EMILIO ARZAGA, PETITIONER, VS. FRANCISCO BOBIS, SR.

In the general election of November 10, 1959, the board of municipal
canvassers of El Nido, Palawan, proclaimed incumbent Emilio Arzaga
mayor with a majority of 2 votes (509 by 507). His election was
contested in due time, and the Court of First Instance of Palawan
likewise declared him winner by 3 votes (509 by 506). His opponent
Francisco Bobis, Sr., brought the case to court of Appeals. The latter
reversed the decision of the lower court and declared Bobis, Sr., the
winner by 5 votes (502 by 507). The present case is an appeal by certiorari from the decision of the Court of Appeals.

Petitioner Arzaga assigned twelve errors involving 15 ballots,
whereas respondent Bobis, Sr., made five counter-assignments of error
relative to 6 ballots. Thus, we are asked to review a total of 21
ballots only.

PETITIONER’S TWELVE ASSIGNMENTS OP ERROR

“1. The Court of Appeals erred in considering Ballot Exhibit ‘A-6’ (Precinct 3-A) as valid vote for respondent.”

In the blank space for mayor in this ballot the following was written: “F. Vuvis”. Under the idem sonans rule, this should be counted in favor of respondent Bobis, Sr. The first assignment of error is, therefore, overruled.

“A name or surname incorrectly written which when
read has a sound equal or similar to that of the real name or surname
of a candidate shall be counted in his favor,” (Sec. 149, paragraph 2,
Revised Election Code.)

“11. The Court of Appeals erred in
considering ballot Exhibit ‘A-1’ (Precinct 3) as a valid vote for
respondent, in spite of the fact that what is written thereon is not
the name of respondent nor idem sonans thereof.“

In the space for mayor “F. Pabes (or Pabis), Sr.” was written by the
voter. The second assignment of error is likewise overruled. It is
counted in favor of respondent under the idem sonans rule.

“III. The Court of Appeals erred in declaring Exhibit ‘B-6’ (Precinct 3-A) as invalid vote against petitioner.”

With respect to this ballot the Court of Appeals said:

“En la balota B-6 aparece votado E. Arzaga para el
puesto de alcalde. El elector escribe con bastante claridad; voto a 6
candidatos para senadores, para el puesto de gobernador y
vice-gobernador, y a 6 consejales. En el espacio para miembros de la
junta provincial, escribio ‘E. Arzaga’ y en el segundo espacio ‘Castro
Adolfo’ pero tacho estos dos nombres y despues de la palabra ‘Arzaga’
puso Totang ena mo’ y despues del apellido ‘Adolfo’ puso ‘Berat’.
Indudablemente, estas palabras insultantes e indecentes han sido
escritas por el mismo elector a juzgar por la caligrafia con que estan
trazadas las mismas.”

We have examined this ballot, and we agree with the Court of Appeals
that the voter used indecent words to mark his ballot. The third
assignment of error is similarly overruled.

“IV. The Court of Appeals erred in considering
ballot Exhibit ‘B-14’ (Precinct 3-A) as marked and invalidating it
against herein petitioner.”

Petitioner Emilio Arzaga was voted for in this ballot. The Court of
Appeals nullified the same as marked inasmuch as “Perez Bungcad” was
written on the third space for councilors.

In the absence of any evidence aliunde, we are not
convinced that this is a marked ballot. In fact, there was a candidate
for councilor by the surname of “Bungcad”, although his first name was
not Perez, but Patricio, corroborated by the election return, Exhibit
“YY’, the ballot, Exhibit B-X-4, and by the tally sheet, Exhibit
“A-X-6”. The fourth assignment of error is sustained. Ballot Exhibit
“B-14” of Precinct 3-A is counted in favor of petitioner Arzaga.

“V. The Court of Appeals erred in considering ballot
Exhibit ‘B-5’ (Precinct 3-A) as marked and invalidating it against
herein petitioner.”

Petitioner Arzaga was voted for herein. But on the 8th space for senators, the voter wrote: “R. Perez Cabus Cabus”. No evidence aliunde
was presented as to the meaning of “Cabus Cabus”. Hence, it does not
appear certain, nor clear, that the ballot is marked (Cruz vs.
Court of Appeals, G. R. No. L-14095, 10 April 1959). While Perez is not
a candidate for senator, the writing of his name should be considered a
stray vote only, in accordance with paragraph 13, Section 149, of the
Revised Election Code, to wit:

13. Any vote in favor of a person who has not filed
a certificate of candidacy or in favor of a candidate for an office for
which he did not present himself, shall be void and counted as stray
vote but shall not invalidate the whole ballot,”

The fifth assignment of error is, therefore, sustained. Exhibit “B-5” is counted in favor of petitioner Arzaga.

“VI. The Court of Appeals erred in considering
ballot Exhibit ‘B-10’ (Precinct &-A) as marked and invalidating it
against petitioner.”

VII. The Court of Appeals erred in
considering ballot Exhibit ‘B-11’ (Precinct 3-A) as marked and
invalidating it against herein petitioner.”

