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 seventyseven 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 ofestafa 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
takingwithout 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 awaywithout 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
thanenergy. 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 ofcondition. 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 conditionapart 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 orchattel 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 theamount 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 mueblewhile 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 acondition 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 merecharacteristic 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 withthings,
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 legallyconvict 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 itsdefinition. 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.
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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
thetaking 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 appropriatedas 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, corporealchattels 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.
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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.
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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
bepersonal 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 electromotive 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 trademark 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.
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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.
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. . . 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.
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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 theablatio.
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), theelectricity 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.
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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 thecomplaint 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.
FIRST DIVISION
G.R. No. 155076

February 27, 2006

LUIS MARCOS P. LAUREL, Petitioner,

vs.
HON. ZEUS C. ABROGAR, Presiding Judge of the Regional Trial Court,
Makati City, Branch 150, PEOPLE OF THE PHILIPPINES& PHILIPPINE
LONG DISTANCE TELEPHONE COMPANY, Respondents.
DECISION
CALLEJO, SR., J.:
Before us is a Petition for Review on Certiorari of the Decision1 of the Court
of Appeals (CA) in CA-G.R. SP No. 68841 affirming the Order issued by
Judge Zeus C. Abrogar, Regional Trial Court (RTC), Makati City, Branch 150,
which denied the "Motion to Quash (With Motion to Defer Arraignment)" in
Criminal Case No. 99-2425 for theft.
Philippine Long Distance Telephone Company (PLDT) is the holder of a
legislative franchise to render local and international telecommunication
services under Republic Act No. 7082.2 Under said law, PLDT is authorized to
establish, operate, manage, lease, maintain and purchase
telecommunication systems, including transmitting, receiving and switching
stations, for both domestic and international calls. For this purpose, it has
installed an estimated 1.7 million telephone lines nationwide. PLDT also
offers other services as authorized by Certificates of Public Convenience and
Necessity (CPCN) duly issued by the National Telecommunications
Commission (NTC), and operates and maintains an International Gateway
Facility (IGF). The PLDT network is thus principally composed of the Public
Switch Telephone Network (PSTN), telephone handsets and/or
telecommunications equipment used by its subscribers, the wires and cables
linking said telephone handsets and/or telecommunications equipment,

antenna, the IGF, and other telecommunications equipment which provide

interconnections.3 1avvphil.net
PLDT alleges that one of the alternative calling patterns that constitute
network fraud and violate its network integrity is that which is known as
International Simple Resale (ISR). ISR is a method of routing and
completing international long distance calls using International Private
Leased Lines (IPL), cables, antenna or air wave or frequency, which connect
directly to the local or domestic exchange facilities of the terminating
country (the country where the call is destined). The IPL is linked to
switching equipment which is connected to a PLDT telephone line/number. In
the process, the calls bypass the IGF found at the terminating country, or in
some instances, even those from the originating country.4
One such alternative calling service is that offered by Baynet Co., Ltd.
(Baynet) which sells "Bay Super Orient Card" phone cards to people who call
their friends and relatives in the Philippines. With said card, one is entitled to
a 27-minute call to the Philippines for about 37.03 per minute. After dialing
the ISR access number indicated in the phone card, the ISR operator
requests the subscriber to give the PIN number also indicated in the phone
card. Once the callers identity (as purchaser of the phone card) is
confirmed, the ISR operator will then provide a Philippine local line to the
requesting caller via the IPL. According to PLDT, calls made through the IPL
never pass the toll center of IGF operators in the Philippines. Using the local
line, the Baynet card user is able to place a call to any point in the
Philippines, provided the local line is National Direct Dial (NDD) capable. 5
PLDT asserts that Baynet conducts its ISR activities by utilizing an IPL to
course its incoming international long distance calls from Japan. The IPL is
linked to switching equipment, which is then connected to PLDT telephone
lines/numbers and equipment, with Baynet as subscriber. Through the use of
the telephone lines and other auxiliary equipment, Baynet is able to connect
an international long distance call from Japan to any part of the Philippines,
and make it appear as a call originating from Metro Manila. Consequently,
the operator of an ISR is able to evade payment of access, termination or
bypass charges and accounting rates, as well as compliance with the
regulatory requirements of the NTC. Thus, the ISR operator offers
international telecommunication services at a lower rate, to the damage and
prejudice of legitimate operators like PLDT.6
PLDT pointed out that Baynet utilized the following equipment for its ISR
activities: lines, cables, and antennas or equipment or device capable of
transmitting air waves or frequency, such as an IPL and telephone lines and
equipment; computers or any equipment or device capable of accepting
information applying the prescribed process of the information and supplying
the result of this process; modems or any equipment or device that enables
a data terminal equipment such as computers to communicate with other
data terminal equipment via a telephone line; multiplexers or any equipment

