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  the equivalent of 4,546 pesetas Philippine currency.   All  contrary to law.

(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. South worth,  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 witnesses 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. South worth,  prosecuting attorney for the city of Manila.

(Sgd.)    "CHARLES S. 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 demurred 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 thorough 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 of 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 outside meter  (Exhibit A) showed a consumption in defendant's building of 2,500 kilowatt hours of electricity, the 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 at 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  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 fcjut 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 defend that the boy's interest in the outcome of this case is less than that of the witnesses  for the prosecution.   It seems to us that his natural  desire to shield his father would far outweigh 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  often 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  meter  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 only corporeal property can be the  subject of the crime of  larceny,  and m 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 case of U. S. vs. Genato  (15  Phil. 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 Light  Company.  As a result  of the use of this "jumper" the meter,  instead of making one revolution in every four seconds, registered  one in seventy-seven seconds, thereby  reducing  the current approximately 95 per  cent. Genato was  charged in the municipal court with a violation of a certain ordinance of the city of Manila, and was sentenced  to pay a fine of P200.  He appealed to  the Court of First Instance, was again tried and sentenced to pay the same fine.   An appeal was taken from the judgment of the Court of First Instance to the Supreme Court on the ground that the ordinance in question was null and  void. It is true that the  only  question directly presented was that  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 cases of substraction 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 manifestations 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 or incorporeal, 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 I11., 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 Railroad  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 pn /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 it continued to furnish the current, thereby giving the defendant an  opportunity to continue the  misappropriation,  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 the  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 that the defendant take its property.  We have been unable to find  a well-considered case holding a 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 Joaquina Punu the sum of P31.50, with the request to deliver it  to Marcelina Dy-Oco.  The defendant called upon Marcelina, but instead of delivering the said amount she asked Marcelina for P30 in  the name  of Joaquina who  had in no way authorized her to do so.  Marcelina gave her P30, believing  that Joaquina had  sent for it.  Counsel for the defendant  insisted that the  complaint  charged his client with two  different crimes of estafa  in violation of section 11 of General Orders, No. 58.  In disposing of this question this court said:

"The said defect constitutes one of the dilatory  pleas indicated  by section 21,  and the accused ought to  have raised  the point before the  trial began.  Had this  been done, the complaint might have been amended in  time, because it is  merely  a defect of  form  easily remedied. *   *   *   Inasmuch as in the first instance the accused did not make the corresponding dilatory plea to the irregularity of the complaint, it  must be understood that she 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 the 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 verv much greater than that imposed by the court in this case.  The covering of the entire period by one charge lias 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 a 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 its 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 takings.  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 ?865.26.  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.

 

---

 

DISSENTING

 

MORELAND, J.,

I feel  myself compelled to dissent because, in my judgment, there is no evidence before this court, and there was none before the court below, establishing the  most essential element of the crime of larceny, namely, the taking without the consent of the  owner.  As I read the record, there is no  evidence showing that the electricity  alleged to have been stolen was taken without the consent of the complaining company.  The fact is that there was not  a witness who testified  for the  prosecution who  was  authorized in law, or who claimed to  be authorized in fact,  to testify as to whether  or not the alleged taking of the electricity was without the consent of the company or, even, that said company had not been paid for all electricity taken.   Not one of them was, as a matter of law, competent to testify 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 witnesses all  confined their testimony to technical descriptions of meters, their nature and function, of electric light wires, the wiring  of defendant's house, the placing of a meter therein, the  placing of a 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 the 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 riot 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 that 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.  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 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  but which are of themselves sufficient to warrant  the  inference.   The mere fact, if  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 pass through the meter.  Much less would it warrant the inference that, in  so using electricity, the defendant feloniously and criminally took, stole, and carried it away without the consent of the company.  An accused is presumed innocent  until  the 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  mfust exclude every reasonable hypothesis  of innocence.  If the facts  proved  are as  consistent with his 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 alJ these questions: We do not know.

In the case of Bubster vs. Nebraska (33 Neb., 663), the accused was charged with the larceny of a 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, Phillips  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 good faith.  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 for larceny, 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 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 its 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 larceny itself must be proved  by the best 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 other must be  sworn,  so that it may appear  that the  immediate possession was violated, and this, too, without the consent of the person holding it.   Where non-consent is an essential ingredient in  the offense, as it is here, direct  proof alone, from  the  person whose non-consent 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  unequivocal statement on the other side, which if untrue could be disproved by his testimony,  often furnishes strong evidence of the fact 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 the 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 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 of 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 Bolocboloc 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 sight 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 use 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 it was made were the letters which he wrote to Holt directing him to go to Gallatin, and  the daily and serail 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 faces 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,  hiss 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 the case of Frick vs. Barbour (64 Pa. St., 120, 121), the court said:

"It has been more than once said  that the 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  circumstantial evidence would justify the jury in assuming that his evidence, instead  of rebutting such inferences, would support them."

