for
one year eight months and twenty-one days, is forever disqualified from holding public office
and of exercising the right of suffrage, or whether, instead, he is declared guilty of a
misdemeanor simply and punished lightly with no accompanying disqualifications, depends
upon whether he has committed larceny as defined by the Penal Code or whether he has merely
violated a city ordinance, the question whether he actually committed larceny or not begins to
assume importance. It assumes importance not only to him but to society as well. If a court to-
day palpably modifies a definition in order to convict an offender of larceny, how can society be
assured that tomorrow the same court will not modify some other definition to convict a citizen
of treason? When definitions are destroyed no man is secure in his person or his property. When
men act on appearances instead of realities justice will be shortlived. A whale looks like a fish,
acts like a fish, swims like a fish and lives all its life in the water like a fish. But it is not a fish. It
is an animal. It is air-breathing, warm-blooded, and viviparous, and suckles its young. Now, if
whether or not a whale is a fish or an animal is the potent factor determining whether a man goes
to state prison as a felon with all the deplorable consequences resulting, or whether he is lightly
sentenced as a mere misdemeanant, is it not of the supremest importance to determine whether a
whale is a fish or an animal? I am informed that it used to be a common sight in The New York
Zoological Gardens to see Mr. Crowley, the large and extremely intelligent chimpanzee, dressed
in faultless attire, sit at the table and take his food and wine like a gentleman. Children believed
him to be a man; and many intelligent grown people honestly believed that he was as much man
as chimpanzee. But if the officials of the city of New York had been indicted for kidnapping,
based upon the seizure and forcible detention of Mr. Crowley, would it not have been of the most
solemn importance to them to throw away appearances and determine accurately what Mr.
Crowley really was? And in case of doubt as to what he was, could they not justly have
demanded the benefit of that doubt?

So, where one who diverted an electric current has been accused by reason thereof of the crime
of larceny, which crime, it being admitted, can be committed only against tangible things,
chattels, is it not of the very greatest importance to determine what an electric current is, that is,
whether it is a tangible thing, a chattel, or not and what is the nature and meaning of the process
by which it transforms itself into electric light? And in case of doubt as what it is, cannot the
accused justly demand the benefit of that doubt? To convict one of larceny it is not sufficient to
show merely that a wrongful act has been done; but it must appear that a wrongful act of a
particular kind has been committed. To constitute larceny it must be proved that the wrongful act
was committed against chattels, against tangible things, which were seized upon and asported by
the one accused. In the case at bar it has not been shown that the accused laid unlawful hands
upon and asported a tangible thing, a chattel, una cosa mueble. The very least that the
prosecution must necessarily admit is that no one knows what electricity really is. That being so,
it seems to me to be a contradiction of terms to say that larceny, which must admittedly be
committed against a known thing, can be committed against a thing absolutely unknown. At least
it would seem that there is a grave doubt about the definition of larceny covering wrongful acts
relative to an electric current; and by reason of that doubt the conviction ought not to be
sustained. And if it is true, as I have herein attempted to show, that, under the prevailing and
generally accepted theory, electricity is nothing more or less than a condition, a quality, a
property of some tangible thing, some chattel or body, then, certainly, the charge of larceny must
fall, as that crime can be committed only against the thing and not against a quality of the thing.

Although the only question in this case is whether electricity is such a tangible thing, as can,
under the definition of lacerny contained in the Penal Code, be the subject of lacerny,
nevertheless the court dismissed that question substantially without discussion, the only
reference thereto being the following:

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

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 lacerny.

The statement fail to touch the essential question involved and is wholly beside the point for the
following reasons, lying aside for the moment the nature of the act which the accused actually
committed, assuming that he committed the act described by the witnesses for the prosecution:

In the first place, as I understand the law , the statement is not quite correct that, in the Philippine
Islands, "the true test of what is a proper subject of lacerny seems to be not whether the subject is
corporeal or incorporeal, but whether it is capable of appropriation," unless the word
"appropriation" has the same meaning as the word "taking" used in the article of the Penal Code
defining larceny. If the court intended to use the word "appropriation" in the sense of "taking,"
then its use was unnecessary and may be misleading. If it did not so intend, then the rule of law
laid down by the court is not as I understand the law to be. An appropriation in addition to or
different from the taking is not an essential of lacerny anywhere. Wharton says that "lacerny id is
the fraudulent taking and carrying away of a thing without claim of right, with the intention of
converting it to a use other than that of the owner and without his consent." Article 517 of the
Penal Code provides that they shall be guilty of lacerny "who . . . take (toman) (not appropriate)
another's cosas muebles (movable chattels) without the owner's consent." Unless, therefore, the
word "appropriation" is used in the same sense as "taking," the paragraph in the court's decision
above quoted does not contain a correct statement of the law. If it means the same thing then the
use of the word in no way enlightens the situation; for it is just as difficult to determine whether a
cosa mueble can be appropriated as it is to determine whether it can be taken. The question
before us is whether or not electricity is such a cosa mueble that it can be taken under the law of
lacerny. To substitute in that problem the word "appropriation" for the word "taking" does not
laid in its solution in the slightest degree when it is admitted that the word substituted means
exactly the same thing as the word in the place of which it was substituted.