VIII. The Court
of Appeals erred in considering ballot Exhibit ‘B-12’ (Precinct 3-A) as
marked and invalidating it against herein petitioner.”

The 6th, 7th, and 8th assignments of error are taken up together
because they have a common feature. In all of them petitioner Arzaga
was voted as mayor. In ballot Exhibit “B-10”, the voter wrote on the
fifth line for councilors the words “Perez lagare talob sa kabila”. In
ballot Exhibit “B-1l” was written “Perez lagari”, on the sixth space
for councilors. In ballot Exhibit “B-12” also appears “Perez lagare” on
the fourth space for councilors. With respect to these ballots, the
Court of Appeals said:

“El protestante contiende que estas balotas son
marcadas porque aparecen votados ‘Perez’ con varias palabras
impertinentes. El protestante declaro en la vista de esta causa que el
nombre completo de Jose Perez es Jose Sanchez Perez y que Jose Perez no
es conocido en el barrio con una apodo. Jose Perez no era candidato
para ningun cargo.”

“El protestante declaro que la palabra
“lagare” en visayo significa ‘sierra’. En tagalog, que es nuestra
lengua nacional, la palabra ‘lagare’ tiene el mismo signincado y aun
sin pruebas podemos dedarar que la palahra ‘lagari’ en tagalog
significa ‘sierra’. Tenemoe, por conseguiente, que segun el protestante
no contradicho por ningun otro testigo, Jose Perez no es conocido en el
barrio por ningun otra apodo o apelativo.”

We agree with the Court of Appeals that these ballots were marked
intentionally to identify them. “Lagare” is an impertinent and
derogatory word meaning a person who would want to profit or get from
both sides; and the appearance of three ballots from the same precinct,
having the same derogatory expression, strongly implies its use as a
mark. The 6th, 7th, and 8th assignments of errors are overruled.

IX. The Court of Appeals erred in considering ballot
Exhibit ‘B-8’ (Precinct 3-A) as marked and invalidating it against
herein petitioner.”

Petitioner Arzaga was voted as mayor in Exhibit “B-8”. However, on
the 6th line for councilors the words “Bienes—OPA” were written.
While no evidence aliunde was presented by respondent as to
the meaning of these words, we cannot agree with the Court of Appeals
that the ballot was marked intentionally, considering that letters OPA
were written in capitals, at the bottom of the ballot and away from the
rest of the names of the persons voted for, which are all in current
script. Nor is there showing that the letters are the initials of a
candidate. The 9th assignment of error, is, therefore, overruled
(Coraede vs. Del Castillo 94 Phil., 308; 50 Off. Gaz., 571; Moya vs. Del Fierro, 69 Phil., 199).

“X. The Court of Appeals erred in not invalidating
Ballots Exhibits A-1′, ‘A-3’, ‘A-7’, and ‘A-8’ (Precinct 3-A) against
respondent.”

Petitioner Arzaga claims that indecent words or expressions were
written on these four ballots. Since he did not, or could not, specify
the alleged indecent words or phrases therein, the 10th assignment of
error is forthwith overruled. These ballots are counted in favor of
respondent Bobis, Sr.

“XI. The Court of Appeals erred in counting ballot Exhibit ‘A-2’ (Precinct 3) in favor of respondent.”

On the space for mayor was written “F. Babes” or “F. Babeis”. Obviously, the voter intended to vote for respondent Bobis, Sr. (idem sonans rule). The 11th assignment of error is overruled.

“XII. The Court of Appeals erred in not considering
ballot Exhibit ‘A-3’ (Precinct 3) marked and in counting it a valid
vote for respondent.”

In Exhibit “A-3” appears written in the space for mayor “Kiko
Padrieno Bobis, Sr.” “Kiko” is just a nickname for Francisco, and
“Padrieno” is nothing more but an expression of respect. The intention
of the voter to mark his ballot is not clear. The 12th assignment of
error is overruled.

RESPONDENT’S COUNTER-ASSIGNMENT OF ERROR

Respondent Francisco Bobis, Sr., made five counter-assignments of error involving 6 ballots, which will be taken up one by one.

“First Error. The Court of Appeals erred in
rejecting the votes for respondent in ballots Exhibits B (s)-1
(Precinct 3) and B(s)-2 P(Precinct 3).

In Exhibit “B (s)1, we read the name written on the space for mayor as “F. Bobkis”, which is idem sonans with
the name of respondent. But in Exhibit “(s) 2,” “F. Boslro” appears to
have been written. There being no similarity in the sound as written in
the latter ballot with that of respondent Bobis, Sr., the same may not
be counted in his favor. The first counter-assignment of error is
sustained as to Exhibit “B(s)1, and overruled as to Exhibit ‘B(s)2.

“Second Error. The Court of Appeals erred in holding ballot Exhibit H-1 (Precinct 3) as valid for petitioner.”

