222 Ill. 293 | Ill. | 1906
delivered the opinion of .the court:
The first contention made by plaintiff in error is, that the offense made out against him by the evidence falls within the special statutory crime created by section 117 of the Criminal Code, (1 Starr & Cur. Stat.—2d ed.—par. 234, chap. 38, p. 1288,) and not under section 167 of the Criminal Code, which defines the crime of larceny, and that he should have been prosecuted for a violation of said section 117, and not for the crime of larceny. We do not agree with such contention. The law is well settled that gas used for illuminating and heating purposes may be the subject of larceny. (Commonwealth v. Shaw, 4 Allen, 308; State v. Wellman, 34 Minn. 221; Regina v. White, 6 Cox C. C. 213.) In the Shazv case it was said (p. 309) : “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 a pipe 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 an intent to deprive the company of their property and to appropriate it to her own use, clearly constituted the crime of larceny.”
Section 117 of the statute above referred to does not undertake to punish a person who unlawfully abstracts gas from the pipes of a gas company, but that section of the statute was passed with a view- to protect gas, water or electric meters from being tampered with or false connections being made with gas or water pipes or electrical conductors, so that gas, water or electricity might be consumed or utilized without passing through or being registered by a meter. The crime of larceny and the crime created by that section of the statute are therefore entirely separate and distinct offenses, and the doctrine announced in Stoker v. People, 114 Ill. 320, and kindred cases, relied upon by plaintiff in error, has no application to the case at bar. The plaintiff in error might have been guilty of a violation of said section 117 without obtaining any gas from said light and coke company. The two offenses are not the same, and the evidence which would support a conviction for a violation of said section 117 of the statute would not necessarily even tend to show the plaintiff in error guilty of larceny. The trial court did not, therefore, err in holding that the plaintiff in error was not entitled to his discharge on the ground that he was being prosecuted for the wrong offense.
It is next contended that, conceding the plaintiff in error was guilty of larceny, the evidence does not show him to be guilty of grand larceny, as it is said there is no evidence in the record that the value of the gas converted by him to his own use at any one time exceeded in value the sum of $15. The correctness of this contention depends upon whether the evidence shows the plaintiff in error to have been guilty of a continuing offense. If the gas abstracted on each day is a single and complete offense then the contention of the plaintiff in error would be correct, as the evidence failed to show that more than $15 worth of gas was consumed at 3947 Michigan avenue during any one day while the plaintiff in error was in possession of said premises. On the contrary, however, if it be the law that all the gas which was consumed by the plaintiff in error during any one period while the service pipes of said light and coke company were connected with the burners in said building by said rubber hose or the concealed pipes should be treated as one continuous taking, then clearly the evidence shows the plaintiff in error to have-been guilty of grand larceny. In Bishop on Criminal Law (vol. 2,—7th ed.—p. 799,) it is said: “Illuminating gas may be the subject of larceny; and the asportation is sufficient where the prisoner, receiving gas of a gas company, diverts some of it to his burners without its passing the meter to be measured, the means employed being to use a pipe running directly from the entrance to the exit pipe. While the pipe remains thus connected there is held to be one continuous taking.”
The above statement of the law is based mainly upon Regina v. Firth, L. R. 1 C. C. 172, which was an indictment for larceny for abstracting gas from a gas main by means of a pipe which drew off the gas from the main without allowing it to pass through the meter. The prisoner had for several years supplied a portion of his manufactory with gas which was thus abstracted, and it appeared the gas obtained was burned during the day at a large number of burners and was turned off at night. It was ruled there was but one taking and therefore but one offense. In support of that conclusion the learned judge who delivered the opinion referred to Regina v. Bleasdale, 2 Carr. & Kir. 765, as a clear authority on the point, in which case the prisoner was indicted for stealing coal from the mines of a number of different land owners. The taking of the coal had continued for a number of years and all the coal was taken through one shaft, and it was objected that there were a number of different takings and that the charge should be restricted to one special act. Erie, J., held that the taking was one continuous act. Also Regina v. Sheperd, 1 C. C. Res. 117, was referred to, where the question was whether damage done by the prisoner to a number of trees should be considered as one single act. The question was left to the jury, who found the act was continuous. The prisoner was convicted and the conviction was affirmed. The writer of the opinion further illustrated his view that the taking was a continuous one, by the following illustrations: He said: “Take the case of a granary at a railway station, and a man bringing two wagons close to the granary and taking sacks from time to time, and extending this taking over four or five days. Here there would be different takings at different times, but it would be impossible to treat the taking otherwise than as one continuous act. Another case might be suggested of a man at work in a house, stealing, on different days, out of different rooms, and taking one article out of one room and another out of another at intervals of a quarter of an hour or an hour, or longer, all during the same job of work. I should rather suppose that this would be one continuous act and might be included in one indictment.”
The trial court in this case instructed the jury “that if they believe, from the evidence, beyond a reasonable doubt, that the defendants, or either of them, are guilty of stealing gas as charged, and that they, or either of them, had been stealing gas for any number of days continuously prior to the 14th day of December, 1904, in fixing the value of the property stolen you may add together the various values of the amounts of gas stolen from day to day during the time preceding the discovery of the false connections, if any, on the 14th day of December, that such takings from day to day were continued. That is, you may judge, from all the surrounding facts and circumstances as shown by the evidence, how long the said gas, if any, had been unlawfully taken through said false connections prior to the 14th day of December continuously, and you may add together the total sum of the various amounts taken on the different days continuously before the said 14th day of December.”
This instruction left the question of whether the taking was continuous, and from day to day, to the jury, and authorized them, in fixing the value of the stolen property, in case they found the taking was continuous and from clay to day, to add together the various amounts taken on the different days continuously before the 14th day of December, under which instruction the jury found the plaintiff in error had continuously taken gas to an amount in value in excess of $15. We are'of the opinion the findings of the jury were amply supported by the evidence, and that they were not misdirected as to the law by the court.
It is finally contended that the court erred in directing the jury that in fixing the value of the gas stolen, if any, they should be guided by the selling price of the gas in question to consumers in the district in which the gas was abstracted, and not by the cost value of the material from which the gas was made. We are of the opinion the court did not err in so instructing the jury. The ordinary test of the value of property is the price it will command in the market if offered for sale, which in this case was the selling price of gas to conjsumers in the vicinity where the plaintiff in error wron’g;j fully converted the gas of the light and coke company to his ¡own use.
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Finding no reversible error in this record, the judgment of the criminal court of Cook county will be affirmed.
Judgment affirmed.