An illustration will serve further to show the fallacy inherent in the statement quoted: Let us
suppose that the Penal Code defined larceny thus: "Any person who, with intent to gain, takes
from another his cake without his consent shall be guilty of lacerny." Let us suppose that some
one should then defined the subject of lacerny as anything, corporeal or incorporeal, which can
be "appropriated." It would be obvious that such definition would be erroneous, for the reason
that, while pie is as capable of being "appropriated" as cake, still, under the terms of the law,
lacerny cannot be committed against pie. So that where the statute prescribes that the only thing
subject to larceny is a cosa mueble and the definition of the subject of larceny is claimed to be
anything that can be "appropriated," the answer at once is that such definition is inaccurate under
the law as it may be too broad. There may be some things which can be "appropriated" that are
not cosas muebles.

In the second place, the quoted paragraph from the court's decision contains another error in the
statement of the law. I am of the opinion that, under the common law, and I am sure under the
Spanish law, the statement that "the true test of what is a proper subject of larceny seems to be
not whether the subject is corporeal or incorporeal . . ." is not accurate. Professor Beale, of
Harvard, says in his article on larceny that

At common law the only subjects of larceny were tangible, movable chattels; something
which could be taken in possession and carried away, and which had some, although
trifling, intrinsic value. Any substance which has length, breadth, and thickness may be
the subject of larceny. . . . A chose in action being in its essence intangible could not be
the subject of larceny at common law and the paper evidence of the chose in action was
considered merged with it.

Wharton says:

Choses in action, including bonds and notes of all classes according to the common law
are not the subject of larceny, being mere rights of action, having no corporeal
existence; . . . .

I have already quoted at length from writers on the Spanish and Roman law to show that only
tangible, corporeal chattels can be the subject of larceny.

In the third place, by entirely begging the question, it leaves the whole proposition of whether
electricity is a subject of larceny not only unsolved but wholly untouched. As we have already
seen, the word "appropriation" nowhere appears in subdivision 1 of the Penal Code in connection
with larceny. But if it were there used in connection with such crime, it would necessarily refer
entirely to a cosa mueble as that is the only thing under that article which is the subject of
larceny and, therefore of "appropriation." So that, before we can possibly know whether a thing
is capable of appropriation or not under the Penal Code, we must know whether that thing is or is
not a cosa mueble, as that, as we have said, is the only thing that can be taken or appropriated in
committing the crime of larceny. But, as is readily seen, that brings us right back to the question
we started with, What is a cosa mueble? It is more than apparent, therefore, that the quoted
paragraph adds nothing whatever to the discussion.

In the fourth place, the word "appropriation" in the paragraph quoted is there used with a
complete misapprehension of its meaning as found in the article of the Civil Code from which it
is taken. Articles 334 and 335 of the Civil Code seek to divide all property capable of
appropriation into classes. They read:

ART. 334. Son bienes immuebles:

1. Las tierras, edificios, caminos y construcciones de todo genero adheridas al suelo.

xxx xxx xxx

This article has ten subdivision dealing with all kinds of real property. It is not necessary to quote
it all at this time.

The English of the part quoted is as follows:

 ART. 334. Real property consists of

1. Lands, buildings, roads, and constructions of all kinds adherent to the soil.

xxx xxx xxx

ART. 335. Se reputan bienes muebles los susceptibles de apropiacion no comprendidos

en el capitulo anterior, y en general todos los que se pueden transportar de un punto a otro
sin menoscabo de la cosa immueble a que estuvieron unidos.

This article in English is as follows:

ART. 335. Personal property is considered anything susceptible of appropriation and not
included in the foregoing chapter, and, in general, all that which can be carried from one
place to another without damage to the real estate to which it may be attached.