“E. arsaaa” was voted for as mayor in this ballot. Plainly, the
voter intended to vote for respondent E. Arzaga, and the vote is valid
under the idem sonans rule. The second counter-assignment of error is overruled.

“Third Error. The Court of Appeals erred in holding ballot Exhibit B-1 (Precinct 3-A) as valid for petitioner.”

Petitioner E. Arzaga was voted for in Exhibit “B-1” of Precinct 3-A.
Respondent Bobis, Sr., contends that this ballot is marked because the
words “Casoy Guzman” was written on the first space for councilors.
According to the Court of Appeals, no evidence aliunde was
presented to show the intended meaning of the word “Casoy”. We believe
this ballot is a valid vote for petitioner Arzaga (Cruz vs. Court of Appeals, supra). The third counter-assignment of errror is, therefore, overruled.

“Fourth Error. The Court of Appeals erred in not holding ballot Exhibit B-7 (Precinct 3-A) as not marked by the words “Dreo Boro Sosoe.”

Petitioner Arzaga was voted for herein. However, respondent Bobis,
Sr., contends that this ballot was intentionally marked inasmuch as the
words “Dreo Boro Sosoe” were written on the third space for councilors
and on the fourth space appeared “Bienes I Love y Darling”. In the
absence of evidence aliunde, we can not determine whether the
words “Dreo Boro Sosoe” were not meant to stand for the name of a
non-candidate. As to the “I love y darling”, it merely expresses
preference for candidate Bienes, and does not invalidate the ballot
(Delgado vs. Tiu, 105 Phil., 835). Exhibit “B-7” of Precinct 3-A is, therefore, valid. The fourth counter-assignment of error is overruled.

“Fifth Error. The Court of Appeals erred in holding ballot Exhibit B-2 (Precinct 3-A) as valid vote for petitioner.”

Petitioner E. Arzaga was voted as mayor in this particular ballot.
Respondent Bobis, Sr., claims that it was intentionally marked, because
“S. Sumurraga” was writtenthree times herein. We have examined the
ballot carefully and have found that “S. Sumurraga” was really written
on three different spaces: (a) on the 8th space for senators; (b) on the space for provincial vice-governor; and (c)
on the space for vice-mayor. According to the election return, Exhibit
“YY”, and the tally sheet, Exhibit “A-X-6”, Santiago Sumurraga was a
candidate for vice-mayor only. From the ballot it is evident that the
voter could hardly write. It is apparent that it took great pains and
trouble to write the three sets of “S. Sumuraga”—S. Sumarraga”—”S.
Sumarruga”. Attention is also invited to the fact that the first six
spaces for senators were left blank. On the seventh space for senators
he wrote “Villareal”. He did not vote for any member of the provincial
board. He voted for only one councilor, “Gusman”, but he wrote it on
the sixth line, and also left the first five spaces for councilors
blank. All these facts and circumstances found on the ballot seems to
indicate the apparent intention of said voter to mark his ballot to
identify it. In upholding the validity of this ballot the Court of
Appeals relied on paragraph 3, Section 149, of the Revised Election
Code, which provides:

“3. When the name of a candidate appears in two
spaces of the ballot, it shall be counted in favor of the candidate for
the office with respect to which he is a candidate. The vote for the
office for which he is not a candidate shall be counted as stray.”

The Court of Appeals also cited the case of Amurao vs. Calangi, 104 Phil., 347, which is not applicable to this case. We believe that the case of Gutierrez vs.
Aquino, G. R. No. L-14252, promulgated on February 28, 1959, is the one
applicable to this case, a portion of which is quoted hereunder, to wit:

“Ballot Exhibit P32-GI. This ballot was rejected by
the trial court as marked because the name “Recto”, a candidate for
Senator, was written in all the eight spaces for senators. To this
conclusion we agree because the writing of the name “Recto” several
times evidently was intended to identify the voter who cast this
ballot. Rule 3, Section 149, of the Revised Election Code is
inapplicable. This rule contemplates the writing of a name of a
candidate in TWO SPCES of the ballots whereby the vote for the office for which he is not candidate shall be counted as stray vote. This ballot was properly rejected.”

The rule of the Election Code above-quoted is justified in the case
of a name written in two spaces because the duplication could be an
oversight. But the rule can not be stretched indefinitely without
opening the door to fraud. Ballot Exhibit “B-2” of Precinct 3-A should
be nullified, and the fifth counter-assignment of error sustained.

In conclusion, only two (2) votes should be added to petitioner
Emilio Arzaga’s total number of votes and one (1) deducted from him.
The votes of respondent Francisco Bobis, Sr., should be increased by
one. The result is as follows:

Wherefore the decision appealed from is affirmed, with the
modification above-indicated. Respondent Francisco Bobis, Sr., is
hereby declared elected to the office of municipal mayor of El Nido,
Province of Palawan, with a majority of five (5) votes. Costs against
petitioner.

Bengzon, C.J., Padilla, Bautista Angelo, Labrador, Concepcion, Barrera, Paredes and Makalintal, JJ., concur.