G.R. No. L-6589. January 29, 1954

The municipal board of canvassers counted 636 votes cast for Eligio
Caraecle and 612 for Felix del Castillo, rival candidate for the office
of mayor of the municipality of Malangas, Province of Zamboanga, in the
general elections held on 13 November 1951 and proclaimed the former
elected mayor of the municipality. In due time Felix del Castillo filed
his protest against the election of Eligio Caraecle, contesting of 39
ballots counted in favor of the latter. In an amended answer, Caraecle
filed a counter protest contesting 37 ballots cast in favor of
Castillo. After hearing, the Court of First Instance of Zamboanga
declared that 28 out of the 37 contested ballots were cast lawfully in
favor of Castillo and 16 out of 39 in favor of Caraecle. By adding 28
admitted for Castillo to 601 votes, the number of uncontested votes
counted in his favor, and 16 to 596, the number of uncontested votes
counted, in favor of Caraecle, the result is 629 votes for Castillo and
612 votes for Caraecle and the trial court declared the protestant
elected mayor of the municipality of Malangas. Both appealed from the
judgment assigning several errors. The Court of Appeals after reviewing
the judgment appealed from affirmed it, with the modification that the
plurality in favor of the protestant was 2 votes instead of 17. Both
have brought to this Court by certiorari the last judgment for review.

The first error assigned by Eligio Caraecle is that ballot marked
B-15 of precinct No. 1 should have been counted in his favor, because
according to the findings of the Court of Appeals the name written on
the line for mayor reads.

“Cebarle,” which sounds like “Caraecle.” but in the final
computation of votes the Court of Appeals counted it in favor of Felix
del Castillo. The latter states that this ballot has never been put in
issue, that it is a valid vote for him because the words “Mayor
Castillo’ appear on the first space for Senators and that Eligio
Caraecle has never claimed it to be his. This claim of Felix del
Castillo cannot be entertained because we have to accept the finding of
the Court of Appeals that the name “Cebarle” written on the space for
mayor has the same sound as “Caraecle.” This vote should, therefore, be
counted in favor of Caraecle. Besides, the words “Mayor Castillo”
written on the first space for Senators, not being the space for mayor
and there appearing another person voted for it the last name should
prevail.

The second error assigned by Eligio Caraecle relates to ballots B-16
of precinct No. 1; A-2 of precinct No. 1-A; and A-4 of precinct No. 7.
In ballot B-16 of precinct No. 1 the following words or names appear:
“Governor Adaza” on the fifth space for Senators; the word “Mayor” on
the third space for councilors; the name “F. del Castillo” on the
fourth space for councilors; and the name “L. Ubas” on the sixth space
for councilors. There being no person voted for mayor on the space
provided for it in the ballot, the word “Mayor” on the third space for
councilors and the name “F. del Castillo” on the fourth space for
councilors written by the voter sufficiently indicate his intention to
vote in favor of F. del Castillo for mayor of the municipality. This
vote must be counted in favor of Felix del Castillo as was counted by
the trial court and the Court of Appeals on appeal.

The case of Pimentel vs. Festejo,^[1]
46 Off. Gaz.; 2533, cited by Eligio Caraecle, is not applicable,
because there aside from the fact that the name of the candidate was
not written on the space for the office for which he was running, the
name of the candidates voted for was not preceded by the office for
which he was voted. The case of Kempis vs. Bautista,^[2] 46 Off. Gaz., Supp. No. 1, 229, has no application to the ballot under consideration.

As to ballot A-2 of precinct No. 1-A, the Court of Appeals upholds
the opinion of the trial court that it is a marked ballot, because the
names of the other candidates voted for are written in Roman characters
while that of Eligio Caraecle is in Arabic. There is no explanation or
reason for the voter to write in Arabic the name of candidate Eligio
Caraecle and to write in Roman characters the names of the other
candidates in their proper spaces, except that of identifying his
ballot. It cannot be deemed innocent. There is no sufficient reason for
altering the opinion of the courts below on this ballot. It should be
rejected.

As to ballot A-4 of precinct No. 7, the Court of Appeals is of the
opinion that the letters “MBDC” written on the third space for Senators
is obviously to mark it contrary to the trial court’s ruling. The
writing by the voter of these capital letters “MBDC” does not come
under the provisions of section 149, pars. 15 and 18, of the Revised
Election Code. The writing of the letters “MBDC” on the third space for
Senators is clearly for identification purposes and the ballot should
be rejected.

The ballots counted in favor of Eligio Caraecle and contested by
Felix del Castillo as marked are the following: Ballot A-1 of precinct
No. 2, where the name of “Mario Jumisal” is written on the last space
for councilors which is the signature of the voter as found in the
registry list; ballot A-2 of precinct No. 2 marked by the word
“Daguit,” meaning in English “to swoop,” and in Spanish “descender y
agarrar la presa al vuelo,” appearing on the last space for councilors;
ballot A-1 of precinct No. 4 where the words “wala na cag walo rine”
appear on the second space for councilors which in English mean “you
have lost 8 here” or “you do not have 8 here;” ballot A-6 of precinct
No. 4, where the words “Datu Bulac” appear on the first space for
councilors and mean in English “blind datu” or “Datu, the blind;”
ballot A-1 of precinct No. 7, where the words “Castillo wala mapatay”
appear on the sixth space for Senators and mean in English “Castillo
was not killed;” ballot A-2 of precinct No. 7, where the words “Datu
Bilat” appear on the first space for councilors, “bilat” meaning in
Visayan the genitals of a woman; and ballot A-3 of precinct No. 7,
where the words “And Carlos Virgo 17 Lt Inf” appear on the eighth space
for Senators, all of which were rejected by the trial court as marked
ballots. The Court of Appeals declared said seven votes valid for
Eligio Caraecle and in support thereof it invoked the rule laid down in
the case of Cailles vs. Gomez, 42 Phil., 496. But that rule (second
clause of par. k in the syllabus) has long been abandoned. In
subsequent cases,^[1] the rule is that the writing of impertinent expressions in the ballot invalidates it.

As to the taxing of the costs in the lower court the case of Tabanda
vs. Court of Appeals et al., 89 Phil., 76, is authority for the rule
that section 180 of the Revised Election Code has not deprived courts
of their discretion in the taxing of the costs. Therefore, Felix del
Castillo’s contention as to costs is not well taken.

The numbers of uncontested votes are 601 for the protestant and 596
for the protestee. Ballots cast for Caraecle contested by Castillo are
39 and those for Castillo contested by Caraecle are 37. The Court of
First Instance of Zamboanga held 28 votes valid in favor of Castillo
out of 37 contested ballots and 16 for Caraecle of the 39 contested by
Castillo, or a plurality of 17 for Castillo. After deducting ballot
B-15 of precinct No. 1 from the total number cast for Castillo the
protestant would have 628 votes; and deducting ballot A-4 of precinct
No. 7 as marked ballot from, and adding ballot B-15 of precinct No. 1
deducted from that of Castillo to, the total number cast for Caraecle,
the protestee would have 612 votes. There is a plurality of 16 votes in
favor of Felix del Castillo.

For the reasons stated in this opinion the judgment appealed from is affirmed, with costs against the protestee.

Pablo, Bengzon, Montemayor, Reyes, Jugo, Bautista Angelo, and Labrador, JJ., concur.

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^[1] 82 Phil., 545. ^[2] 81 Phil., 477.

^[1] Lucero vs. De Guzman, 45
Phil., 852; Fausto vs. Villapta, 53 Phil., 166; Villavert vs. Lim, 62
Phil., 178; Cecilio vs. Tomacruz, 62 Phil., 689, 710.