G.R. No. L-7704. December 14, 1954

This is a petition for review of a decision of the Court of Appeals
declaring respondent duly elected mayor of Tanay, Rizal, with a total
of 1,413 votes, as against a total of 1,410 votes for petitioner, or
majority of 3 votes.

Rafael B. Hilao and Teodulo Q. Bernados were registered candidates’
for the office of mayor of Tanay, Rizal, in the general elections held
on November 13, 1951. After canvassing the votes, the municipal board
of canvassers found that Hilao received a total of 1,420 votes as
against 1,416 votes of Bernados and proclaimed Hilao elected by a
majority of 4 votes.

Bernados filed an election protest before the Court of First
Instance of Rizal contesting the results in Precincts 1, 4, 5, and 10;
to which Hilao filed a counter-protest contesting the results in
Precincts 2, 4, 5, 7, and 15.

After trial, the court rendered its decision on January 5, 1953
dismissing the protest and declaring Hilao elected by a majority of 2
votes, but, upon being shown that a mistake was committed in Precinct No. 6 in the computation of the number of votes adjudicated to Hilao,
the court modified the decision declaring Hilao elected by a majority
of 12 votes. Taken to the Court of Appeals by virtue of the appeal
interposed by Bernados, the latter, in a. decision rendered on March
23, 1954, reversed the decision of the lower court declaring Bernados
elected by a majority of 3 votes. Hilao interposed the present petition
for review.

As stated by counsel for petitioner, the only question which is
presented to this Court for determination hinges on the appreciation of
the ballots in the protested and counter-protested precincts. This
means that the findings of fact of the Court of Appeals with regard to
the evidence aliunde submitted by both parties are no longer open for
review, the function of this Court being limited to determining if the
appreciation made of said ballots by the Court of Appeals, apart from
the evidence alluded, was made in accordance with law and the rulings
of this Court.

Petitioner contends that the Court of Appeals, in wiping out the
majority of 12 votes given to him by the court of origin and in
declaring respondent elected by a majority of 3 votes, acted not only
contrary to law but in disregard of the decisions of this Court, and in
this instance he disputes its findings on the following ballots;
Exhibits TB-37, TB-135, TB-31, TB-40, TB-18, RH-25, RH-342, RH-344,
RH-32, RH-257, RH-192, RH-256, RH-185, TB-41, RH-29, RH-167, and RH-341.

On the other hand, respondent contends that the Court of Appeals
erred in not considering in his favor ballot s ‘TB-19, TB-20, TB-21,
TB-22, and TB-23, and he makes this assignment of error to offset that
made by petitioner and bolster up his contention that the decision
appealed from should be “maintained.

We will now proceed to analyze the disputed ballots one by one to see if the errors pointed out are well taken.

BALLOTS CONTESTED BY PETITIONER

Pallet TB-37. This ballot, was rejected by the Court of Appeals as a
marked ballot because the candidates for councilors were voted for in.
the spaces for senators and the candidates for senators were voted for
in the spaces for councilors, and the only reason advanced for its
rejection is that the voter appears to be intelligent and could not
have innocently committed the mistake of writing in wrong places the
names of the candidates and, therefore, this interchange of names must
have been deliberately resorted to for the only purpose of identifying
his ballot. We believe this finding to be an error, for, under
paragraph 13 of Section 149 of the Revised Election Code, sail votes
can only be considered as stray votes and as which they do not
invalidate the whole ballot. Such interchange of voles shall be
considered innocent unless it should clearly appear that the intention
of the writer is to mark the ballot. Such is not the case. This ballot
should, therefore, be counted for Hilao.

Ballot TB-135. This was rejected as’ a marked ballot because the
voter wrote the name of Bernados on the last space for senators, he
being a candidate for mayor. This is the only ground for its rejection.
This is also an error. Following the same ruling we have stated above,
this vote can only be considered as stray vote which does not
invalidate the whole ballot. This ballot should be counted for Hilao.

Ballot TB-31. This ballot was objected to by Bernados the ground
that it was prepared and signed by a voter by the name of Ruperto M.
Celles, it being his contention that ”Celles Ferto” written on the
sixth space for councilors was the signature of said voter. Respondent
presented evidence to prove his contention, but the court of origin
found that the hand which wrote the words “Celles Ferto” on the ballot
cannot be that of the voter considering his handwriting
characteristics, and accordingly admitted the ballot for Hilao. But the
Court of Appeals, while admitting the correctness of the findings of
the lower court, concluded that the only reason why the voter wrote
said words cannot be other than his desire to identify his vote, and
rejected the ballot. If there is no dispute as to the finding that the
words “Celles Ferto” do not represent the name or the signature of
voter Ruperto M. Celles, the logical conclusion is that it is a name
written on the ballot, for someone who is not candidate, and as such it
should be considered as a stray vote. The writing of this name cannot
be considered as distinguishing mark in the absence of a clear showing
to the contrary. This ballot should be counted for Hilao.

