12/16/2020 PHILIPPINE REPORTS ANNOTATED VOLUME 085

[No. L-1896. February 16, 1950.]

THE PEOPLE OF THE PHILIPPINES, plaintiff and appellee, vs.

RAFAEL BALMORES Y CAYA, defendant and appellant.

1. CRIMINAL LAW; FALSIFICATION OF SWEEPSTAKES

TICKET; EVIDENCE; JUDICIAL NOTICE.—The court cannot
take judicial notice of what is not of common knowledge as the
number of units of sweepstakes ticket.

2. ID.; ID.; SUBSTITUTION OF NUMBER IN INK.—The removal

of the true and real unidentified number of sweepstakes ticket and
substitution and writing in ink thereon of the number of a winning
ticket and the attempt to cash the ticket so altered as a prize-
winning number constitute the crime of falsification of government
obligation.

3. ID.; COURTS; JURISDICTION; ACCUSED'S ILLITERACY

AND WAIVER OF RIGHT OF COUNSEL; PLEA OF GUILTY.—
The fact that an accused is illiterate does not deprive the trial court
of jurisdiction to convict him on a plea of guilty although he is not
assisted by counsel, -when it appears that the accused has waived
such right.

APPEAL from a judgment of the Court of First Instance of Manila.

Peña, J.
The facts are stated in the opinion of the Court.
Felixberto B. Viray for appellant.
Assistant Solicitor General Ruperto Kapunan, Jr. and Solicitor
Adolfo Brillantes for appellee.

OZAETA, J.:

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:

494

494 PHILIPPINE REPORTS ANNOTATED

People vs. Balmores

central.com.ph/sfsreader/session/000001766b9c952b47e11f8e003600fb002c009e/t/?o=False 1/6
12/16/2020 PHILIPPINE REPORTS ANNOTATED VOLUME 085

"The undersigned accuses Rafael Balmores y Caya of attempted estafa

through 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 through
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 through 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 prisión mayor and not more than 12 years and 1
day of reclusión 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

495

VOL. 85, FEBRUARY 16, 1950 495

People vs. Balmores

Philippine Charity Sweepstakes ticket for the June 29, 1947, draw;
that this court has judicial notice that the Philippine Charity

central.com.ph/sfsreader/session/000001766b9c952b47e11f8e003600fb002c009e/t/?o=False 2/6
12/16/2020 PHILIPPINE REPORTS ANNOTATED VOLUME 085

Sweepstakes Office issued only four 14 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 ¼ 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.

496

496 PHILIPPINE REPORTS ANNOTATED

People vs. Balmores

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) When 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,
central.com.ph/sfsreader/session/000001766b9c952b47e11f8e003600fb002c009e/t/?o=False 3/6
12/16/2020 PHILIPPINE REPORTS ANNOTATED VOLUME 085

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 and
securities" is reclusión temporal in its minimum period and a fine
not to exceed P1 0,000, 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 through 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
prisión 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

497

VOL. 85, FEBRUARY 16, 1950 497

People vs. Balmores

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.

PARÁS, J., dissenting:

The accused-appellant, instead of being the victimizer, has become

the victim. He was accused of having f falsified a genuine 1/8 unit of

central.com.ph/sfsreader/session/000001766b9c952b47e11f8e003600fb002c009e/t/?o=False 4/6
12/16/2020 PHILIPPINE REPORTS ANNOTATED VOLUME 085

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 prizewinning
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 prisión mayor to 12 years and 1 day of
reclusión 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

498

498 PHILIPPINE REPORTS ANNOTATED

People vs. Uday

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. Not 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 matter of f act,
the f 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.
Judgment affirmed.

__________________
central.com.ph/sfsreader/session/000001766b9c952b47e11f8e003600fb002c009e/t/?o=False 5/6
12/16/2020 PHILIPPINE REPORTS ANNOTATED VOLUME 085

© Copyright 2020 Central Book Supply, Inc. All rights reserved.

central.com.ph/sfsreader/session/000001766b9c952b47e11f8e003600fb002c009e/t/?o=False 6/6