G.R. No. 16513, U.S. v. Tambunting, 41 Phil. 364

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

DECISION

January 18, 1921

G.R. No. 16513THE UNITED STATES, plaintiff-appellee,vs.MANUEL TAMBUNTING, defendant-appellant.

Manuel Garcia Goyena for appellant. Acting Attorney-General Feria for appellee.

STREET, J.:

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

The evidence submitted in behalf of the prosecution shows that in January of the year 1918, the accused and his wife became occupants of the upper floor of the house situated at No. 443, Calle Evangelista, in the city of Manila. In this house the Manila Gas Corporation had previously installed apparatus for the delivery of gas on both the

upper and lower floors, consisting of the necessary piping and a gas meter, which last mentioned apparatus was installed below. When the occupants at whose request this installation had been made vacated the premises, the gas company disconnected the gas pipe and removed the meter, thus cutting off the supply of gas from said premises.

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

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

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

Some legal minds, perhaps more academic than practical, have entertained doubt upon the question whether gas can be the subject of larceny; but no judicial decision has been called to our attention

wherein any respectable court has refused to treat it as such. In U.S. vs. Genato (15 Phil., 170, 175), this court, speaking through Mr. Justice Torres, said ". . . the right of the ownership of electric current is secured by article 517 and 518 of the Penal Code; the application of these articles in cases of subtraction of gas, a fluid used for lighting, and in some respects resembling electricity, is confirmed by the rule laid down in the decisions of the supreme court of Spain of January 20, 1887, and April 1, 1897, construing and enforcing the provisions of articles 530 and 531 of the Penal Code of that country, articles identical with articles 517 and 518 of the code in force in these Islands." These expressions were used in a case which involved the subtraction and appropriation of electrical energy and the court held, in accordance with the analogy of the case involving the theft of gas, that electrical energy could also be the subject of theft. The same conclusion was reached in U.S. vs. Carlos (21 Phil., 553), which was also a case of prosecution for stealing electricity.

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

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

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

As to the amount and value of the gas appropriated by the accused in the period during which he admits having used it, the proof is not

entirely satisfactory. Nevertheless we think the trial court was justified in fixing the value of the gas at P2 per month, which is the minimum charge for gas made by the gas company, however small the amount consumed. That is to say, no person desiring to use gas at all for domestic purposes can purchase the commodity at a lower rate per month than P2. There was evidence before the court showing that the general average of the monthly bills paid by consumers throughout the city for the use of gas in a kitchen equipped like that used by the accused is from P18 to 20, while the average minimum is about P8 per month. We think that the facts above stated are competent evidence; and the conclusion is inevitable that the accused is at least liable to the extent of the minimum charge of P2 per month. The market value of the property at the time and place of the theft is of court the proper value to be proven (17 R.C.L., p. 66); and when it is found that the least amount that a consumer can take costs P2 per months, this affords proof that the amount which the accused took was certainly worth that much. Absolute certainty as to the full amount taken is of course impossible, because no meter wad used; but absolute certainty upon this point is not necessary, when it is certain that the minimum that could have been taken was worth a determinable amount.

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

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

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

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

Facts: 

This case is about the realty tax on machinery and equipment installed by Caltex (Philippines) Inc. in its gas stations located on leased land. The machines and equipment consists of underground tanks, elevated tank, elevated water tanks, water tanks, gasoline pumps, computing pumps, water pumps, car washer, car hoists, truck hoists, air compressors and tireflators. The city assessor of Pasay City characterized the said items of gas station equipment and machinery as taxable realty. The realty tax on said equipment

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

Issue: 

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

Held: 

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

DAVAO SAW MILL vs. APRONIANO G. CASTILLO and

DAVAO LIGHT & POWER CO., INC. G.R. No. L-40411 August 7,

1935

Facts:

Davao Saw Mill Co., Inc., is the holder of a lumber concession from

the Government of the Philippine Islands. However, the land upon

which the business was conducted belonged to another person. On

the land the sawmill company erected a building which housed the

machinery used by it. Some of the implements thus used were clearly

personal property, the conflict concerning machines which were

placed and mounted on foundations of cement. In the contract of

lease between the sawmill company and the owner of the land there

appeared the following provision: That on the expiration of the

period agreed upon, all the improvements and buildings introduced

and erected by the party of the second part shall pass to the exclusive

ownership of the lessor without any obligation on its part to pay any

amount for said improvements and buildings; which do not include

the machineries and accessories in the improvements.

In another action wherein the Davao Light & Power Co., Inc., was

the plaintiff and the Davao, Saw, Mill Co., Inc., was the defendant, a

judgment was rendered in favor of the plaintiff in that action against

the defendant; a writ of execution issued thereon, and the properties

now in question were levied upon as personalty by the sheriff. No

third party claim was filed for such properties at the time of the sales

thereof as is borne out by the record made by the plaintiff herein

It must be noted also that on number of occasion, Davao Sawmill

treated the machinery as personal property by executing chattel

mortgages in favor of third persons. One of such is the appellee by

assignment from the original mortgages.

The lower court rendered decision in favor of the defendants herein.

Hence, this instant appeal.

Issue: 

whether or not the machineries and equipments were personal in

nature.

Ruling/ Rationale:

Yes. The Supreme Court affirmed the decision of the lower court.

Machinery which is movable in its nature only becomes immobilized when placed in a plant by the owner of the property or plant, but not when so placed by a tenant, a usufructuary, or any person having

only a temporary right, unless such person acted as the agent of the owner.

TUMALAD vs. VICENCIO, G.R. No. L-30173, September 30, 1971 TUMALAD V. VICENCIO41 SCRA 143

FACTS:

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

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

ISSUE:

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

HELD:

Certain deviations have been allowed from the general doctrine that buildings are immovable property such as when through stipulation,

parties may agree to treat as personal property those by their nature would be real property. This is partly based on the principle of estoppel wherein the principle is predicated on statements by the owner declaring his house as chattel, a conduct that may conceivably stop him from subsequently claiming otherwise.

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

PHILIPPINE REFINING COMPANY V. JARQUE

FACTS:

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

The first two mortgages did not have an affidavit of good faith. A fourth mortgage was executed by Jarque and Ramon Aboitiz over motorship Zaragoza and was entered in the Chattel Mortgage

Registry on May 12, 1932, within the period of 30 days prior to the foreclosure/institution of the insolvency proceedings.

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

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

ISSUE:

1. Whether or not the mortgages of the vessels are governed by the Chattel Mortgage Law

2. Whether or not an affidavit of good faith is needed to enforce achattel mortgage on a vessel

RULING:

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

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