Ballot TB-40. This ballot was objected to on the ground that it was prepared by two different hands.This ballot was rejected by the Court of Appeals because it found
that it was filled up by two different persons. The court said: “Either
the elector voted only for senators and another person filled up the
proper spaces for local official or vice versa. The names of the
senators are written pi a slanting; and flawless manner, while those
for local officials are written hastily and recklessly. It would even
appear that 2 different pencils were used.” We have explained carefully
this ballot and found this appreciation correct. This ballot should be
rejected.

Ballot TB-18. This is one of the 13 ballots with coupons detached
found deposited in the red box for spoiled ballots in Precinct “To. 3.
Also found deposited in said red box were 6 ballots with coupons
attached. The Court of Appeals found that in this precinct 200 voters
voted, 206 ballots were used, 200 detached coupons found in the red
box, and 187 ballots actually found in the white box for valid ballots,
and made the following comment; “If the ballots with their Coupons
attached were in fact considered spoiled, under the provisions of
Section J36, the respective 6 voters must have been given one more
ballot each, and this explains the fact that while only 200 electors
voted, 206 ballots were Used. Again, if the 13 ballots with their
coupons detached were in fact considered spoiled pursuant to Section
137, the respective 13 voters might not have been given another pallet
each, ‘and this explains why only 187 ballots were found in the white
box for valid ballots.” Notwithstanding this comment, however, the
Court of Appeals considered ballot TB-18 merely as a marked ballot, and
not as a spoiled ballot, as shown by the fact that it was marked at the
back as a marked ballot. And considering that this ballot does not
suffer from many defects which will render it invalid, the same wad
counted as a. good vote for Bernados.

We find this conclusion correct. In the first place, this is one of
the 13 ballots found in the red box and for which no extra ballot was
given to the voter, and so it cannot be considered .a spoiled ballot.
In the second place, if it were a spoiled ballot, it would have been
marked as such by the inspectors and their statement should bear their
signature, as required, by Section 136 of the Revised Election Code.
This was not done and instead the inspectors marked it as a marked
ballot. And in the third place, this ballot was found in the red box
without its coupon. This shows that the same the used by the voter.
These factors are sufficient to overcome the presumption of the law
that it is a spoiled ballot, (Section 147, ‘Revised Election Code), and
must have been only erroneously placed in the red box. This ballot
should be counted for Bernados.

Ballots RH-25 and RH-342. These two ballots were objected to because
on the last spaces for councilors the name Jeon Ka. Tongohan was
written with additional epithets. Thus, in ballot RH-25 “Leon Bakitong
Pasikat” was written on the sixth line for councilors whereas in ballot
RH-342 “Leon Baliw Tongohan” was also written on the sixth line for
councilors, and it is contended that the additional epithets were
written by the electors with the only purpose of identifying the
ballots., It was proven that Tongohan was a conspicuous local
politician and. the campaign manager and most aggressive orator of
Hilao, and consequently a bitter political enemy of Bernados, but it
was well-known, that he was not a candidate for my office. The Court of
Appeals refused to reject these two ballots alleging that the purpose
of the voters who prepared them in voting for Tongohan the epithets
affixed to his name was only to cast aspersions on him and not identify
their ballots. And this is “now assigned as error considering the
ruling made by the Court of Appeals in connection with two other
ballots, RH-27 and RH-347, wherein the name of Leon Ka. Tongohan
appears written on the same spaces for councilors but without any
additional epithets and yet, despite this fact, the court rejected them
as marked ballots on the simple ground that the placing of the name
Leon Ka. Tongohan on the ballots, who is not a candidate for any
office, should be interpreted as desire on the part of the voter to
identify the ballot.

