G.R. No. 16513, U.S. v. Tambunting, 41 Phil.

364
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
DECISION
January 18, 1921
G.R. No. 16513
THE UNITED STATES, plaintiff-appellee,
vs.
MANUEL TAMBUNTING, defendant-appellant.
Manuel Garcia Goyena for appellant. Acting Attorney-General
Feria for appellee.
STREET, J .:
This appeal was instituted for the purpose of reversing a judgment of
the Court of First Instance of the city of Manila, finding the accused,
Manuel Tambunting, guilty of stealing a quantity of gas belonging to
the Manila Gas Corporation, and sentencing him to undergo
imprisonment for two months and one day, of arresto mayor, with
the accessories prescribed by law; to indemnify the said corporation
in the sum of P2, with subsidiary imprisonment in case of
insolvency; and to pay the costs.
The evidence submitted in behalf of the prosecution shows that in
January of the year 1918, the accused and his wife became occupants
of the upper floor of the house situated at No. 443, Calle Evangelista,
in the city of Manila. In this house the Manila Gas Corporation had
previously installed apparatus for the delivery of gas on both the
upper and lower floors, consisting of the necessary piping and a gas
meter, which last mentioned apparatus was installed below. When
the occupants at whose request this installation had been made
vacated the premises, the gas company disconnected the gas pipe and
removed the meter, thus cutting off the supply of gas from said
premises.
Upon June 2, 1919, one of the inspectors of the gas company visited
the house in question and found that gas was being used, without the
knowledge and consent of the gas company, for cooking in the
quarters occupied by the defendant and his wife: to effect which a
short piece of iron pipe had been inserted in the gap where the gas
meter had formerly been placed, and piece of rubber tubing had been
used to connect the gas pipe of rubber tubing had been used to
connect the gas pipe in kitchen with the gas stove, or plate, used for
cooking.
At the time this discovery was made, the accused, Manuel
Tambunting, was not at home, but he presently arrived and admitted
to the agent to the gas company that he had made the connection
with the rubber tubing between the gas pipe and the stove, though he
denied making the connection below. He also admitted that he knew
he was using gas without the knowledge of the company and that he
had been so using it for probably two or three months.
The clandestine use of gas by the accused in the manner stated is
thus established in our opinion beyond a doubt; and inasmuch as the
animo lucrandi is obvious, it only remains to consider, first, whether
gas can be the subject to larceny and, secondly, whether the quantity
of gas appropriated in the two months, during which the accused
admitted having used the same, has been established with sufficient
certainty to enable the court to fix an appropriate penalty.
Some legal minds, perhaps more academic than practical, have
entertained doubt upon the question whether gas can be the subject
of larceny; but no judicial decision has been called to our attention
wherein any respectable court has refused to treat it as such. In U.S.
vs. Genato (15 Phil., 170, 175), this court, speaking through Mr.
Justice Torres, said ". . . the right of the ownership of electric current
is secured by article 517 and 518 of the Penal Code; the application
of these articles in cases 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 of
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." These expressions were used in a case which involved
the subtraction and appropriation of electrical energy and the court
held, in accordance with the analogy of the case involving the theft
of gas, that electrical energy could also be the subject of theft. The
same conclusion was reached in U.S. vs. Carlos (21 Phil., 553),
which was also a case of prosecution for stealing electricity.
The precise point whether the taking of gas may constitute larceny
has never before, so far as the present writer is aware, been the
subject of adjudication in this court, but the decisions of Spanish,
English, and American courts all answer the question in the
affirmative. (See U.S. vs. Carlos, 21 Phil., 553, 560.)
In this connection it will suffice to quote the following from the topic
"Larceny," at page 34, Vol. 17, of Ruling Case Law:
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.
Likewise water which is confined in pipes and electricity which is
conveyed by wires are subjects of larceny."
As to the amount and value of the gas appropriated by the accused in
the period during which he admits having used it, the proof is not
entirely satisfactory. Nevertheless we think the trial court was
justified in fixing the value of the gas at P2 per month, which is the
minimum charge for gas made by the gas company, however small
the amount consumed. That is to say, no person desiring to use gas at
all for domestic purposes can purchase the commodity at a lower rate
per month than P2. There was evidence before the court showing that
the general average of the monthly bills paid by consumers
throughout the city for the use of gas in a kitchen equipped like that
used by the accused is from P18 to 20, while the average minimum is
about P8 per month. We think that the facts above stated are
competent evidence; and the conclusion is inevitable that the accused
is at least liable to the extent of the minimum charge of P2 per
month. The market value of the property at the time and place of the
theft is of court the proper value to be proven (17 R.C.L., p. 66); and
when it is found that the least amount that a consumer can take costs
P2 per months, this affords proof that the amount which the accused
took was certainly worth that much. Absolute certainty as to the full
amount taken is of course impossible, because no meter wad used;
but absolute certainty upon this point is not necessary, when it is
certain that the minimum that could have been taken was worth a
determinable amount.
It appears that before the present prosecution was instituted, the
accused had been unsuccessfully prosecuted for an infraction of
section 504 of the Revised Ordinances of the city of Manila, under a
complaint charging that the accused, not being a registered installer
of gas equipment had placed a gas installation in the house at No.
443, Calle Evangelista. Upon this it is argued for the accused that,
having been acquitted of that charge, he is not now subject to
prosecution for the offense of theft, having been acquitted of the
former charge. The contention is evidently not well-founded, since
the two offenses are of totally distinct nature. Furthermore, a
prosecution for violation of a city ordinance is not ordinarily a bar to
a subsequent prosecution for the same offense under the general law
of the land. (U.S. vs. Garcia Gavieres, 10 Phil., 694.)
The conclusion is that the accused is properly subject to punishment,
under No. 5 of article 518 of the Penal Code, for the gas taken in the
course of two months a the rate of P2 per month. There being no
aggravating or attenuating circumstance to be estimated, it results
that the proper penalty is two months and one day of arresto mayor,
as fixed by the trial court. The judgment will therefore be affirmed,
with costs against the appellant, it being understood that the amount
of the indemnity which the accused shall pay to the gas company is
P4, instead of P2, with subsidiary imprisonment for one day in case
of insolvency. So ordered.
Mapa, C.J., Araullo, Malcolm and Villamor, JJ., concur.




