THE PEOPLE OF THE PHILIPPINES, PLAINTIFF AND APPELLEE, VS. RAFAEL BALMORES Y CAYA, DEFENDANT AND APPELLANT.

Appellant, waiving the right to be
assisted by counsel, pleaded guilty to the following information filed against
him in the Court of First Instance of Manila:

“The undersigned accuses Rafael Balmores y Caya of attempted estafa thru
falsification of a security, committed as follows:

“That on or about the
22nd day of September, 1947, in the City of Manila, Philippines, the said
accused did then and there wilfully, unlawfully and feloniously commence the
commission of the crime of estafa thru falsification of a security directly by
overt acts, to wit: by then and there tearing off at the bottom in a cross-wise
direction a portion of a genuine 1/8 unit Philippine Charity Sweepstakes ticket
thereby removing the true and real unidentified number of same and substituting
and writing in ink at the bottom on the left side of said ticket the figure or
number 074000 thus making the said ticket bear the said number 074000, which is
a prize-winning number in the Philippine Charity Sweepstakes draw last June 29,
1947, and presenting the said ticket so falsified on said date, September 22,
1947, in the Philippine Charity Sweepstakes Office for the purpose of exchanging
the same for the corresponding cash that said number had won, fraudulently
pretending in said Office that the said 1/8 unit of a Philippine Charity
Sweepstakes ticket is genuine and that he is entitled to the corresponding
amount of P359.55 so won by said ticket in the Philippine Charity Sweepstakes
draw on said date, June 29, 1947, but the said accused failed to perform all the
acts of execution which would have produced the crime of estafa thru
falsification of a security as a consequence by reason of some causes other than
his spontaneous desistance, to wit: one Bayani Miller, an employee to whom the
said accused presented said ticket in the Philippine Charity Sweepstakes Office
discovered that the said ticket as presented by the said accused was falsified
and immediately thereafter he called for a policeman who apprehended and
arrested the said accused right then and there.

	“Contrary to law.
		(Sgd.) “LORENZO RELOVA
			“Assistant City Fiscal”

and was sentenced by Judge Emilio Peña to suffer not less than 10 years and 1
day of prision mayor and not more than 12 years and 1 day of
reclusion temporal, and to pay a fine of P100 and the
costs.

From that sentence he appealed to this court, contending (1) that
the facts charged in the information did not constitute an offense and (2) that
the trial court lacked jurisdiction to convict him on a plea of guilty because,
being illiterate, he was not assisted by counsel.

In support of the first
contention, counsel for the appellant argues that there could be no genuine 1/8
unit Philippine Charity Sweepstakes ticket for the June 29, 1947, draw; that
this court has judicial notice that the Philippine Charity Sweepstakes Office
issued only four 1/4 units for each ticket for the said draw of June 29, 1947;
that the information does not show that the true and real unidentified number of
the ticket alleged to have been torn was not and could not be 074000; that the
substitution and writing in ink of the said number 074000 was not falsification
where the true and real number of the ticket so torn was 074000.

This
contention is based on assumptions not borne out by the record. The ticket
alleged to have been falsified is before us and it appears to be a 1/8 unit. We
cannot take judicial notice of what is not of common knowledge. If relevant, it
should have been proved. But if it is true that the Philippine Charity
Sweepstakes Office did not issue 1/8 but only 1/4 units of tickets for the June
29, 1947, draw, that would only strengthen the theory of the prosecution that
the 1/8 unit of a ticket which appellant presented to the Philippine Charity
Sweepstakes Office was spurious. The assumption that the true and real
unidentified number of the ticket alleged to have been torn was the winning
number 074000, is likewise not supported by the record. The information to which
appellant pleaded guilty alleged that the appellant removed the true and real
unidentified number of the ticket and substituted and wrote in ink at
the bottom on the left side of said ticket the figure or number 074000. It is
obvious that there would have been no need of removal and substitution
if the original number on the ticket was the same as that which appellant wrote
in ink in lieu thereof.

The second contention appears to be based on a
correct premise but wrong conclusion. The fact that appellant was illiterate did
not deprive the trial court of jurisdiction to convict him on a plea of guilty
although he was not assisted by counsel. The decision expressly states that
appellant waived the right to be assisted by counsel, and we know of no law
against such waiver.