While there apparently appears a contradiction in the ruling of the
Court of Appeals, in the appreciation of the four ballots above
adverted to, however, in our opinion, it did not err in admitting
ballots RH-25 and BE-342 for Bernados because the name of Leon Ka.
Tongohan, with additional epithet, which appears written on said
ballots should only be considered as stray vote which does not have the
effect of invalidating them. As we have already stated, the writing of
the name of a person who is not a candidate for an office on the ballot
cannot be considered as a distinguishing mark unless proof to that
effect appears clear. This should be distinguished from the cases cited
by counsel for petitioner^[1]
because in said cases the irrelevant epithets were affixed to the names
of persons who were candidates, which is not the case here. Tongohan
was not a candidate and so his vote should merely be treated as a.
stray vote. The Court of Appeals may have committed a mistake in
rejecting ballots RH-27 and RH-347, but this error cannot now be
corrected because said ballots are not involved in this appeal.

Ballot RH-344. In this ballot, the voter wrote “Catapusan si Hilao”
(meaning “I place Hilao last”) in the last space for councilor. The
Court of Appeals admitted this ballot for Bernados saying “that the
voter put the foolish remark on the last line for councilor to give
vent to his desire to tell Kilao that it was the end of his political
career”, and that “his intention was not to place such remark in order
to identify his vote.” We believe that this ruling is incorrect for
such expression was irrelevant and unnecessary. That expression was
undoubtedly written as distinguishing mark. As such it should
invalidate the ballot following the well-settled ruling of this Court
that “The writing of impertinent expressions in the ballot invalidates
it.” (Lucero vs. de Guzman, 45 Phil., 852; Fausio vs. Villarta, 53 Phil., 166; Villavert vs. Lim, 62 Phil., 178; Cecilio v, Tomaeruz, 62 Phil., 689, 710; Caraecle vs. Court of Appeals, et al., 50 O.G., 571.)

Ballot RH-32. In this ballot all the names of the candidates voted
for were written in ordinary writing with the exception of the name “T.
Bernados which was written in capitalized block-type letters or in or
in printed from in the space for mayor. The Court of Appeals admitted
this ballot as a valid vote for Bernados saying that the unique writing
of “T. Bernados” as above seated might only due to a desire on the part
of the voter to emphasize his favorite candidate. This is now assigned
as error it being contended that the writing of said name in such
unique and eye-catching way can only be interpreted as a desire on the
part of the voter to identify his vote.

We are inclined to uphold the ruling of the Court of Appeals for in
our opinion that is only a mere variation in which under paragraph 18
of Section 149 of the Revised Election Code cannot have the effect of
invalidating the ballot. Said section provides that “The use of two or
more kinds of writing * * * shall be considered innocent and shall not
invalidate the ballot.” This is also in line with the ruling in
Villavert vs. Lim, supra, which says:

“LETTERS IN THE FORM OF PRINTED TYPES. – The form of
the letters in which certain names of the candidates are written in the
ballots ‘Exhibits D-11 and D-19, D-25, F-25 and J-1 – which is similar
to the printed form and different from the ordinary form of the letters
in which the other names are written – does not constitute a
distinguishing mark, there being no indication either in the ballots
themselves or in the’ testimony that the adoption of the form of
printed; letters in writing certain names is with a view to marking
said ballots for purposes of identification.”

Ballot RH-257. In this ballot all the names of the candidates voted
for were written in ordinary writing with the exception of the name of
‘Teodulo Bernados” which was written in big Gothic letters with a
flower drawn underneath in the space for mayor. The Court of Appeals
declared this ballot to be valid vote for Bernados saying that such
Gothic lettering merely shows the desire of the voter to’ attain
greater clearness and emphasis on his favorite candidate. This we consider to be an error because such Gothic lettering can no
longer be considered a mere variation in the writing of the voter.
Gothic lettering is generally used in writing names on diplomas,
certificates of merit, or other documents evidencing a meritorious
award, but not in ordinary documents. When the voter wrote the name of
Bernados in Gothic letters he must have done it with the evident
intention of placing a distinguishing mark on his ballot which
necessarily invalidates it. This ballot therefore should be rejected. –

Ballot RH-192. In this ballot the voter wrote the name “Verano” in
the space for senator in the special election in capital letters while
he wrote the names of the other candidates in the respective spaces in
ordinary writing, and it is now contended that this is a marked ballot.
The Court of Appeals ruled otherwise holding that there is no positive
proof tending to show that the name “Verano” was intentionally Written
in capital letters in order to identify the ballot. To this we agree
for we believe that the writing of that name in capital letters is
merely a variation which does not have the effect of invalidating the
vote. This ballot should be counted for Benados.

