THE UNITED STATES, PLAINTIFF AND APPELLEE, VS. MANUEL TAMBUNTING, DEFENDANT AND APPELLANT.

STREET, J.:


This appeal was instituted for the purpose of
reversing a judgment of the Court of First Instance of the city of
Manila, finding the accused, Manuel Tambunting, guilty of stealing a
quantity of gas belonging to the Manila Gas Corporation, and sentencing
him to undergo imprisonment for two months and one day, of arresto mayor,
with the accessories prescribed by law; to indemnify the said
corporation in the sum of P2, with subsidiary imprisonment in case of
insolvency; and to pay the costs.

The evidence submitted in behalf of the prosecution
shows that in January of the year 1918, the accused and his wife became
occupants of the upper floor of the house situated at No. 443, Calle
Evangelista, in the city of Manila. In this house the Manila Gas
Corporation had previously installed apparatus for the delivery of gas
on both the upper and lower floors, consisting of the necessary piping
and a gas meter, which last mentioned apparatus was installed below.
When the occupants at whose request this installation had been made
vacated the premises, the gas company disconnected the gas pipe and
removed the meter, thus cutting off the supply of gas from said
premises.

Upon June 2, 1919, one of the inspectors of the gas
company visited the house in question and found thafr gas was being
used, without the knowledge and consent of the gas company, for cooking
in the quarters occupied by the defendant and his wife: to effect which
a short piece of iron pipe had been inserted in the gap where the gas
meter had formerly been placed, and piece of rubber tubing had been
used to connect the gas pipe in the kitchen with the gas stove, or
plate, used for cooking.

At the time this discovery was made, the accused,
Manuel Tambunting, was not at home, but he presently arrived and
admitted to the agent of the gas company that he had made the
connection with the rubber tubing between the gas pipe and the stove,
though he denied making the connection below. He also admitted that he
knew he was using gas without the knowledge of the company and that he
had been so using it for probably two or three months.

The clandestine use of gas by the accused in the
manner sta£ed is thus established in our opinion beyond a doubt; and
inasmuch as the animo lucrandi is obvious, it only remains to
consider, first, whether gas can be the subject of larceny and,
secondly, whether the quantity of gas appropriated in the two months,
during which the accused admitted having used the same, has been
established with sufficient certainty to enable the court to fix an
appropriate penalty.

Some legal minds, perhaps more academic than
practical, have entertained doubt upon the question whether gas can be
the subject of larceny; but no judicial decision has been called to our
attention wherein any respectable court has refused to treat it as
such. In U. S. vs. Genato (15 Phil., 170, 175), this court,
speaking through Mr. Justice Torres, said “* * * the right of the
ownership of electric current is secured by 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 of January 20, 1887, and April 1, 1897,
construing and enforcing the provisions of articles 530 and 531 of the
Penal Code of that country, articles identical with articles 517 and
518 of the code in force in these Islands.” These expressions were used
in a case which involved the substraction and appropriation of
electrical energy and the court held, in accordance with the analogy of
the case involving the theft of gas, that electrical energy could also
be the subject of theft. The same conclusion was reached in U. S. vs. Carlos (21 Phil., 553), which was also a case of prosecution for stealing electricity.

The precise point whether the taking of gas may
constitute larceny has never before, so far as the present writer
aware, been the subject of adjudication in this court, but the
decisions of Spanish, English, and American courts all answer the
question in the affirmative. (See U. S. vs. Carlos, 21 Phil., 553, 560.)

In this connection it will suffice to quote the following from the topic “Larceny,” at page 34, Vol. 17, of Ruling Case Law:

“There is nothing in the nature of
gas used for illuminating purposes which renders it incapable of being
feloniously taken and carried away. It is a valuable article of
merchandise, bought and sold like other personal property, susceptible
of being severed from a mass or larger quantity and of being
transported from place to place. Likewise water which is confined in
pipes and electricity which is conveyed by wires are subjects of
larceny.”

As to the amount and value of the gas appropriated
by the accused in the period during which he admits having used it, the
proof is not entirely satisfactory. Nevertheless we think the trial
court was, justified in fixing the value of the gas at P2 per month,
which is the minimum charge for gas made by the gas company, however
small the amount consumed. That is to say, no person desiring to use
gas at all for domestic purposes can purchase the commodity at a lower
rate per month than P2. There was evidence before the court showing
that the general average of the monthly bills paid by consumers
throughout the city for the use of gas in a kitchen equipped like that
used by the accused is from P18 to P20, while the average minimum is
about P8 per month. We think that the facts above stated are competent
evidence; and the conclusion is inevitable that the accused is at least
liable to the extent of the minimum charge of P2 per month. The market
value of the property at the time and place of the theft is of course
the proper value to be proven (17 R. C. L., p. 66) ; and when it is
found that the least amount that a consumer can take costs P2 per
month, this affords proof that the amount which the accused took was
certainly worth that much. Absolute certainty as to the full amount
taken is of course impossible, because no meter was used; but absolute
certainty upon this point is not necessary, when it is certain that the
minimum that could have been taken was worth a determinable amount.

It appears that before the present prosecution was instituted, the
accused had been unsuccessfully prosecuted for an infraction of section
504 of the Revised Ordinances of the city of Manila, under a complaint
charging that the accused, not being a registered installer of gas
equipment, had placed a gas installation in the house at No. 443, Calle
Evangelista. Upon this it is argued for the accused that, having been
acquitted of that charge, he is not now subject to prosecution for the
offense of theft, having been acquitted of the former charge. The
contention is evidently not well-founded, since the two offenses are of
totally distinct nature. Furthermore, a prosecution for violation of a
city ordinance is not ordinarily a bar to a subsequent prosecution for
the same offense under the general law of the land. (U. S. vs. Garcia Gavieres, 10 Phil., 694.)

The conclusion is. that the accused is properly
subject to punishment, under No. 5 of article 518 of the Penal Code,
for the gas taken in the course of two months at the rate of P2 per
month. There being no aggravating or attenuating circumstance to be
estimated, it results that the proper penalty is two months and one day
of arresto mayor, as fixed by the trial court. The judgment
will therefore be affirmed, with costs against the appellant, it being
understood that the amount of the indemnity which the accused shall pay
to the gas company is P4, instead of P2, with subsidiary imprisonment
for one day in case of insolvency. So ordered.

Mapa, C. J., Araullo, Malcolm, and Villamor, JJ., concur.