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

"The consciousness indicated by 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 circumstance, 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 the circumstance 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 both of the privilege  and the disqualification  (post, sees. 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 should naturally be answered in the  affirmative   *   *  *."  (See Aragon  Coffee Co. vs. Eogers, 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 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 organized 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 the 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 form  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 larceny, 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  larceny 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  larceny 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 today, that electricity is nothing  more or less  than energy. As Mr, Meadow croft 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 beasts, 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 appertain 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 larceny 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 larceny:

"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 contrectatio  of  the  Romans; 'Furturn  sine  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 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, taking the same or abstracting the same.   Hence the .legal maxims:  'Furtum non committitur in rebus immobilibus and Res incorporales  nee tradi possideri possunt, ita  contrectavit nee aufferri.' "  (6 Groizard, p. 266.)

Criticising an  opinion of  the  supreme  court  of  Spain which  held that illuminating gas was a subject of larceny, 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 tanks, 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 £he 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 be conveyed to a place  different from that for which it was originally intended.

"This exposition, or 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 and 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 Spanish 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 larceny?

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 we 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 larceny 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  intent of gain constitutes the crime of larceny 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 larceny must be a tangible chattel which has a separate independent existence of its  own apart from everything else, which has three dimensions and  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, surreptitiously 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 is exactly the same thing as it was before it received the electricity,  at the time it  had it, and after it was withdrawn  from  it.  The  difference between  a wire before and after the removal of the  electricity is simply a difference of condition.  Being charged with electricity it had a quality or condition which was capable of being transferred to some other body and, in the course of that transfer,  of doing work or performing service.  A body in an elevated position is in a condition different from a body at sea level or at the center of the earth.   It has the quality of being able to do something, to perform  some service by the mere change of location.   It has potential energy, measured by the amount of work  required to elevate 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 its1 highest elevation,  ready to  deliver a blow.  While this  owner  is absent  over night the owner of the other pile  driver, surreptitiously 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 larceny  as that crime is defined the world over?  Would the one who stole the battery after it had been elevated to the ceiling, or the weight of the pile driver after it had been elevated 50 feet in the air,  be guilty of a different offense than if he stole those chattels before such elevation?  Not at all.  The weight elevated had more value, in a sense, than one not elevated; and the quality of elevation is considered only in fixing value.  It has nothing whatever to do with the nature of the crime committed.  It is impossible to steal a quality or condition apart from the thing or chattel of which it is a quality or condition.  The 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 composite result of  all its properties, qualities, or conditions.   None  of the qualities which go to 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 benefited 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 steel belonging to another the quality of being hard, stiff and unyielding and transferred that quality to a willow wand belonging to himself?  Is he guilty of larceny who, with  intent to defraud and to  benefit himself  correspondingly, takes from a copper  wire  belonging to  another the quality  of being electrified  and transfers  that quality  to an electric light?   An electric current is either a tangible thing, a chattel of and by itself, with a perfect,  separate and independent existence, or else it is a mere quality, property or condition of  some tangible thing or chattel which does have such an existence.  The accepted theory today 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, it 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 a  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 horse.  It is the power potential in the arm  of  the 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 stripped 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.   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 spring.  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 has 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 anji 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 of theft?  Is it at the crank by which  the  laborer turns the machine?   Is it at the armature, the conductor, the  field  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 unstealable laborer's energy become stealable electrical energy?

An electriclight 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 the tons of coal which he handles, from the electric plant  or factory  to the house where the light is produced.  The wire simply  avoids  the  necessity of  the laborer being in the very house  where  he  produces  the light.  Instead of being there, he, by means of the so-called electric-light wire, is located at a distance, but produces the light in exactly the same way, transmitting his energy for that purpose.   The wire stands in exactly the same relation to the person in  whose house it is put as would  a laborer who had been sent to that house to render services.  The energy may be diverted from the purpose for  which it was intended, or a wrong account given of the amount of work performed by that energy; but it is impossible  to steal, take and carry that 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 dayB' 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 is 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 a 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 not 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  larceny  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 wueble while the other is not; one is produced by a  wholly different process  from the other and from wholly different materials, if we may call  materials those changes which result in the immaterial thing called an electric current; in the case of corn we deal not with  the quality or energy of corn, but with corn as a  composite and concrete result of all its qualities and  uses; we deal with a tangible thing,  a chattel, and  not with a  condition or quality of a  tangible thing; we  deal with things instead of ideas,  with  things which exist separate and independent and which  do not depend, as does electricity, wholly upon some body  not only for the capability of manifesting its existence, but also for very existence  itself;  because we deal with something which changes its form but never its nature as a physical entity. It is always a chattel, a tangible thing, a cosa mueble.