Caltex v. Central Board of Assesment
Caltex (Philippines) Inc., vs. Central Board of Assessment Appeals
and City Assessor of Pasay

Facts:
This case is about the realty tax on machinery and equipment
installed by Caltex (Philippines) Inc. in its gas stations located on
leased land. The machines and equipment consists of underground
tanks, elevated tank, elevated water tanks, water tanks, gasoline
pumps, computing pumps, water pumps, car washer, car hoists, truck
hoists, air compressors and tireflators. The city assessor of Pasay
City characterized the said items of gas station equipment and
machinery as taxable realty. The realty tax on said equipment
amounts to P4,541.10 annually (p. 52, Rollo). The city board of tax
appeals ruled that they are personalty. The assessor appealed to the
Central Board of Assessment Appeals. The Board, which was in its
decision of June 3, 1977 that the said machines and equipment are
real property under the Real Property Tax Code, Presidential Decree
No. 464, which took effect on June 1, 1974. The decision was
reiterated by the Board in its resolution of January 12, 1978, denying
Caltex's motion for reconsideration, a copy of which was received by
its lawyer on April 2, 1979.On May 2, 1979 Caltex filed this
certiorari petition wherein it prayed for the setting aside of the
Board's decision and for a declaration that t he said machines and
equipment are personal property not subject to realty tax. We hold
that the said equipment and machinery, as appurtenances to the gas
station building or shed owned by Caltex (as to which it is subject to
realty tax) and which fixtures are necessary to the operation of the
gas station, for without them the gas station would be useless, and
which have been attached or affixed permanently to the gas station
site or embedded therein, are taxable improvements and machinery
within the meaning of the Assessment Law and the Real Property
Tax Code. Caltex invokes the rule that machinery which is movable
in its nature only becomes immobilized when placed in a plant by the
owner of the property or plant but not when so placed by a tenant, a
usufructuary, or any person having only a temporary right, unless
such person acted as the agent of the owner (Davao Saw Mill Co. vs.
Castillo, 61 Phil 709).

Issue:
Whether the pieces of gas station equipment and machinery already
enumerated are subject to realty tax

Held:
Yes. This issue has to be resolved primarily under the provisions of
the Assessment Law and the Real Property Tax Code. Under, Sec. 38
of the said law: Machinery shall embrace machines, mechanical
contrivances, instruments, appliances and apparatus attached to the
real estate. It includes the physical facilities available for production,
as well as the installations and appurtenant service facilities, together
with all other equipment designed for or essential to its
manufacturing, industrial or agricultural purposes. The equipment
and machinery, are considered as appurtenances to the gas station
building or shed owned by Caltex (as to which it is subject to realty
tax) and which fixtures are necessary to the operation of the gas
station, for without them the gas station would be useless, and which
have been attached or affixed permanently to the gas station site or
embedded therein, are taxable improvements and machinery within
the meaning of the Assessment Law and the Real Property Tax
Code. Improvements on land are commonly taxed as realty even
though for some purposes they might be considered personalty. "It is
a familiar phenomenon to see things classed as real property for
purposes of taxation which on general principle might be considered
personal property"



DAVAO SAW MILL vs. APRONIANO G. CASTILLO and
DAVAO LIGHT & POWER CO., INC. G.R. No. L-40411 August 7,
1935

Facts:
Davao Saw Mill Co., Inc., is the holder of a lumber concession from
the Government of the Philippine Islands. However, the land upon
which the business was conducted belonged to another person. On
the land the sawmill company erected a building which housed the
machinery used by it. Some of the implements thus used were clearly
personal property, the conflict concerning machines which were
placed and mounted on foundations of cement. In the contract of
lease between the sawmill company and the owner of the land there
appeared the following provision: That on the expiration of the
period agreed upon, all the improvements and buildings introduced
and erected by the party of the second part shall pass to the exclusive
ownership of the lessor without any obligation on its part to pay any
amount for said improvements and buildings; which do not include
the machineries and accessories in the improvements.