As is seen from the terms of the articles, two expressions are used in defining "bienes muebles,"
one of elimination and other of description. The clause of elimination provides that all property
subject to appropriation shall be personal property except that property described in article 334.
But this description was found to be too broad. It included too much; and it was, therefore,
necessary to make use of a limiting or restricting clause in connection with the exclusion clause.
To that the article further provided that appropriable property shall be, "in general, all property
which can be carried from one place to another." Under this restricting clause, then, property to
be personal property must be not only property not included in article 334 but also property
which can be transported from one place to another. It must fulfill two requirements instead of
one. Besides, under the Spanish law, real property is as much subject to appropriation as personal
property. The word in Spanish seems to be broader than its legal use in English.

From the foregoing it is plain that property to be personal property must not only be susceptible
of appropriation, which the court in the quoted paragraph claims is the only requirement, but it
must also be capable of being of itself manually seized and transported from one place to
another.

This presents the fourth reason why I say that the proposition laid down by the court in the
quoted paragraph is laid down under a complete misapprehension of the definition of una cosa
mueble.

And finally, the word "appropriate" which the court has used is found in subdivision 2 of article
517 of the Penal Code. It provides that those are guilty of larceny, "who, finding a thing (una
cosa mueble) lost and knowing its owner, appropriate it with intent to gain." The signification
which the word here has is quite different from that of the word "take" (toman) used in the first
subdivision, being considerably limited in its reach. As used here it is very like "convert." There
is no removal from the possession of the owner, as in the first paragraph. In the Penal Code the
word "taking" means something more than "appropriation." It means a removal from the
possession of the owner a transportation or asportation of the thing from one place to another
from the possession of the owner to the possession of the theft; while "appropriation" means,
rather, the making use of the converting of the property after the taking is complete, or without
any "taking" at all. Under the Spanish law, while real estate is not, of course, subject to
asportation, to "taking," and, therefore, not the subject of larceny, it is subject to "appropriation."
In the same way while electricity is, under the Spanish and Roman laws, wholly incapable of
seizure and asportation, of the manual "taking" the trespass essential to larceny, it may possibly,
in one or another sense of the word, be subject to appropriation." If at one extreme of the scale of
things, namely, real estate, the thing is too tangible to be stolen, is it not logical to expect that at
the opposite extreme the thing, electricity, for example, may be found too intangible to be stolen?

We have seen that, in all the history of Roman and Spanish jurisprudence, the crime of larceny
has been confined to tangible things, to chattels, which have an independent existence of their
own; which have three dimensions; which occupy space; which are capable of having a trespass
committed against themselves; which can be, of themselves and alone, taken physically into
possession and carried away (asported).

We have that the fact that electricity is not such a thing is admitted by all.

And we have asked the question, "How, then, can the charge of larceny be sustained?"

But let as assume, for the sake of argument, that electricity is a tangible thing, like water, for
instance. Still the crime committed, if any, is not lacerny. Let us modify the illustration already
given of the surreptitious removal by A of water stored in a dam by B for milling purposes. Let
us suppose that B has built a reservoir on an elevated portion of his farm for the storage of water
for irrigating purposes. He has built ditches or conduits from the reservoir to every part of his
farm to carry the water to the places needed. During the dry season while B is engaged in
irrigating his lands A surreptitiously and with intent to gain, constructs a small mill upon one of
the conduits and utilizes the rapid fall and swift flow of the water to operate his mill. For many
months A thus takes advantages of B's conduit and water and enriches himself by reason thereof.
Did A commit the crime larceny? The water, every drop of it, after being used by A, went to its
work of irrigating the lands of B, pausing only long enough to turn the water wheel of A's mill.
Certainly then, no water was stolen. A simply made use of the "head," the fall of the water. If
anything was stolen it was the "head," the elevation of the water, the energy developed by its
passage from high to low ground. This is precisely what happens when an electric current passes
through an electric bulb or arc and produces light. Whether the current operates one light of one
hundred, the volume, the amperage, of the current, that is, the quantity of it, if we may use the
term (and it must be remembered that I am assuming electricity to be a tangible thing and will
speak accordingly) remains exactly the same. The volume or quantity of the electricity is just the
same when it comes out of the hundredth light as it was when it entered the first. While there is a
difference between the current as it comes from the last light and as it entered the first, it is
simply one of condition, or state. All of the electricity is still there. Like the water; it has simply
lost its "head," its energy. It has been deprived of its pressure, of its electro-motive force; but it is
the same old electricity, in the same old quantity. So that, when the accused in the case at bar, by
means of a "jumper," burned thirty lights, instead of the three for which he paid the company, he
was not stealing electricity. Exactly as much electricity went back into the company's wire after
serving the twenty-seven lights for which he did not pay as came out of that wire in the first
place. The defendant took nothing; he used something. In larceny there must be a taking. Here
there is only a use. Electricity is a utility, not a thing. The company, in the cease at bar, lost no
more than did the owner of the irrigation system in the example heretofore given. As no water
was taken, so no electricity was taken. The same amount of water remained to the owner after its
use by A. The same amount of electricity remained to the company after its use by the defendant.