or device that enables two or more signals from different sources to pass
through a common cable or transmission line; switching equipment, or
equipment or device capable of connecting telephone lines; and software,
diskettes, tapes or equipment or device used for recording and storing
information.7
PLDT also discovered that Baynet subscribed to a total of 123 PLDT
telephone lines/numbers.8 Based on the Traffic Study conducted on the
volume of calls passing through Baynets ISR network which bypass the IGF
toll center, PLDT incurred an estimated monthly loss of
P10,185,325.96.9 Records at the Securities and Exchange Commission (SEC)
also revealed that Baynet was not authorized to provide international or
domestic long distance telephone service in the country. The following are its
officers: Yuji Hijioka, a Japanese national (chairman of the board of
directors); Gina C. Mukaida, a Filipina (board member and president); Luis
Marcos P. Laurel, a Filipino (board member and corporate secretary); Ricky
Chan Pe, a Filipino (board member and treasurer); and Yasushi Ueshima,
also a Japanese national (board member).
Upon complaint of PLDT against Baynet for network fraud, and on the
strength of two search warrants10 issued by the RTC of Makati, Branch 147,
National Bureau of Investigation (NBI) agents searched its office at the 7th
Floor, SJG Building, Kalayaan Avenue, Makati City on November 8, 1999.
Atsushi Matsuura, Nobuyoshi Miyake, Edourd D. Lacson and Rolando J.
Villegas were arrested by NBI agents while in the act of manning the
operations of Baynet. Seized in the premises during the search were
numerous equipment and devices used in its ISR activities, such as
multiplexers, modems, computer monitors, CPUs, antenna, assorted
computer peripheral cords and microprocessors, cables/wires, assorted PLDT
statement of accounts, parabolic antennae and voltage regulators.
State Prosecutor Ofelia L. Calo conducted an inquest investigation and issued
a Resolution11 on January 28, 2000, finding probable cause for theft under
Article 308 of the Revised Penal Code and Presidential Decree No.
40112 against the respondents therein, including Laurel.
On February 8, 2000, State Prosecutor Calo filed an Information with the
RTC of Makati City charging Matsuura, Miyake, Lacson and Villegas with theft
under Article 308 of the Revised Penal Code. After conducting the requisite
preliminary investigation, the State Prosecutor filed an Amended Information
impleading Laurel (a partner in the law firm of Ingles, Laurel, Salinas, and,
until November 19, 1999, a member of the board of directors and corporate
secretary of Baynet), and the other members of the board of directors of
said corporation, namely, Yuji Hijioka, Yasushi Ueshima, Mukaida, Lacson
and Villegas, as accused for theft under Article 308 of the Revised Penal
Code. The inculpatory portion of the Amended Information reads:

On or about September 10-19, 1999, or prior thereto, in Makati City, and

within the jurisdiction of this Honorable Court, the accused, conspiring and
confederating together and all of them mutually helping and aiding one
another, with intent to gain and without the knowledge and consent of the
Philippine Long Distance Telephone (PLDT), did then and there willfully,
unlawfully and feloniously take, steal and use the international long distance
calls belonging to PLDT by conducting International Simple Resale (ISR),
which is a method of routing and completing international long distance calls
using lines, cables, antennae, and/or air wave frequency which connect
directly to the local or domestic exchange facilities of the country where the
call is destined, effectively stealing this business from PLDT while using its
facilities in the estimated amount of P20,370,651.92 to the damage and
prejudice of PLDT, in the said amount.
CONTRARY TO LAW.13
Accused Laurel filed a "Motion to Quash (with Motion to Defer Arraignment)"
on the ground that the factual allegations in the Amended Information do
not constitute the felony of theft under Article 308 of the Revised Penal
Code. He averred that the Revised Penal Code, or any other special penal
law for that matter, does not prohibit ISR operations. He claimed that
telephone calls with the use of PLDT telephone lines, whether domestic or
international, belong to the persons making the call, not to PLDT. He argued
that the caller merely uses the facilities of PLDT, and what the latter owns
are the telecommunication infrastructures or facilities through which the call
is made. He also asserted that PLDT is compensated for the callers use of its
facilities by way of rental; for an outgoing overseas call, PLDT charges the
caller per minute, based on the duration of the call. Thus, no personal
property was stolen from PLDT. According to Laurel, the P20,370,651.92
stated in the Information, if anything, represents the rental for the use of
PLDT facilities, and not the value of anything owned by it. Finally, he averred
that the allegations in the Amended Information are already subsumed
under the Information for violation of Presidential Decree (P.D.) No. 401 filed
and pending in the Metropolitan Trial Court of Makati City, docketed as
Criminal Case No. 276766.
The prosecution, through private complainant PLDT, opposed the
motion,14 contending that the movant unlawfully took personal property
belonging to it, as follows: 1) intangible telephone services that are being
offered by PLDT and other telecommunication companies, i.e., the
connection and interconnection to their telephone lines/facilities; 2) the use
of those facilities over a period of time; and 3) the revenues derived in
connection with the rendition of such services and the use of such facilities. 15
The prosecution asserted that the use of PLDTs intangible telephone
services/facilities allows electronic voice signals to pass through the same,
and ultimately to the called partys number. It averred that such
service/facility is akin to electricity which, although an intangible property,