Ballot RH-256. This ballot is objected to because the middle initial
“P”; and the surname “Laurel” in the first space for senator are
Written in such big letters that one can easily distinguish them from
the rest of the ballot. The Court of appeals admitted this ballot as a
valid vote for Bernados for the reason that there was no positive proof
that said initial and name of Laurel were intentionally written with
capital letters merely to identify the ballot. This ruling is correct it being merely an innocent variation of the
writing of the voter. This ballot should be counted for Bernados.

Ballot RH-185. This ballot was objected to as a marked ballot
because the voter wrote the name “Jose P. Laurel” transversally or
obliquely on the third and fourth spaces for senators, and the Court of
Appeals ruled that that is not an illegal mark because it merely shows
that Laurel was the only senatorial candidate for whom the elector
desired to vote. This ruling is now disputed on the ground that if the voter desired
to vote only for Laurel as alleged he could have written his name in
straight line on any of the eight spaces reserved for the senatorial
candidates. We believe that the ruling of the court is correct for
there is no positive evidence to, show that the intention of the
elector in writing the name of Jose P. Laurel in the way he wrote was
to identify his ballot. This vote should be counted for Bernados.

Ballot TB-41. This ballot was examined and found by the board of
inspectors as marked ballot so that at the back of it was written the
notation “marked ballot” with the signatures of the inspectors.
Nevertheless, the Court of Appeals declared this to be a valid vote for
Bernados for it did not find anything unusual in its face that may be
considered as distinguishing mark. The court said; “Except for the fact
that the name of Jose P. Laurel is written in a size smaller than the
other names appearing therein, all the names of the candidates voted
for are written in same style of writing.” To this we agree. This
ballot should be counted for Bernados.

Ballot RH-29. In this ballot the space for mayor is blank, and in
the space tor vice-mayor “P. Amonoy” was written on top thereof also in
the space for vice-mayor were written words which Bernados claims to be
his name. The Court of Appeals admitted this ballot for Bernados,
making, the following comment: “The surname of the protestant
(Bernados) was written below, but reaching almost up to, the proper
space for mayor. The name of P. Amonoy, a registered candidate for
vice-mayor, was written on the proper space for vice-mayor. Other names
of candidates were written in this manner. Evidently, the voter had
poor eyesight.” We find this comment correct. We may add that the
elector sterns to be a poor writer or of little instruction, and so he
is not accurate in writing the names on the proper space. But it
appears clear from an examination of the ballot that his intention is
to vote Bernados for the office of mayor. The court did not err in
admitting this ballot for him.

Ballot RH-167. The lower court found that the name written on the
space for mayor is “T. Bamndiao” and, consequently, rejected this
ballot for Bernados because said name is not idem sonans for
T. Bernados. The Court of Appeals disagrees with this finding and
believes that the name written might be; read either as “T. Bamndiao”,
or’”T. Barnndios”, or “T. Barnndias”, as claimed by counsel for
Bernados. The reason of the court is: “The last alphabet in the name
might be either ‘o’ or ‘s’. The writer of the ballot is almost
illiterate as shown by the fact that he tried to vote for the positions
of Mayor and Vice-Mayor only. For the office of Vice-Mayor, the voter
was able to scribble only the Initials ‘P.A.’ But there is no question
that the ballot is so defective enough as to fail to show that the
intention of the voter is to vote for Bernados.” To this comment we
agree. We have carefully examined the ballot and we are of the opinion
that the name written on the space for mayor may be admitted for
Bernados under the rule of idem sonans.

Ballot RH-341. This was rejected by the lower court because it
contains the word “Agnos” before the name of Teresa M. Jugo, a
candidate for councilor, which was considered as a distinctive mark.
Since Teresa M. Jugo was the lane woman candidate for councilor, the
word “Agnos” might have been added only to her name as a mere nickname
or appellation of friendship and so the Court of Appeals admitted the
ballot as a good vote for Bernados with the following comments “Since
we are not convinced that the word was’ written in order to identify
its voter, this ballot should be admitted as good vote for the
appellant, under Rule 9, Section 149, of the Revised Election Code.” To
this comment we agree.