On the other hand, in the case of the electric current we deal not with  a thing, a  chattel, a cosa  mueble, but  with a condition or quality, a property of a cosa mueble; with an idea which always, before it has  any  significance or 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  with grains of corn which are  absolute entities, independent of and apart from everything else, and  not mere characteristics or qualities of  some entity  or body which does  exist as  an absolute physical entity in itself; with the rose 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 has already been said, the difficulty in the elucidation of the question comes from the confusion of  qualities with things,  of appearances with realities. Apparently an electric current does  things.  It produces phenomena.  It, therefore, appears to be something.  But it  must not be forgotten that many times appearances are deceitful.  They do  not always insure  realities.   It is not judicial to say that, because a thing looks  so, it is so.   It is not judicial to say that,  simply because it looks  as if one  committed larceny, therefore he is guilty  of  larceny.  Before we  may legally convict one of larceny,  we must know  exactly what he  did.  Justice  is  not founded on  guess work  nor on appearances.  Men's  rights are preserved by definitions, and definitions are founded on facts,  not fancies,  on realities, not appearances.  Because, when one taps an electrically charged wire belonging to another and,  by means of a contrivance, transfers the charge to his own  uses, it looks as if he was  stealing  something, is not sufficient to  convict him of larceny.   We must first know what larceny is, as well as what an electric current is, and what is meant by its use in producing light.  To know what larceny is we must know what legislators and Judges during the development of jurisprudence  have always said and  agreed it  is.   In other words,  we must know  its  definition.  It approaches tyranny to convict one of murder when he 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 today 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  kidnaping, 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 to 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 adported 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 larceny contained in the Penal Code,  be the subject of larceny, nevertheless the court dismisses that question substantially without discussion,  the only  reference thereto being the following:

"It 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 larceny seems to be not whether the subject is  corporeal or incorporeal, but whether it is capable of appropriation  by another than the owner.

*    *    *    *    *    *    *

"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."

This statement  fails to touch  the  essential  question involved and is  wholly  beside  the point for the following reasons, laying 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 larceny 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 defining1 larceny.  If the court intended to use the word  "appropriation" in the sense of "taking," then its  use was unnecessary and may be misleading.   If it did not so intend, then the rule of law laid down by the  court is not as I understand the law to be. An appropriation in addition to or different from  the taking is not an  essential  of larceny anywhere.   Wharton  says that "larceny 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  larceny "who  *  *   * take (toman)  (not  appropriate) another's  cosas muebles (movable chattels)  without the owner's consent."  Unless, therefore, the  word "appropriation" is used in  the same sense as "taking,"  the paragraph  in the court's decision above quoted  does not contain a correct statement of  the law.  If it means the same thing then the use of the word in no way enlightens the situation;  for it is just as difficult to determine whether a cosa mueble can be appropriated as it is to  determine whether  it can be taken.   The question before us is whether or not electricity is such a cosa mueble that it can be taken under  the law of larceny.   To  substitute in that problem the word "appropriation" for the word "taking" does not aid 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 denned larceny thus: "Any person who, with intent to gain, takes  from another his cake without  his consent  shall be  guilty of  larceny."  Let us  suppose that some one should then define the subject of larceny 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, larceny 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 subjects of larceny, being mere rights  of action, having no corporeal existence; *  *  *."

I have already  quoted  at length from  writers  on the

Spanish and  Roman law to show that only  tangible, corporeal chattels can be the subject of larceny.

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

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

"Art. 334. Son bienes inmuebles:

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

*        *       *       *       *       *      *

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. Keal property consists of:

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

*      *       *      *      *      *       *

"Art. 335. Se reputan bienes muebles los suaceptibles de apropiacion  no comprendidos en el capftulo anterior, y en general  todos los que se pueden transportar de un punto a otro sin menoscabo de la cosa inmueble a que estuvieren 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 article, two expressions are used in defining "bienes muebles," one  of elimination and the 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 end the  article further provided that appropriable property shall be,  "in general, all property which can be carried from one place to another." Under this restricting clause, then, property to be personal property must be not only property not included in article 334 but also property which can  be transported from one place to another. It must fulfill two requirements instead of one.  Besides, under  the Spanish law, real property is as  much subject to  appropriation  as personal property. The word in Spanish seems to be broader than its legal use in English.

From the foregoing it is plain  that property  to be personal property must not only be susceptible of appropriation, which the court in the quoted paragraph claims is the only requirement, but it must also be capable of being of itself manually  seized and transported from one place to another.
 