may, nevertheless, be appropriated and be the subject of theft. Such service

over a period of time for a consideration is the business that PLDT provides
to its customers, which enables the latter to send various messages to
installed recipients. The service rendered by PLDT is akin to merchandise
which has specific value, and therefore, capable of appropriation by another,
as in this case, through the ISR operations conducted by the movant and his
co-accused.
The prosecution further alleged that "international business calls and
revenues constitute personal property envisaged in Article 308 of the
Revised Penal Code." Moreover, the intangible telephone services/facilities
belong to PLDT and not to the movant and the other accused, because they
have no telephone services and facilities of their own duly authorized by the
NTC; thus, the taking by the movant and his co-accused of PLDT services
was with intent to gain and without the latters consent.
The prosecution pointed out that the accused, as well as the movant, were
paid in exchange for their illegal appropriation and use of PLDTs telephone
services and facilities; on the other hand, the accused did not pay a single
centavo for their illegal ISR operations. Thus, the acts of the accused were
akin to the use of a "jumper" by a consumer to deflect the current from the
house electric meter, thereby enabling one to steal electricity. The
prosecution emphasized that its position is fortified by the Resolutions of the
Department of Justice in PLDT v. Tiongson, et al. (I.S. No. 97-0925) and in
PAOCTF-PLDT v. Elton John Tuason, et al. (I.S. No. 2000-370) which were
issued on August 14, 2000 finding probable cause for theft against the
respondents therein.
On September 14, 2001, the RTC issued an Order16 denying the Motion to
Quash the Amended Information. The court declared that, although there is
no law that expressly prohibits the use of ISR, the facts alleged in the
Amended Information "will show how the alleged crime was committed by
conducting ISR," to the damage and prejudice of PLDT.
Laurel filed a Motion for Reconsideration17 of the Order, alleging that
international long distance calls are not personal property, and are not
capable of appropriation. He maintained that business or revenue is not
considered personal property, and that the prosecution failed to adduce
proof of its existence and the subsequent loss of personal property belonging
to another. Citing the ruling of the Court in United States v. De
Guzman,18Laurel averred that the case is not one with telephone calls which
originate with a particular caller and terminates with the called party. He
insisted that telephone calls are considered privileged communications under
the Constitution and cannot be considered as "the property of PLDT." He
further argued that there is no kinship between telephone calls and
electricity or gas, as the latter are forms of energy which are generated and
consumable, and may be considered as personal property because of such

characteristic. On the other hand, the movant argued, the telephone

business is not a form of energy but is an activity.
In its Order19 dated December 11, 2001, the RTC denied the movants Motion
for Reconsideration. This time, it ruled that what was stolen from PLDT was
its "business" because, as alleged in the Amended Information, the
international long distance calls made through the facilities of PLDT formed
part of its business. The RTC noted that the movant was charged with
stealing the business of PLDT. To support its ruling, it cited Strochecker v.
Ramirez,20 where the Court ruled that interest in business is personal
property capable of appropriation. It further declared that, through their ISR
operations, the movant and his co-accused deprived PLDT of fees for
international long distance calls, and that the ISR used by the movant and
his co-accused was no different from the "jumper" used for stealing
electricity.
Laurel then filed a Petition for Certiorari with the CA, assailing the Order of
the RTC. He alleged that the respondent judge gravely abused his discretion
in denying his Motion to Quash the Amended Information. 21 As gleaned from
the material averments of the amended information, he was charged with
stealing the international long distance calls belonging to PLDT, not its
business. Moreover, the RTC failed to distinguish between the business of
PLDT (providing services for international long distance calls) and the
revenues derived therefrom. He opined that a "business" or its revenues
cannot be considered as personal property under Article 308 of the Revised
Penal Code, since a "business" is "(1) a commercial or mercantile activity
customarily engaged in as a means of livelihood and typically involving some
independence of judgment and power of decision; (2) a commercial or
industrial enterprise; and (3) refers to transactions, dealings or intercourse
of any nature." On the other hand, the term "revenue" is defined as "the
income that comes back from an investment (as in real or personal
property); the annual or periodical rents, profits, interests, or issues of any
species of real or personal property."22
Laurel further posited that an electric companys business is the production
and distribution of electricity; a gas companys business is the production
and/or distribution of gas (as fuel); while a water companys business is the
production and distribution of potable water. He argued that the "business"
in all these cases is the commercial activity, while the goods and
merchandise are the products of such activity. Thus, in prosecutions for theft
of certain forms of energy, it is the electricity or gas which is alleged to be
stolen and not the "business" of providing electricity or gas. However, since a
telephone company does not produce any energy, goods or merchandise and
merely renders a service or, in the words of PLDT, "the connection and
interconnection to their telephone lines/facilities," such service cannot be the
subject of theft as defined in Article 308 of the Revised Penal Code. 23