The well-known Italian author, Avv. Umberto Pipia, in his very able work entitled "L' Electricita
nel Diritto" puts the question thus (translation of Mr. Percy R. Angell, Manila, 1911):

From the point of view of the jurist can electricity be stolen? A person connects a
deflecting wire to the main conduit of electricity; he thus makes a secondary circuit in
which he introduces a resistance and profits by the electro-motive power which is
developed, to supply his lamps or put his motor in movement. In such case can we apply
article 402 of the Penal Code, which provides that whoever takes possession of movable
property of another in order to derive profit thereby, taking it from the place where he
finds it without the consent of the owner, is punished with reclusion up to three years?

The author then refers to the decisions of certain course of Europe which hold that electricity is
stealable, and continues:

The Roman court of cassation has lost sight of that fundamental principle of
interpretation of law (a principle which it ought to have had well in mind before applying
to a new manifestations of force legislative provisions enacted in view of totally different
cases) by which penal laws do not extend beyond the cases and the times in them
expressed. Nulla poena sine lege, is the rule in terms of penal law, unless we wish to
bring about a deplorable confusion of powers, and the judiciary desires to usurp the
authority of the legislator. If in the written laws gaps or breaks are encountered, it is the
duty of the court to point them out to the legislator, to the end that he take the necessary
measures; but it is not lawful for him by analogous interpretation to apply a penal
provision where such has not been explicitly enacted.

In the unanimous opinion of jurist, two elements are necessary to constitute the crime of
theft, legally speaking; the first is the taking possession of the personal (movable)
property of another, contrectatio, and the taking away of the thing from the place where it
is found without the consent of the person to whom it belongs, ablatio.

Now we have conclusively shown that electric current is not a thing, but a state, a
vibration following certain converging waves. It can not therefore be taken possession of
as the personal property of another. A person who unlawfully uses electric current for his
personal enjoyment places himself in a state of unlawful enjoyment of a utility, but he
does not take possession of personal property. It was a grave error, that of the court of
cassation, in holding electric current to be a thing imprisoned in wires, and composed of
particles that can be subtracted. In connecting a second circuit one does not subtract
electric current; not a particle of electric energy enters into the possession of the so-
called thief ; the same amount in amperes that was found and derived on connecting the
second circuit, is found at the end of this circuit. The current has only suffered a
diminution of potential; while continuing to be of the same volume, it becomes less
adapted for the use intended, because having overcome a resistance, it has lost in
potential, its electro-motive power.

. . . It leaves the circuit in the same amount in which it entered. Only its power for work
has diminished. Not a single particle or molecule of electric current is taken by such
abusive use, only the state of undulation. The movement that first follows the principal,
and then the second circuit, and by these undulations the so-called thief illegally derives
benefit. But the extraordinary provisions of crime are not applicable to all illegal actions.

Another powerful argument in favor of my position is this: That in no case of usurpation,

the using of things protected by law (diritto) that are not material things , do we speak of
theft. To repress abuses the legislator has been obliged to establish special provisions of
law, but has explicitly recognized those relating to theft to be inapplicable. A trade-mark,
trade-name, modello de fabrica, a scientific or artistic work, undoubtedly constitute
objects of law similar to things; form the contents of various juridical relations; have
more or less economic value; pertain to the patrimony of the person who has produced
them or brought them into being. If a third person makes use of the trade-mark or trade-
name, the scientific work or artistic production of another, nobody denies that he takes
possession of a utility that does not belong to him; that by the very illegal act he derives
profit, and at the same time diminishes the patrimony of the person having legitimate
rights herein. But with all that, it has never occurred to anyone to bring an action for theft
against the usurper of the firm name, the counterfeit of the trade-mark or the plagiarist.
The legislator, desiring to protect this new species of property, has provided special
repressive measures; but in their absence, the courts can not apply the actio furti, because
it is not applicable to cases and conditions other than those provided for.

If this be so, why different conceptions on the score of electricity? Here likewise, there is
no subtraction of personal property, but the illegal use of an advantage, of the right
pertaining to another, which remain however unchanged. Hence the legal solution should
be the same.