This presents the fourth reason why I say  that the proposition laid down by the court in the quoted paragraph is laid down under a complete misapprehension of  the definition of  una cosa mueble.

And finally, the word "appropriate" which the court has used is  found in subdivsion 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 thief; while "appropriation" means, rather, the making use or 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 seen 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 us assume,  for the sake of argument, that electricity is a tangible thing, like water, for instance.  Still the crime committed, if any, is not larceny.  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 advantage of B's conduit and water and enriches himself by reason thereof.  Did A commit the crime of 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 or one  hundred,  the  volume, the amperage,  of the current, that  is, the quantity of it, if we may use the term (and it must be remembered that I am assuming electricity to be a tangible thing and will  speak  accordingly) remains exactly the same.   The volume or quantity of the electricity is just  the same when it comes out of  the hundredth light as it was when it  entered the  first.  While there is a difference between the current as it comes from the last light and as it entered the first, it is simply one of condition, or state.   All of the electricity is still there. Like the water; it has simply lost its "head," its  energy. It has  been deprived of its pressure, of its electro-motive force; but  it is the same old electricity, in the same old quantity.  So that, when the accused in the case at bar, by means  of a "jumper," burned thirty lights, instead of the three for which he paid the company,  he Was not stealing electricity.  Exactly as much electricity went back into the company's wire after serving the twenty-seven lights for which he did not pay as came out of that wire in the first place.  The defendant took nothing;  he used something. In larceny there must be a taking.  Here there is only a use. Electricity is a utility, not a thing.  The company, in the case 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 "U Elettricita 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  resistence  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 courts 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 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 i  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  jurists, 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 substracted.   In connecting a second circuit one does not substract 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 resistence, 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 a  more or less  economic value;  pertain to the patrimony of the person who has produced them or brought them into being.  If a third person makes use of the trade-mark or trade-name, the scientific work or artistic production of another, nobody denies that he takes possession of a  utility that does not belong to him; that by the very illegal  act he derives profit,  and at the same time diminishes the patrimony of the person having legitimate rights herein.  But with all that, it has never occurred to anyone to bring an action for theft against  the  usurper of  the firm name,  the counterfeiter  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 substraction 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 inexact; the undulation is in itself,  it has its own  efficiency, but it is neither taken away nor substracted.  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 (arbitrio), not justice: nulla poena sine lege.

*    *    *    *    *    *    *

"So  in  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.

*    *    *    *    *    *    *

"*  *  *  penal  law must  be strictly  construed  (e  di interpretazione  restrittiva).   It  punishes  the contrectatio 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 traverses  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 argue  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 not be applied in his case.

*      *    *    *    *    *    *

"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 aqoustic 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 not 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 contrectatio and the ablatio.

"From the point of view of the law he is not.  He would be held to reimburse the  impresario for all damages, but he can not be called a thief, 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  it  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 notion 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 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 corporeality, 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 the 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 pf rules not made to fit  the circumstance.  In penal law  the principle nulla poena sine lege 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, became the company had just as much electricity after the illegal act as it had before.   In  other words, it has lost no electricity.  Having lost no electricity it can not charge anyone with stealing it.  If a thousand lights were burned, no more electricity would be consumed than  if one light were  burned, just as, no more  water is consumed in running a thousand  water wheels placed one below another than  in running one.  Just as much water flows over the  thousandth wheel  as flowed over the first. In the same manner there is just as much electricity flowing out of  the thousandth light  as flowed into  the  first. Just  as, in  using the water, nothing is  consumed but the head, the quantity of water remaining the same, so,  in using electricity,  nothing is consumed  but the  head (the pressure, the potential,  the electro-motive force),  the electricity itself remaining undiminished.   No electricity was taken.  It was used and then returned to its owner.

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

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

The Spanish Law of the Philippine Islands has not been changed  by any legislative enactment.  A cosa mueble is the  same now as it was in the days of the Partidas.  No legislature has changed the  law  of larceny as. it  came  from the jurisprudence of Rome and Spain.   Nor has any legislature touched the law of the  personal chattel to give it  a new definition or one which changes its ancient signification. Its present definition is the same as that given  by Sanchez Roman, Pacheco, Scaevola, Manresa, and Groizard as drawn from  the decrees of kings and acts  of  legislatures.   That definition having  been framed by the lawmaking power of Spain, from the idown 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 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 i 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 involve 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  i, 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  it 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 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 Ordinances 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 persons 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  who 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 by 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. 

*    *    *    *    *    *    *

"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 from 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 laws.  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 of 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 complainant.  This means that the  complainant 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, hich  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  inconceivable 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 party in a criminal prosecution may select not only the court 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.