He further declared that to categorize "business" as personal property under

Article 308 of the Revised Penal Code would lead to absurd consequences; in
prosecutions for theft of gas, electricity or water, it would then be
permissible to allege in the Information that it is the gas business, the
electric business or the water business which has been stolen, and no longer
the merchandise produced by such enterprise.24
Laurel further cited the Resolution of the Secretary of Justice in Piltel v.
Mendoza,25 where it was ruled that the Revised Penal Code, legislated as it
was before present technological advances were even conceived, is not
adequate to address the novel means of "stealing" airwaves or airtime. In
said resolution, it was noted that the inadequacy prompted the filing of
Senate Bill 2379 (sic) entitled "The Anti-Telecommunications Fraud of 1997"
to deter cloning of cellular phones and other forms of communications fraud.
The said bill "aims to protect in number (ESN) (sic) or Capcode, mobile
identification number (MIN), electronic-international mobile equipment
identity (EMEI/IMEI), or subscriber identity module" and "any attempt to
duplicate the data on another cellular phone without the consent of a public
telecommunications entity would be punishable by law." 26 Thus, Laurel
concluded, "there is no crime if there is no law punishing the crime."
On August 30, 2002, the CA rendered judgment dismissing the
petition.27 The appellate court ruled that a petition for certiorari under Rule
65 of the Rules of Court was not the proper remedy of the petitioner. On the
merits of the petition, it held that while business is generally an activity
which is abstract and intangible in form, it is nevertheless considered
"property" under Article 308 of the Revised Penal Code. The CA opined that
PLDTs business of providing international calls is personal property which
may be the object of theft, and cited United States v. Carlos28 to support
such conclusion. The tribunal also cited Strochecker v. Ramirez, 29 where this
Court ruled that one-half interest in a days business is personal property
under Section 2 of Act No. 3952, otherwise known as the Bulk Sales Law.
The appellate court held that the operations of the ISR are not subsumed in
the charge for violation of P.D. No. 401.
Laurel, now the petitioner, assails the decision of the CA, contending that THE COURT OF APPEALS ERRED IN RULING THAT THE PERSONAL
PROPERTY ALLEGEDLY STOLEN PER THE INFORMATION IS NOT THE
"INTERNATIONAL LONG DISTANCE CALLS" BUT THE "BUSINESS OF
PLDT."
THE COURT OF APPEALS ERRED IN RULING THAT THE TERM
"BUSINESS" IS PERSONAL PROPERTY WITHIN THE MEANING OF ART.
308 OF THE REVISED PENAL CODE.30

Petitioner avers that the petition for a writ of certiorari may be filed to nullify
an interlocutory order of the trial court which was issued with grave abuse of
discretion amounting to excess or lack of jurisdiction. In support of his
petition before the Court, he reiterates the arguments in his pleadings filed
before the CA. He further claims that while the right to carry on a business
or an interest or participation in business is considered property under the
New Civil Code, the term "business," however, is not. He asserts that the
Philippine Legislature, which approved the Revised Penal Code way back in
January 1, 1932, could not have contemplated to include international long
distance calls and "business" as personal property under Article 308 thereof.
In its comment on the petition, the Office of the Solicitor General (OSG)
maintains that the amended information clearly states all the essential
elements of the crime of theft. Petitioners interpretation as to whether an
"international long distance call" is personal property under the law is
inconsequential, as a reading of the amended information readily reveals
that specific acts and circumstances were alleged charging Baynet, through
its officers, including petitioner, of feloniously taking, stealing and illegally
using international long distance calls belonging to respondent PLDT by
conducting ISR operations, thus, "routing and completing international long
distance calls using lines, cables, antenna and/or airwave frequency which
connect directly to the local or domestic exchange facilities of the country
where the call is destined." The OSG maintains that the international long
distance calls alleged in the amended information should be construed to
mean "business" of PLDT, which, while abstract and intangible in form, is
personal property susceptible of appropriation.31 The OSG avers that what
was stolen by petitioner and his co-accused is the business of PLDT providing
international long distance calls which, though intangible, is personal
property of the PLDT.32
For its part, respondent PLDT asserts that personal property under Article
308 of the Revised Penal Code comprehends intangible property such as
electricity and gas which are valuable articles for merchandise, brought and
sold like other personal property, and are capable of appropriation. It insists
that the business of international calls and revenues constitute personal
property because the same are valuable articles of merchandise. The
respondent reiterates that international calls involve (a) the intangible
telephone services that are being offered by it, that is, the connection and
interconnection to the telephone network, lines or facilities; (b) the use of its
telephone network, lines or facilities over a period of time; and (c) the
income derived in connection therewith.33
PLDT further posits that business revenues or the income derived in
connection with the rendition of such services and the use of its telephone
network, lines or facilities are personal properties under Article 308 of the
Revised Penal Code; so is the use of said telephone services/telephone
network, lines or facilities which allow electronic voice signals to pass

through the same and ultimately to the called partys number. It is akin to
electricity which, though intangible property, may nevertheless be
appropriated and can be the object of theft. The use of respondent PLDTs
telephone network, lines, or facilities over a period of time for consideration
is the business that it provides to its customers, which enables the latter to
send various messages to intended recipients. Such use over a period of
time is akin to merchandise which has value and, therefore, can be
appropriated by another. According to respondent PLDT, this is what actually
happened when petitioner Laurel and the other accused below conducted
illegal ISR operations.34
The petition is meritorious.
The issues for resolution are as follows: (a) whether or not the petition for
certiorari is the proper remedy of the petitioner in the Court of Appeals; (b)
whether or not international telephone calls using Bay Super Orient Cards
through the telecommunication services provided by PLDT for such calls, or,
in short, PLDTs business of providing said telecommunication services, are
proper subjects of theft under Article 308 of the Revised Penal Code; and (c)
whether or not the trial court committed grave abuse of discretion
amounting to excess or lack of jurisdiction in denying the motion of the
petitioner to quash the amended information.
On the issue of whether or not the petition for certiorari instituted by the
petitioner in the CA is proper, the general rule is that a petition for certiorari
under Rule 65 of the Rules of Court, as amended, to nullify an order denying
a motion to quash the Information is inappropriate because the aggrieved
party has a remedy of appeal in the ordinary course of law. Appeal and
certiorari are mutually exclusive of each other. The remedy of the aggrieved
party is to continue with the case in due course and, when an unfavorable
judgment is rendered, assail the order and the decision on appeal. However,
if the trial court issues the order denying the motion to quash the Amended
Information with grave abuse of discretion amounting to excess or lack of
jurisdiction, or if such order is patently erroneous, or null and void for being
contrary to the Constitution, and the remedy of appeal would not afford
adequate and expeditious relief, the accused may resort to the extraordinary
remedy of certiorari.35 A special civil action for certiorari is also available
where there are special circumstances clearly demonstrating the inadequacy
of an appeal. As this Court held in Bristol Myers Squibb (Phils.), Inc. v.
Viloria:36
Nonetheless, the settled rule is that a writ of certiorari may be granted in
cases where, despite availability of appeal after trial, there is at least a
prima facie showing on the face of the petition and its annexes that: (a) the
trial court issued the order with grave abuse of discretion amounting to lack
of or in excess of jurisdiction; (b) appeal would not prove to be a speedy and
adequate remedy; (c) where the order is a patent nullity; (d) the decision in