The second and not less essential condition of theft is that of the ablatio, the necessity of
taking the thing from the place where it is found. But here we have nothing of that; the
current is deviated from its course, true, but it returns to the place where it was
undiminished. The statement in the foregoing decision that there are particles
transportable from place to place is exact; the undulation is in itself, it has its own
efficiency, but it is neither taken away nor subtracted. It has been justly said that all that is
done is to erect a bridge over which the undulations of the particles are transported in the
wire attached, but nothing corporeal passes from one wire to another, since not one of the
vibrating particles moves with the current which flows through the connected wire.

Consequently, in whatever aspect the question is considered the presumption of theft

grows less. In fine, although there be a usurpation of a utility to the prejudice of another,
it should not be held to constitute theft, because that is the vulgar, not the legal
conception. That in civil and commercial law we may resort to analogous interpretation,
and that, in the absence of special provisions we should apply the rules which govern
similar matters and analogous cases, there is no doubt. The courts can not refuse to say
what the law is (dire ie diritto) nor dismiss the litigants on the pretext that the law had
made no provision for their case; and it is from this concept that electricity, as a rule, in
the various relations where it constitutes the object, is considered to be a thing, with all
the attributes of such. But the penal law is restrictive; under certain aspects it is
exceptional. Here we have to do with limitations and restrictions on the most sacred
rights of persons, the right to liberty, the right to honor. And these rights can not be
abridged without definite and explicit provisions of the law. Where these are lacking we
can pray, as I do, that they be supplied, but a decision in such case is an arbitrary act
(arbitro), not justice: nulla poena sine lege.

xxx xxx xxx

So on the wrongful use of electric current; profit is derived from its high potential which
is produced by the work and expenditure of money on the part of the furnishing
company; the current is returned exactly as it was delivered except it has lost a certain
amount of electromotive power that was illegally (antigiuridicamente) employed to
overcome the resistance introduced by the third party.

xxx xxx xxx

. . . Penal law must be strictly construed (e di interpretazione restrittiva). It punishes the

contractatio of a movable thing which is taken from the place where it is found without
the consent of the owner. In the proposition under discussion, we have not to do with
movable things, there is no true transporting to another place; therefore the figura
giuridica of theft is wanting.

It can not be doubted that by movable things is meant even liquids and fluids, because
these are material, concrete, and corporeal things, but their physical external
manifestations can not affect the juridical relation . But in our case there is not a thing,
fluid or liquid; there is a state of undulation, of movement, which one uses illegally,
assuming however the obligation to indemnify for all the damages resulting from his
illicit action, but there is no theft, any more than there would be where a person applied a
pulley to the shaft of an engine in order to put his own machinery in motion, so far as
there would be no appropriation. The current which injuriously traverse the lamp or
electric motor is not appropriated or destroyed by the person who uses it; it flows out
from the lights and continues its course in the circuit undiminished in intensity; it has
only lost part of its power, because, having encountered a resistance, it has developed
certain energy to overcome it, energy which has produced light, traction, or mechanical
work.

Nor may it be said that electricity would then be deprived of any legal protection. Do we
not have articles 1511 et seq. of the Civil Code that provide for fraud? Is there not the
civil crime and quasi crime? To protect electric energy is it necessary to imprison one
who uses it antigiuridicamente, while the letter of the law does not consent? In any case
it is known that adducere inconveniens non est solvere argumentum. As in the laws of our
country provision is made for the illegal use of a firm name, trade-mark and works of
genius (l' ingegno); in England, where provision has been made for the matter we are
discussing they have enacted a law imposing severe penalties upon persons who illegally
use electric energy, and I am of the first to applaud them. But let there be laws, not
merely judicial opinion (arbitria di interpretati).

Nor does it avail to urge that when we have to do with benefits that are useful to man,
which serve his ends, that he can appropriate, these benefits are considered as things in
the eyes of the law. But it is necessary to make a distinction. From the standpoint of the
civil law, they are, because a wide and analogous construction is permissible and
permitted; but from that of the penal law, they are not, because such construction is
expressly forbidden by article 4 of the preliminary provisions of the Civil Code.

If a trade-mark is not a benefit to man, in what does it serve him? Is not a literary or
artistic production such? Does not the counterfeiter illegally appropriate such benefits?
But if it is required to inflict criminal penalties upon him, a special law must be enacted;
the provisions relative to theft can be applied in his case.

xxx xxx xxx

Nor is it a conclusive argument to say that the manufacturer spends large sums of money
and erects costly machinery to generate the electricity, and when others steal it from him,
such action, according to juridical conscience and social morals, constitutes theft.