In another action wherein the Davao Light & Power Co., Inc., was
the plaintiff and the Davao, Saw, Mill Co., Inc., was the defendant, a
judgment was rendered in favor of the plaintiff in that action against
the defendant; a writ of execution issued thereon, and the properties
now in question were levied upon as personalty by the sheriff. No
third party claim was filed for such properties at the time of the sales
thereof as is borne out by the record made by the plaintiff herein

It must be noted also that on number of occasion, Davao Sawmill
treated the machinery as personal property by executing chattel
mortgages in favor of third persons. One of such is the appellee by
assignment from the original mortgages.

The lower court rendered decision in favor of the defendants herein.
Hence, this instant appeal.

Issue:
whether or not the machineries and equipments were personal in
nature.

Ruling/ Rationale:
Yes. The Supreme Court affirmed the decision of the lower court.

Machinery which is movable in its nature only becomes immobilized
when placed in a plant by the owner of the property or plant, but not
when so placed by a tenant, a usufructuary, or any person having
only a temporary right, unless such person acted as the agent of the
owner.

TUMALAD vs. VICENCIO, G.R. No. L-30173,
September 30, 1971
TUMALAD V. VICENCIO
41 SCRA 143

FACTS:

Vicencio and Simeon executed a chattel mortgage in favor of
plaintiffs Tumalad over their house, which was being rented by
Madrigal and company. This was executed to guarantee a loan,
payable in one year with a 12% per annum interest.

The mortgage was extrajudicially foreclosed upon failure to pay the
loan. The house was sold at a public auction and the plaintiffs were
the highest bidder. A corresponding certificate of sale was issued.
Thereafter, the plaintiffs filed an action for ejectment against the
defendants, praying that the latter vacate the house as they were the
proper owners.

ISSUE:

W/N the chattel mortgage was null and void ab initio because only
personal properties can be subject of a chattel mortgage.

HELD:

Certain deviations have been allowed from the general doctrine that
buildings are immovable property such as when through stipulation,
parties may agree to treat as personal property those by their nature
would be real property. This is partly based on the principle of
estoppel wherein the principle is predicated on statements by the
owner declaring his house as chattel, a conduct that may conceivably
stop him from subsequently claiming otherwise.

In the case at bar, though there be no specific statement referring to
the subject house as personal property, yet by ceding, selling or
transferring a property through chattel mortgage could only have
meant that defendant conveys the house as chattel, or at least,
intended to treat the same as such, so that they should not now be
allowed to make an inconsistent stand by claiming otherwise.

PHILIPPINE REFINING COMPANY V. JARQUE

FACTS:
Plaintiff Philippine Refining Co. and defendant Jarque executed
three mortgages on the motor vessels Pandan and Zargazo. The
documents were recorded as transfer and encumbrances of the
vessels for the port of Cebu and each was denominated a chattel
mortgage.

The first two mortgages did not have an affidavit of good faith. A
fourth mortgage was executed by Jarque and Ramon Aboitiz over
motorship Zaragoza and was entered in the Chattel Mortgage
Registry on May 12, 1932, within the period of 30 days prior to the
foreclosure/institution of the insolvency proceedings.

Jose Curaminas filed with the CFI of Cebu a petition praying that
Francisco Jarque be declared an insolvent debtor. This was granted
and Jarques properties were then assigned to Curaminas.

A problem arose when Judge Jose Hontiveros declined to order the
foreclosure of the mortgages, and instead, ruled that they were
defective because they did not have affidavits of good faith.

ISSUE:
1. Whether or not the mortgages of the vessels are governed by
the Chattel Mortgage Law
2. Whether or not an affidavit of good faith is needed to
enforce achattel mortgage on a vessel

RULING:
Yes. Personal property includes vessels. They are subject to the
provisions of the Chattel Mortgage Law. The Chattel Mortgage Law
says that a good chattel mortgage includes an affidavit of good faith.
The absence of such affidavit makes mortgage unenforceable against
creditors and subsequent encumbrances. The judge was correct.

Note: A mortgage on a vessel is generally like other chattel
mortgages. The only difference between a chattel mortgage of a
vessel and a chattel mortgage of other personalty is that the first must
be noted in the registry of the register of deeds.