the present case will arrest future litigations; and (e) for certain
considerations such as public welfare and public policy.37
In his petition for certiorari in the CA, petitioner averred that the trial court
committed grave abuse of its discretion amounting to excess or lack of
jurisdiction when it denied his motion to quash the Amended Information
despite his claim that the material allegations in the Amended Information
do not charge theft under Article 308 of the Revised Penal Code, or any
offense for that matter. By so doing, the trial court deprived him of his
constitutional right to be informed of the nature of the charge against him.
He further averred that the order of the trial court is contrary to the
constitution and is, thus, null and void. He insists that he should not be
compelled to undergo the rigors and tribulations of a protracted trial and
incur expenses to defend himself against a non-existent charge.
Petitioner is correct.
An information or complaint must state explicitly and directly every act or
omission constituting an offense38 and must allege facts establishing conduct
that a penal statute makes criminal;39 and describes the property which is
the subject of theft to advise the accused with reasonable certainty of the
accusation he is called upon to meet at the trial and to enable him to rely on
the judgment thereunder of a subsequent prosecution for the same
offense.40 It must show, on its face, that if the alleged facts are true, an
offense has been committed. The rule is rooted on the constitutional right of
the accused to be informed of the nature of the crime or cause of the
accusation against him. He cannot be convicted of an offense even if proven
unless it is alleged or necessarily included in the Information filed against
him.
As a general prerequisite, a motion to quash on the ground that the
Information does not constitute the offense charged, or any offense for that
matter, should be resolved on the basis of said allegations whose truth and
veracity are hypothetically committed;41 and on additional facts admitted or
not denied by the prosecution.42 If the facts alleged in the Information do not
constitute an offense, the complaint or information should be quashed by the
court.43
We have reviewed the Amended Information and find that, as mentioned by
the petitioner, it does not contain material allegations charging the petitioner
of theft of personal property under Article 308 of the Revised Penal Code. It,
thus, behooved the trial court to quash the Amended Information. The Order
of the trial court denying the motion of the petitioner to quash the Amended
Information is a patent nullity.
On the second issue, we find and so hold that the international telephone
calls placed by Bay Super Orient Card holders, the telecommunication
services provided by PLDT and its business of providing said services are not

personal properties under Article 308 of the Revised Penal Code. The
construction by the respondents of Article 308 of the said Code to include,
within its coverage, the aforesaid international telephone calls,
telecommunication services and business is contrary to the letter and intent
of the law.
The rule is that, penal laws are to be construed strictly. Such rule is founded
on the tenderness of the law for the rights of individuals and on the plain
principle that the power of punishment is vested in Congress, not in the
judicial department. It is Congress, not the Court, which is to define a crime,
and ordain its punishment.44 Due respect for the prerogative of Congress in
defining crimes/felonies constrains the Court to refrain from a broad
interpretation of penal laws where a "narrow interpretation" is appropriate.
The Court must take heed to language, legislative history and purpose, in
order to strictly determine the wrath and breath of the conduct the law
forbids.45However, when the congressional purpose is unclear, the court must
apply the rule of lenity, that is, ambiguity concerning the ambit of criminal
statutes should be resolved in favor of lenity.46
Penal statutes may not be enlarged by implication or intent beyond the fair
meaning of the language used; and may not be held to include offenses
other than those which are clearly described, notwithstanding that the Court
may think that Congress should have made them more
comprehensive.47 Words and phrases in a statute are to be construed
according to their common meaning and accepted usage.
As Chief Justice John Marshall declared, "it would be dangerous, indeed, to
carry the principle that a case which is within the reason or
mischief of a statute is within its provision, so far as to punish a crime not
enumerated in the statute because it is of equal atrocity, or of kindred
character with those which are enumerated.48 When interpreting a criminal
statute that does not explicitly reach the conduct in question, the Court
should not base an expansive reading on inferences from subjective and
variable understanding.49
Article 308 of the Revised Penal Code defines theft as follows:
Art. 308. Who are liable for theft. Theft is committed by any person who,
with intent to gain but without violence, against or intimidation of persons
nor force upon things, shall take personal property of another without the
latters consent.
The provision was taken from Article 530 of the Spanish Penal Code which
reads:

1. Los que con nimo de lucrarse, y sin violencia o intimidacin en las

personas ni fuerza en las cosas, toman las cosas muebles ajenas sin la
voluntad de su dueo.50
For one to be guilty of theft, the accused must have an intent to steal
(animus furandi) personal property, meaning the intent to deprive another of
his ownership/lawful possession of personal property which intent is apart
from and concurrently with the general criminal intent which is an essential
element of a felony of dolo (dolus malus).
An information or complaint for simple theft must allege the following
elements: (a) the taking of personal property; (b) the said property belongs
to another; (c) the taking be done with intent to gain; and (d) the taking be
accomplished without the use of violence or intimidation of person/s or force
upon things.51
One is apt to conclude that "personal property" standing alone, covers both
tangible and intangible properties and are subject of theft under the Revised
Penal Code. But the words "Personal property" under the Revised Penal Code
must be considered in tandem with the word "take" in the law. The statutory
definition of "taking" and movable property indicates that, clearly, not all
personal properties may be the proper subjects of theft. The general rule is
that, only movable properties which have physical or material existence and
susceptible of occupation by another are proper objects of theft.52 As
explained by Cuelo Callon: "Cosa juridicamente es toda sustancia corporal,
material, susceptible de ser aprehendida que tenga un valor cualquiera." 53
According to Cuello Callon, in the context of the Penal Code, only those
movable properties which can be taken and carried from the place they are
found are proper subjects of theft. Intangible properties such as rights and
ideas are not subject of theft because the same cannot be "taken" from the
place it is found and is occupied or appropriated.
Solamente las cosas muebles y corporales pueden ser objeto de hurto. La
sustraccin de cosas inmuebles y la cosas incorporales (v. gr., los derechos,
las ideas) no puede integrar este delito, pues no es posible asirlas, tomarlas,
para conseguir su apropiacin. El Codigo emplea la expresin "cosas
mueble" en el sentido de cosa que es susceptible de ser llevada del lugar
donde se encuentra, como dinero, joyas, ropas, etctera, asi que su
concepto no coincide por completo con el formulado por el Codigo civil (arts.
335 y 336).54
Thus, movable properties under Article 308 of the Revised Penal Code should
be distinguished from the rights or interests to which they relate. A naked
right existing merely in contemplation of law, although it may be very
valuable to the person who is entitled to exercise it, is not the subject of
theft or larceny.55 Such rights or interests are intangible and cannot be
"taken" by another. Thus, right to produce oil, good will or an interest in

business, or the right to engage in business, credit or franchise are

properties. So is the credit line represented by a credit card. However, they
are not proper subjects of theft or larceny because they are without form or
substance, the mere "breath" of the Congress. On the other hand, goods,
wares and merchandise of businessmen and credit cards issued to them are
movable properties with physical and material existence and may be taken
by another; hence, proper subjects of theft.
There is "taking" of personal property, and theft is consummated when the
offender unlawfully acquires possession of personal property even if for a
short time; or if such property is under the dominion and control of the thief.
The taker, at some particular amount, must have obtained complete and
absolute possession and control of the property adverse to the rights of the
owner or the lawful possessor thereof.56 It is not necessary that the property
be actually carried away out of the physical possession of the lawful
possessor or that he should have made his escape with it. 57 Neither
asportation nor actual manual possession of property is required.
Constructive possession of the thief of the property is enough. 58
The essence of the element is the taking of a thing out of the possession of
the owner without his privity and consent and without animus revertendi. 59
Taking may be by the offenders own hands, by his use of innocent persons
without any felonious intent, as well as any mechanical device, such as an
access device or card, or any agency, animate or inanimate, with intent to
gain. Intent to gain includes the unlawful taking of personal property for the
purpose of deriving utility, satisfaction, enjoyment and pleasure. 60
We agree with the contention of the respondents that intangible properties
such as electrical energy and gas are proper subjects of theft. The reason for
this is that, as explained by this Court in United States v. Carlos 61 and United
States v. Tambunting,62 based on decisions of the Supreme Court of Spain
and of the courts in England and the United States of America, gas or
electricity are capable of appropriation by another other than the owner. Gas
and electrical energy may be taken, carried away and appropriated. In
People v. Menagas,63 the Illinois State Supreme Court declared that
electricity, like gas, may be seen and felt. 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. 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. Electrical energy may, likewise, be taken and carried away. It
is a valuable commodity, bought and sold like other personal property. It
may be transported from place to place. There is nothing in the nature of
gas used for illuminating purposes which renders it incapable of being
feloniously taken and carried away.