Let us suppose an individual acquires a ticket of admission, and enters a hall where there
is being produced a play of some sort. He, on the strength of the legal negotiation with
the impresario and the acquisition of the ticket has a right to the most ample enjoyment
that his optical and acoustic senses are able to realize. But he arranges a phonograph and
a cinematograph, and surreptitiously fixes and appropriates part of the acoustic and visual
enjoyment that does not belong to him, takes it outside of the theater and later avails
himself thereof to his benefit by reproducing the harmony of the sounds and the optical
illusion of the scene. Is he liable for theft?

From the standpoint of the doctrine I am combating, he is. The impresario has sacrificed
money or work to produce the spectacle. Our friend has the right to enjoy it to the limit of
the capacity of his organs of vision and hearing, but beyond that. By means of suitable
instruments he has caught up the sounds, movements, and colors for the purpose of gain,
and he commits a theft because there enter the correctatio and the ablatio.

From the point of view of the law he is not. He would be held to reimburse the impresario
for all damages, but he can not be called a thieft, nor be punished as such. The sounds and
forms of light are states, not things; therefore they can not form subjects of theft.

And if this is so, the same conclusion must be reached with respect to electricity.
The supreme court of the German Empire, sitting at Leipsic, October 20, 1896, in a decision
holding that electricity was not a subject of larceny, said:

The court below found that the act did not constitute theft or unlawful appropriation,
because electricity is not to be considered a thing within the meaning of paragraph 242 of
the Penal Code, and because by things the law means portions of material nature; that
corporeal existence is an essential ingredient of the thing. Even the Penal Code starts
from this principle. Incorporeal things, as for example rights, intellectual products and
machine power are not subjects of theft. The same must be said of electricity. Experts say
that the science is not yet determined. We well know what must be done to produce
electric energy, but we do not comprehend these vital operations, any more than we
understand what is that makes the muscles of the human arm capable of exerting force. In
the conclusions of the Court of First Instance there is no error of law. That court starts
from the principle that the corporal existence of the thing must be the essential element to
come within the meaning of article 242. This assumption is not based upon the precepts
of the Civil Code, but, rather, upon the idea which is at the bottom of the Penal Code,
namely, the movable and independent thing, which presupposes the corporeality of the
object. If then, under articles 242 and 245, the condition precedent to the commission of
larceny is that the object of theft or unlawful appropriation be a piece or portion of
material substance in either a solid or liquid state, or in form of gas, the Court of First
Instance committed no error in finding there was neither theft nor illegal appropriation.
Whether or not the notation of a thing, in the sense of the penal laws, requires something
corporeal, is a question of law; but the question whether electricity is a substance, a
corporeal thing, or a force, a movement of a minute particles, is a question of fact that can
not be decided by the rules of law, but by physical research alone. The consideration of
the great importance of electricity in commercial life and the place awaiting it among the
vital conveniences and the fact of its having commercial value, is not an argument to
prove that electricity is a corporeal thing, because the quality of being a vital convenience
and having commercial value does not constitute a necessary standard of corporelity,
since force, operations, intellectual products are vital conveniences (beni) and have
commercial value. When, in the jurisprudence of the day the need for penal laws for
punishment of unjust appropriation of electric current becomes apparent, the legislator
should provide them. The courts can not be called upon to supply the lack of legal
provisions by analogous applications of rules not made to fit the circumstance. In penal
law the principle nulla poena sine is supreme.

These authorities fully support my contention that electricity is not stealable under the provisions
of the Spanish Penal Code. They also support the proposition that even if electricity is a tangible
thing, like water, and therefore stealable, the crime, if any, committed by the defendant in this
case is not larceny, because the company had just as much electricity after the illegal act as it
had before. In other words, it has lost no electricity. Having lost no electricity it can not charge
anyone with stealing it. If a thousand lights were burned, no more electricity would be consumed
than if one light were burned, just as, no more water is consumed in running a thousand water
wheels placed one below another than in running one. Just as much water flows over the
thousandth wheel as flowed over the first. In the same manner there is just as much electricity
flowing out of the thousandth light as flowed into the first. Just as in using the water, nothing is
consumed but the head, the quantity of water remaining the same, so, in using electricity, nothing
is consumed but the head (the pressure, the potential, the electro-motive force), the electricity
itself remaining undiminished. No electricity was taken. It was used and then returned to its
owner.