BALLOTS CONTESTED BY RESPONDENT

The ballots contested by respondent are TB-19, TB-20, TB-21, TB-22,
and TB-23, which the Court of Appeals refused to admit for Bernados on
the ground that they were marked “spoiled ballots”. These ballots form
part of the 13 ballots which were found in the red box when the same
was opened during the trial in the lower court. On the back thereof
there appear written the words “spoiled ballots”, except in one, but
they were not accompanied by the signatures of the inspectors as
required by law (Section 136, Revised Election Code). They were also
found with their coupons detached. Together with the 13 ballots, there
were also found in the red box 6 ballots which have their coupons
attached and which were marked as “spoiled ballots”. Because of the
fact that the 5 ballots in question, as well as the rest of the 13
except 1, were all marked as “spoiled ballots”, the Court of Appeals
refused to count them for Bernados evidently because of the provision
of the law that “The ballots deposited in the red box shall be presumed
to be spoiled ballots, whether or not they contain such notation”
(Section 147, Revised Election Code). In this connection, it is
interesting to note the following facts found by the Court of Appeals:

“In this precinct No. 3, 200 voters voted, 206
ballots were used, 200 detached coupons found in the red box, and 187
ballots actually found in the white box or box for valid ballots. We
fully concur with the observations of the court below, repeated with
clearness in appellee’s brief, that the 6 ballots with their coupons
attached might have been considered spoiled in the manner envisioned
under Section 136 of the Revised Election Code, while the 13 ballots
with their coupons detached might have been declared spoiled ballots
pursuant to Section 137 of the same Code. If the ballots with their
coupons attached! were in fact considered spoiled, under the provisions
of Section 136, the respective 6 voters must have been given one more
ballot each, and this explains the fact that while only 200 electors
voted, 206 ballots were used. Again, if the 13 ballots with their
coupons detached were in fact considered spoiled pursuant to Section
137, the respective 13 voters might not have been given another ballot
each, and this explains why only 187 ballots were found in the white
box for valid ballots.

We are of the opinion that the Court of Appeals erred in declaring
invalid the 5 ballots in question. It is true that the law presumes
that ballots deposited in the red box are spoiled ballots, whether or
not they contain a notation to that effect, but we believe that the
Facts proven in this case as found by the Court of Appeals sufficiently
overcome such presumption pointing to the inevitable conclusion that
said ballots were placed in the red box, not at the time they were cast
by the elector, but during the canvassing of the votes, and, therefore,
they can still be the subject of re- view as marked ballots. Our
reasons for reaching this conclusion are: (1) In Precinct No. 3 where
these ballots were cast only 200 voters voted, 200 detached coupons
were found in the red box, and only 187 ballots were actually found in
the white box; or box for valid ballots. This means that the 13
Selectors whose ballots were allegedly spoiled were not given an extra
ballot each as required by law (Section 136, Revised Election Code).
Evidently these 13 ballots, including the disputed ones, had been
mistakenly placed in the red box for spoiled ballots; (2) all these 13
ballots do not have their coupons attached, as should be the case if
they were really spoiled ballots, a circumstance which indicates that
they were actually cast by the electors; and (3) the words “spoiled
ballots” written at the back of each and everyone of these 13 ballots
do not carry the signatures of the inspectors which the law requires to
serve as a guarantee of their compliance with the law. These
circumstances, as we have already stated, sufficiently overcome the
presumption that said ballots are spoiled ballots within the meaning of
the law. They can therefore still be the subject of review. We have
carefully examined the 5 ballots under consideration and we have found
that they do not suffer from any defect which would invalidate them
and, therefore, we find no reason why they should not be counted in
favor of respondent.

In resume, we declare that of the ballots contested by petitioner,
ballots marked as inhibits TB-37, TB-135, and counted for petitioner,
and ballots marked as exhibits RH-344 and RH-257 should be rejected and
deducted on the total number of votes cast for respondent. With regard
to ballots TB-19, TB-20, TB-21, TB-22, and TB-23 contested by
respondent, we declare that the same are valid votes and should be
counted in favor of respondent.

Summarizing the number of ballots which we have admitted rejected,
we find that 3 votes should be added to those obtained by petitioner
and 5 votes should be added to, and 2, votes should be deducted from,
those obtained by respondent with the result that respondent is still
winning with a majority of 3 votes.

We, therefore, affirm the decision appealed from, without pronouncement as to costs.

Pablo, Bengzon, Padilla, Montemayor, Reyes, Jugo, and Concepcion, JJ., concur

Mr. Justice Labrador took no part.

Mr. Justice Reyes, J.B.L., did not took part.”

---

^[1] Cecilio vs. Tomacruz, 62 Phil. 694; Corpus vs. Ibay, G. R. No. L-2305, July 8, 1949; Fausto vs. Villarta, 53 Phil.,166, and Villavert vs. Lim, 62 Phil. 178.