It may be that appellant was either reckless.or
foolish in believing that a falsification as patent as that which he admitted to
have perpetrated would succeed; but the recklessness and clumsiness of the
falsification did not make the crime impossible within the purview of paragraph
2, article 4, in relation to article 59, of the Revised Penal Code. Examples of
an impossible crime, which formerly was not punishable but is now so under
article 59 of the Revised Penal Code, are the following: (1) Mien one tries to
kill another by putting in his soup a substance which he believes to be arsenic
when in fact it is common salt; and (2) when one tries to murder a corpse.
(Guevara, Commentaries on the Revised Penal Code, 4th ed., page 15; decision,
Supreme Court of Spain, November 26, 1879; 21 Jur. Crim. 343.) Judging from the
appearance of the falsified ticket in question, we are not prepared to say that
it would have been impossible for the appellant to consummate the crime of
estafa thru falsification of said ticket if the clerk to whom it was presented
for payment had not exercised due care.

The penalty imposed by article
166 for the forging or falsification of “treasury or bank notes or certificates
or other obligations arid securities” is reclusion temporal in
its minimum period and a fine not to exceed P10,000, if the document which has
been falsified, counterfeited, or altered is an obligation or security of the
United States or of the Philippine Islands. This being a complex crime of
attempted estafa thru falsification of an obligation or security of the
Philippines, the penalty should be imposed in its maximum period in accordance
with article 48. Taking into consideration the mitigating circumstance of lack
of instruction, and applying the Indeterminate Sentence Law, the minimum cannot
be lower than prision mayor in its maximum period, which is 10 years
and 1 day to 12 years. It results, therefore, that the penalty imposed by the
trial court is correct.

The alteration, or even destruction, of a losing
sweepstakes ticket could cause no harm to anyone and would not constitute a
crime were it not for the attempt to cash the ticket so altered as a
prize-winning number. So in the ultimate analysis appellant’s real offense was
the attempt to commit estafa (punishable with eleven days of arresto
menor); but technically and legally he has to suffer for the serious crime
of falsification of a government obligation. We realize that the penalty is too
severe, considering all the circumstances of the case, but we have no discretion
to impose a lower penalty than that authorized by law. The exercise of clemency
is vested by the Constitution in the Chief Executive and not in this
court.

We are constrained to affirm the sentence appealed from, with
costs against the appellant

Moran, C. J., Pablo, Bengzon, Padilla, Tuason, Montemayor, Reyes,
and Torres, JJ., concur.

---

PARAS, J.: dissenting:

The accused-appellant, instead of being the victimizer, has become the
victim. He was accused of having falsified a genuine 1/8 unit of the Philippine
Charity Sweepstakes ticket for the June, 1947, draw by tearing off at its bottom
in a cross-wise direction a portion, thereby removing the true and unidentified
number of said ticket and substituting and writing in ink at the bottom on the
left side the number 074000, thus making said ticket bear a prize-winning
number. He was convicted of attempted estafa thru falsification of an obligation
or security and sentenced to an indeterminate penalty of from 10 years and 1 day
of prision mayor to 12 years and 1 day of reclusion temporal,
and to pay a fine of P100 plus the costs. He waived the right to be assisted by
counsel and merely pleaded guilty to the information.

The appellant is
admittedly an illiterate and, in my opinion, had committed only an impossible
crime now punishable under paragraph 2, article 4, in relation to article 59, of
the Revised Penal Code. I say impossible, because in the way the alleged
falsification was done, it was inherently inadequate or ineffective and
accordingly certain to be detected. Stated otherwise, the appellant could not
have succeeded in cashing the ticket. For who would cash a ticket which, in the
first place, has a missing portion and, in the second place, contains a number
written in ink. Hot even boy-agents who conduct their trades on street
sidewalks, and much less the employee of the Sweepstakes Office to whom it was
presented. As a natter of fact, the falsification was readily detected by said
employee. The crime is just as impossible as passing a counterfeit paper bill
concocted in regular newsprint and in ordinary handwriting.

A doubt also
arises from the fact that the ticket is a 1/8 unit, in the face of the
contention of attorney for appellant in this instance that the tickets for the
June, 1947, Sweepstakes draw consisted of only four units. Of course, this may
not be a matter of judicial notice, but the point remains that if appellant was
assisted by competent counsel in the trial court, the fact might have been duly
proven. It is true that the appellant waived his right to be assisted by
counsel, but we cannot help pointing out that a miscarriage of justice may
sometimes result by force of circumstances. In such cases, any capital doubt
should be resolved in favor of the accused.

My vote, therefore, is to
reverse the appealed judgment and to release the appellant immediately as he has
been in prison since November 11, 1947.