For a clear understanding of this problem, and a logical and philosophical, as well as legal,
solution thereof, we must never, for a moment, forget the fact that the real contract between the
company and the defendant was one to furnish labor and services; a lease, if you please, of an
agency, a contract of precisely the same nature as one by which the company lets to the
defendant the use of one of the company's workmen to turn by hand, in the defendant's own
house, an electrical machine and thereby produce light for defendant's use. This is the crux of the
whole question. While no contract was proved we know of necessity, from the principles which
underlie and govern electric lighting, that the contract must have been as above stated. If the
defendant should require the laborer thus placed in his house to work overtime and should not
pay the company therefor, thus taking advantage of the situation, there would be no larceny. To
be sure, the defendant would return the workman to the company fatigued and reduced in
strength by reason of the overtime he had required him to put in, but it would be the same
workman which he had received. It is this which shows the absurdity of the claim that the
defendant in this case is guilty of larceny. The company never intended to sell the workman to
the defendant and the defendant never expected to buy him. It was the use that was the basis of
the contract. In exactly the same manner the company never intended to sell electricity to the
defendant and the defendant never intended to buy electricity. The basis of the contract was the
use of electricity. Just as the laborer was returned by defendant to the company fatigued and
reduced in strength by reason of the overtime which the defendant had wrongfully and illegally
required him to put in, so the current of electricity was returned by the defendant to the company
fatigued and reduced in strength by reason of the lights which the defendant had wrongfully and
illegally caused it to supply; and just as, notwithstanding the reduction in strength, it was the
same identical workman returned that was sent out, so the electric current returned to the
company after the illegal use by defendant was the same identical current which the company
had furnished him. Where then, is the foundation for the charge of larceny?

Let us now see what are the results of the holding of the court that electricity is subject to
larceny.

The Spanish Law of the Philippine Islands has not been changed by any legislative enactment. A
cosa mueble is the same now as it was in the days of the Partidas. No legislature has changed the
law of larceny as it came from the jurisprudence of Rome and Spain. Nor has any legislature
touched the law of the personal chattel to give it a new definition or one which changes its
ancient signification. Its present definition is the same as that given by Sanchez Roman, Pacheco,
Scaevola, Manresa, and Groizard as drawn form the decrees of kings and acts of legislatures.
That definition having been framed by the lawmaking power of Spain, from the Partidas down to
the Penal Code, it ought not to be changed by any agency short of the lawmaking power of the
United States. The substance and nature of crime ought not to be changed by courts in a country
where crimes are purely statutory. It has the appearance of a usurpation of the functions of the
lawmaking body, an unwarrantable assumption of the legislative attributes.
The holding of the court in this case is, in effect, an amendment to the Penal Code. It has
changed materially the definition of a cosa mueble and, therefore, of the crime of larceny, as
made by the lawmaking bodies of Spain and the United States. I do not assert that the courts
have not the right to determine whether a given set of facts do or do not fulfill the definition of a
given crime. What I do say is that the very greatest care should be exercised in cases which may
involved as a consequence of their decision the changing of the scope of the substantive law of
crime. The fact, admitted by all, that whether the phenomenon which we call electricity really is
a "cosa mueble," under the accepted definition of that word, is open to doubt, should give us
pause. Before holding that electricity is a cosa mueble, the fact whether it is or not ought to be
substantially free from doubt, This is particularly true in a country where crimes are purely
statutory, and in which, therefore, the legislature is presumed to have had in mind in framing its
definition of "cosas muebles" only such chattels, or those of the same nature, as were known to
the legislature at the time it acted. At the time the Penal Code became operative substantially
nothing was known by those who created if of the phenomenon, electricity. It is more than clear
that at the time of the enactment of the laws relating to larceny, of which article 517 of the Penal
Code is a reproduction, nothing whatever was known of that phenomenon. We have, therefore,
no means of knowing what would have been the legislative action in relation thereto. The
legislative authorities of those times might have treated it as substantially every other legislative
body has treated it that has touched the question; namely, as a thing separate and distinct from
chattels, and unlawful acts affecting it and its use as crimes distinct from the crimes against
tangible property, such as robbery and larceny. In this jurisdiction the legislature is the only
authority for the definition of the crime. Where a new situation arises by virtue of discoveries
which reveal agencies never known before, and whose real nature is unknown even to the
discoverers the legislature is the body to take the initiative in determining the position of such
agencies among the affairs of men, unless they clearly fall within a class already established and
defined; and it appears that some legislative bodies have done that very thing and have passed
special laws touching the place which should be given electricity in the civil and criminal law.
This was done here by the passage of the ordinance of the city of Manila. The fact that
legislatures in many jurisdictions have enacted special laws relative to electricity is the very
clearest proof that there was the gravest doubt among learned men of the applicability of existing
laws to acts committed against the rights of producers of electricity. The legislature of the Islands
having acted through the council of the city of Manila and by such action made illegal acts
against the producers of electricity a special crime wholly distinct from larceny, such act should
be conclusive on this court as to the legislative intent.