In People ex rel Brush Electric Illuminating Co. v. Wemple, 64 the Court of

Appeals of New York held that electric energy is manufactured and sold in
determinate quantities at a fixed price, precisely as are coal, kerosene oil,
and gas. It may be conveyed to the premises of the consumer, stored in cells
of different capacity known as an accumulator; or it may be sent through a
wire, just as gas or oil may be transported either in a close tank or forced
through a pipe. Having reached the premises of the consumer, it may be
used in any way he may desire, being, like illuminating gas, capable of being
transformed either into heat, light, or power, at the option of the purchaser.
In Woods v. People,65 the Supreme Court of Illinois declared that 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.
Gas and electrical energy should not be equated with business or services
provided by business entrepreneurs to the public. Business does not have an
exact definition. Business is referred as that which occupies the time,
attention and labor of men for the purpose of livelihood or profit. It
embraces everything that which a person can be employed.66 Business may
also mean employment, occupation or profession. Business is also defined as
a commercial activity for gain benefit or advantage.67 Business, like services
in business, although are properties, are not proper subjects of theft under
the Revised Penal Code because the same cannot be "taken" or "occupied."
If it were otherwise, as claimed by the respondents, there would be no
juridical difference between the taking of the business of a person or the
services provided by him for gain, vis--vis, the taking of goods, wares or
merchandise, or equipment comprising his business. 68 If it was its intention
to include "business" as personal property under Article 308 of the Revised
Penal Code, the Philippine Legislature should have spoken in language that is
clear and definite: that business is personal property under Article 308 of the
Revised Penal Code.69
We agree with the contention of the petitioner that, as gleaned from the
material averments of the Amended Information, he is charged of "stealing
the international long distance calls belonging to PLDT" and the use thereof,
through the ISR. Contrary to the claims of the OSG and respondent PLDT,
the petitioner is not charged of stealing P20,370,651.95 from said
respondent. Said amount of P20,370,651.95 alleged in the Amended
Information is the aggregate amount of access, transmission or termination
charges which the PLDT expected from the international long distance calls
of the callers with the use of Baynet Super Orient Cards sold by Baynet Co.
Ltd.
In defining theft, under Article 308 of the Revised Penal Code, as the taking
of personal property without the consent of the owner thereof, the Philippine

legislature could not have contemplated the human voice which is converted
into electronic impulses or electrical current which are transmitted to the
party called through the PSTN of respondent PLDT and the ISR of Baynet
Card Ltd. within its coverage. When the Revised Penal Code was approved,
on December 8, 1930, international telephone calls and the transmission and
routing of electronic voice signals or impulses emanating from said calls,
through the PSTN, IPL and ISR, were still non-existent. Case law is that,
where a legislative history fails to evidence congressional awareness of the
scope of the statute claimed by the respondents, a narrow interpretation of
the law is more consistent with the usual approach to the construction of the
statute. Penal responsibility cannot be extended beyond the fair scope of the
statutory mandate.70
Respondent PLDT does not acquire possession, much less, ownership of the
voices of the telephone callers or of the electronic voice signals or current
emanating from said calls. The human voice and the electronic voice signals
or current caused thereby are intangible and not susceptible of possession,
occupation or appropriation by the respondent PLDT or even the petitioner,
for that matter. PLDT merely transmits the electronic voice signals through
its facilities and equipment. Baynet Card Ltd., through its operator, merely
intercepts, reroutes the calls and passes them to its toll center. Indeed, the
parties called receive the telephone calls from Japan.
In this modern age of technology, telecommunications systems have become
so tightly merged with computer systems that it is difficult to know where
one starts and the other finishes. The telephone set is highly computerized
and allows computers to communicate across long distances. 71 The
instrumentality at issue in this case is not merely a telephone but a
telephone inexplicably linked to a computerized communications system with
the use of Baynet Cards sold by the Baynet Card Ltd. The corporation uses
computers, modems and software, among others, for its ISR.72
The conduct complained of by respondent PLDT is reminiscent of "phreaking"
(a slang term for the action of making a telephone system to do something
that it normally should not allow by "making the phone company bend over
and grab its ankles"). A "phreaker" is one who engages in the act of
manipulating phones and illegally markets telephone services. 73 Unless the
phone company replaces all its hardware, phreaking would be impossible to
stop. The phone companies in North America were impelled to replace all
their hardware and adopted full digital switching system known as the
Common Channel Inter Office Signaling. Phreaking occurred only during the
1960s and 1970s, decades after the Revised Penal Code took effect.
The petitioner is not charged, under the Amended Information, for theft of
telecommunication or telephone services offered by PLDT. Even if he is, the
term "personal property" under Article 308 of the Revised Penal Code cannot
be interpreted beyond its seams so as to include "telecommunication or
telephone services" or computer services for that matter. The word "service"

has a variety of meanings dependent upon the context, or the sense in

which it is used; and, in some instances, it may include a sale. For instance,
the sale of food by restaurants is usually referred to as "service," although
an actual sale is involved.74 It may also mean the duty or labor to be
rendered by one person to another; performance of labor for the benefit of
another.75 In the case of PLDT, it is to render local and international
telecommunications services and such other services as authorized by the
CPCA issued by the NTC. Even at common law, neither time nor services
may be taken and occupied or appropriated.76A service is generally not
considered property and a theft of service would not, therefore, constitute
theft since there can be no caption or asportation.77 Neither is the
unauthorized use of the equipment and facilities of PLDT by the petitioner
theft under the aforequoted provision of the Revised Penal Code. 78
If it was the intent of the Philippine Legislature, in 1930, to include services
to be the subject of theft, it should have incorporated the same in Article
308 of the Revised Penal Code. The Legislature did not. In fact, the Revised
Penal Code does not even contain a definition of services.
If taking of telecommunication services or the business of a person, is to be
proscribed, it must be by special statute79 or an amendment of the Revised
Penal Code. Several states in the United States, such as New York, New
Jersey, California and Virginia, realized that their criminal statutes did not
contain any provisions penalizing the theft of services and passed laws
defining and penalizing theft of telephone and computer services. The
Pennsylvania Criminal Statute now penalizes theft of services, thus:
(a) Acquisition of services. -(1) A person is guilty of theft if he intentionally obtains services for himself
or for another which he knows are available only for compensation, by
deception or threat, by altering or tampering with the public utility meter or
measuring device by which such services are delivered or by causing or
permitting such altering or tampering, by making or maintaining any
unauthorized connection, whether physically, electrically or inductively, to a
distribution or transmission line, by attaching or maintaining the attachment
of any unauthorized device to any cable, wire or other component of an
electric, telephone or cable television system or to a television receiving set
connected to a cable television system, by making or maintaining any
unauthorized modification or alteration to any device installed by a cable
television system, or by false token or other trick or artifice to avoid
payment for the service.
In the State of Illinois in the United States of America, theft of labor or
services or use of property is penalized:
(a) A person commits theft when he obtains the temporary use of property,
labor or services of another which are available only for hire, by means of

