So you’ve been caught stealing from The Electric Company.¹  Your trial and conviction were otherwise unremarkable, and you’re short on good issues for appeal. Might as well try this:

The defendant lastly contends that the electricity and the gas sold by NSTAR do not constitute “property”…

Commonwealth v. Catalano, No. 08-P-1340 (July 1, 2009)

This is, of course, yet another appellate argument that sounds totally crazy when you say it out loud. Sure, the appellant is saying, maybe the electric company generates, manages, and distributes electricity, but that doesn’t mean that they own it! As The Rascals once never sang: All the world over, so easy to see… Currents of electrically charged particles passing by means of conductors from one body to another just got to be free!

Although perhaps morally questionable, this position is actually legally defensible. On first read, the definition of “property” outlined in the larceny statute really doesn’t seem to include electricity, or anything that resembles electricity.² While it is otherwise remarkably thorough—e.g., ”data while in transit,” “a beast or a bird which is ordinarily kept in confinement”—the statute makes no mention of household utilities as property subject to larceny.

Of course, the court also doesn’t want to be responsible for converting the Commonwealth’s entire electric grid into some kind of wacky Napster-style free-for-all. So, soldering iron in hand, the panel expertly grafts public utilities into the larceny statute’s “personal chattel” provision.

“Chattel” is, of course, one of the grande ensemble of Frenchified lawyerin’ words which came to dominate English common law after the  Norman Conquest. It’s really just a fancy way to say “movable property,” and is best defined as pretty much anything that could logically complete the phrase: “Hey, that guy just stole my _________!” As the Appeals Court is quick to note, gas has been viewed as a chattel subject to larceny in the Commonwealth since at least 1853. But no one had ever bothered to ask about electricity before now.

Bereft of any relevant Massachusetts caselaw, the court reluctantly resorts to actual science. After (presumably) dispatching a law clerk for a field trip to the Museum of Science’s Van de Graaf generator exhibit, the Court reports back that:

…electricity, like gas, also may be stored and conveyed. Storage is possible in a capacitor, and may be transmitted through wires.

Well, that and the U.S. Supreme Court already found that there is a property interest in electricity 70 years ago, as have several other states. So while this “would have been a novel question one hundred years ago,” and “the defendant is correct that this precise issue has never been addressed in Massachusetts”:

…it is a well-established legal principle that electricity and gas are personal property that may be the subject of larceny.

1. Better them than 3-2-1 Contact, which no doubt would unleash the unchecked extralegal vigilantism of  The Bloodhound Gang. [↩]
2. ”The term “property”, as used in the section, shall include money, personal chattels, a bank note, bond, promissory note, bill of exchange or other bill, order or certificate, a book of accounts for or concerning money or goods due or to become due or to be delivered, a deed or writing containing a conveyance of land, any valuable contract in force, a receipt, release or defeasance, a writ, process, certificate of title or duplicate certificate issued under chapter one hundred and eighty-five, a public record, anything which is of the realty or is annexed thereto, a security deposit received pursuant to section fifteen B of chapter one hundred and eighty-six, electronically processed or stored data, either tangible or intangible, data while in transit, telecommunications services, and any domesticated animal, including dogs, or a beast or bird which is ordinarily kept in confinement.” G.L. c. 266, § 30(2 [↩]

Matt Cameron