Section 649 of the Revised Ordinance of the city of Manila provides in part:

No person shall, for any purpose whatsoever, use or enjoy the benefits of any device by
means of which he may fraudulently obtain any current of electricity or any telephone or
telegraph service; and the existence in any building or premises of any such device shall,
in the absence of satisfactory explanation, be deemed sufficient evidence of such use by
the person benefiting thereby.

This section was enacted under the authority of the Legislature of the Philippine Islands, as was
section 930 of said ordinances, by the terms of which one was violates the provisions of section
649 "shall be punished by a fine of not more than two hundred pesos or by imprisonment for not
more than six months, or both such fine and imprisonment, in the discretion of the court, for each
offense."

Articles 517 and 518 of the Penal Code read in part as follows:

ART. 517. The following are guilty of theft:

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

xxx xxx xxx

ART. 518. Those guilty of theft shall be punished:

1. With the penalty of presidio correccional in its medium and maximum degrees if the
value of the stolen property should exceed 6,250 pesetas.

2. With the penalty of presidio correccional in its minimum and medium degrees should
it not exceed 6,250, pesetas and be more than 1,250 pesetas.

3. With arresto mayor in its medium degree to presidio correccional in its minimum
degree should it not exceed 1,250 pesetas and be more than 250 pesetas.

4. With arresto mayor to its fullest extent should it be more than 25 but not exceed 250
pesetas.

5. With arresto mayor in its minimum and medium degrees if it should not exceed 25
pesetas; if exceeding 25 and not more than 65 pesetas, a theft of nutritious grains, fruits,
or wood shall be punished with a fine of room 325 to 500 pesetas.

Under subdivision 2 of the article last quoted, which is the paragraph under which the accused is
punished in the case at bar, the penalty prescribed is from six months and one day to four years
and two months. The accused in this case was actually sentenced to one year eight months and
twenty-one days of presidio correccional, to indemnify the company in the sum of P865.26, to
the corresponding subsidiary imprisonment in case of failure to pay said sum, and to the
accessory penalties provided by law.

Having before us these two laws, we may now see to what untoward and unfortunate results the
majority opinion leads us in holding that a person who commits a crime against an electric
current can be punished under either, or both, of two different statutes. As we have seen already
there is, relatively speaking, an enormous difference in the penalties prescribed by said law. That
imposed by the ordinance of the city of Manila can not in any event exceed six months'
imprisonment and a fine of P200; while that provided in the Penal Code may be as severe as four
years and two months imprisonment, with indemnity equal to the value of the property stolen,
with corresponding subsidiary imprisonment in case of nonpayment. To this must be added all
those accessory penalties prescribed by the code, such as suspension from any public office,
profession or trade, and from the right the suffrage. To me it is wholly unbelievable that, under
the circumstances of this case and the nature of the offense itself, it was the intention of the
legislative authority to permit the concurrent existence of two laws, both in force, punishing the
same crime with penalties which bear no relation to each other and which are widely different in
severity. Note what results from such a holding. Prosecution under the ordinance must be in the
municipal court. Prosecution under the Penal Code may be in the municipal court or it may be
and generally must be, as in this case, in the Court of First Instance. But it is certain that, under
the ordinance, every case may be prosecuted in the municipal court, whatever the value of the
electricity taken; or, if the value is sufficient, the prosecution may be brought in the Court of
First Instance. The selection of the court is left to the complaint. This means that the complaint is
able to say within certain limits what punishment shall be inflicted; for, if he desires that the
accused shall be lightly punished he will bring the action in the municipal court, which he
always can do if he wish, and if he desires to punish him very severely he will bring it in the
Court of First Instance, which he can generally do if he cares to. It is incoceivable that the
legislature intended that such a condition should exist. It is in violation of every sense of fairness,
is against every rule of statutory construction, and is clearly inimical to public policy. To assert
that the complaining in which he shall prosecute the accused but also, in effect, the crime of
which he shall be charged, as the decision in this case holds in effect, is to assert a proposition,
the bare statement of which is its own completest refutation.

For these reasons the judgment of conviction should be reversed.