threat or deception or knowing that such use is without the consent of the
person providing the property, labor or services.
In 1980, the drafters of the Model Penal Code in the United States of
America arrived at the conclusion that labor and services, including
professional services, have not been included within the traditional scope of
the term "property" in ordinary theft statutes. Hence, they decided to
incorporate in the Code Section 223.7, which defines and penalizes theft of
services, thus:
(1) A person is guilty of theft if he purposely obtains services which he
knows are available only for compensation, by deception or threat, or by
false token or other means to avoid payment for the service. "Services"
include labor, professional service, transportation, telephone or other public
service, accommodation in hotels, restaurants or elsewhere, admission to
exhibitions, use of vehicles or other movable property. Where compensation
for service is ordinarily paid immediately upon the rendering of such service,
as in the case of hotels and restaurants, refusal to pay or absconding
without payment or offer to pay gives rise to a presumption that the service
was obtained by deception as to intention to pay; (2) A person commits
theft if, having control over the disposition of services of others, to which he
is not entitled, he knowingly diverts such services to his own benefit or to
the benefit of another not entitled thereto.
Interestingly, after the State Supreme Court of Virginia promulgated its
decision in Lund v. Commonwealth,80declaring that neither time nor services
may be taken and carried away and are not proper subjects of larceny, the
General Assembly of Virginia enacted Code No. 18-2-98 which reads:
Computer time or services or data processing services or information or data
stored in connection therewith is hereby defined to be property which may
be the subject of larceny under 18.2-95 or 18.2-96, or embezzlement
under 18.2-111, or false pretenses under 18.2-178.
In the State of Alabama, Section 13A-8-10(a)(1) of the Penal Code of
Alabama of 1975 penalizes theft of services:
"A person commits the crime of theft of services if: (a) He intentionally
obtains services known by him to be available only for compensation by
deception, threat, false token or other means to avoid payment for the
services "
In the Philippines, Congress has not amended the Revised Penal Code to
include theft of services or theft of business as felonies. Instead, it approved
a law, Republic Act No. 8484, otherwise known as the Access Devices
Regulation Act of 1998, on February 11, 1998. Under the law, an access
device means any card, plate, code, account number, electronic serial
number, personal identification number and other telecommunication

services, equipment or instrumentalities-identifier or other means of account

access that can be used to obtain money, goods, services or any other thing
of value or to initiate a transfer of funds other than a transfer originated
solely by paper instrument. Among the prohibited acts enumerated in
Section 9 of the law are the acts of obtaining money or anything of value
through the use of an access device, with intent to defraud or intent to gain
and fleeing thereafter; and of effecting transactions with one or more access
devices issued to another person or persons to receive payment or any other
thing of value. Under Section 11 of the law, conspiracy to commit access
devices fraud is a crime. However, the petitioner is not charged of violation
of R.A. 8484.
Significantly, a prosecution under the law shall be without prejudice to any
liability for violation of any provisions of the Revised Penal Code inclusive of
theft under Rule 308 of the Revised Penal Code and estafa under Article 315
of the Revised Penal Code. Thus, if an individual steals a credit card and uses
the same to obtain services, he is liable of the following: theft of the credit
card under Article 308 of the Revised Penal Code; violation of Republic Act
No. 8484; and estafa under Article 315(2)(a) of the Revised Penal Code with
the service provider as the private complainant. The petitioner is not
charged of estafa before the RTC in the Amended Information.
Section 33 of Republic Act No. 8792, Electronic Commerce Act of 2000
provides:
Sec. 33. Penalties. The following Acts shall be penalized by fine and/or
imprisonment, as follows:
a) Hacking or cracking which refers to unauthorized access into or
interference in a computer system/server or information and communication
system; or any access in order to corrupt, alter, steal, or destroy using a
computer or other similar information and communication devices, without
the knowledge and consent of the owner of the computer or information and
communications system, including the introduction of computer viruses and
the like, resulting on the corruption, destruction, alteration, theft or loss of
electronic data messages or electronic documents shall be punished by a
minimum fine of One hundred thousand pesos (P100,000.00) and a
maximum commensurate to the damage incurred and a mandatory
imprisonment of six (6) months to three (3) years.
IN LIGHT OF ALL THE FOREGOING, the petition is GRANTED. The assailed
Orders of the Regional Trial Court and the Decision of the Court of Appeals
are REVERSED and SET ASIDE. The Regional Trial Court is directed to issue
an order granting the motion of the petitioner to quash the Amended
Information.
SO ORDERED.