G.R. No. L-24477. February 28, 1967
JOSE KATIGBAK, PROTESTANT-APPELLEE, VS. RICARDO MENDOZA, PROTESTEE-APPELLANT.
REGALA, J.:
This is an appeal directly to Us, on questions of law, from the
decision of the Court of First Instance of Batangas
declaring Jose Katigbak elected for the position of
vice-mayor of the municipality of Padre Garcia, province of Batangas,
in Election Case No. 1521, entitled Jose Katigbak,
Protestant, versus Ricardo Mendoza, Protestee.
After the local elections in November, 1963, the Municipal Board
of Canvassers of Padre Garcia, Batangas, certified
that Ricardo Mendoza, one of two leading candidates for vice-mayor in that
municipality, obtained 1,327 votes, while his rival, Jose Katigbak,
obtained 1,310 votes. Accordingly, Mendoza
was proclaimed elected.
Thereafter, or on November
29, 1963, Katigbak filed a petition of
protest against the proclamation of Mendoza. The latter, however, filed a motion to
dismiss on the grounds that the court lacks jurisdiction and that the
allegations in the petition are ambiguous, indefinite and unintelligible. By order of December 16, 1963, the court denied the motion to dismiss
but required the protestant to submit an amended petition specifying thereat
the precincts protested and to indicate and describe all frauds, mistakes,
errors and irregularities committed in each of the said precincts. In compliance, the protestant filed an
amended petition indicating that the irregularities so alleged were perpetrated
in Precincts 1, 10, 13, 17, 19, 21 and 22 of the municipality
of Padre Garcia. The protestee
filed an answer and counter-protest covering Precincts 2, 4, 8, 11, 14, 16 and
18, in the same municipality and on the same grounds stated in the protest of
the protestant.
After considering and counting all the ballots contested or
uncontested by one or the other, the lower court rendered judgment declaring
the protestant, Jose Katigbak, duly elected
vice-mayor, with a plurality of only one vote over the protestee,
Ricardo Mendoza, with the right of the former to assume office as soon as
judgment becomes final.
Only the protestee has appealed and the
errors assigned by him will be taken one by one in the following discussions.
I. THE LOWER COURT
ERRED IN NOT TAKING INTO CONSIDERATION THE ADDITIONAL TWO (2) VOTES FOR
PROTESTEE-APPELLANT IN PRECINCTS 8 AND 18 AS PER REPORT OF THE BOARD OF
REVISORS IN SAID PRECINCTS.
The appellant insinuates here that the court below did not take
into consideration the findings of the Board of Revisors
as to the abovementioned precincts. From
the report submitted by the said Board, we find the following remarks:
Precinct 8: “One
ballot from spoiled ballot box claimed by protestee. After counting the votes for Mendoza
it was found out that there were 22, while in the return there were only 21,
but counting the vertical entry there were actually 22.”
Precinct 18:
“After counting the votes cast in favor of Mendoza,
there were 44 while in the return and in the Tally Sheet there were 43. One ballot for Mendoza written
in the column for Provincial Board claimed by Protestee.”
The decision of the lower court states that in Precinct 8,
twenty-two ballots all in all are claimed by protestee,
but since one of these ballots was taken from the spoiled ballot box,
and for failure of the protestee to present evidence
to support his claim to it, the actual number of ballots counted for protestee should only be twenty-one.
As to Precinct 18, the decision states that out of the forty-four
ballots for the protestee, the Board considered only
forty-three because one was written in the column for the members of the
provincial board. As a matter of fact,
the said ballot was not included by the commissioner for appreciation by the
trial court.
As shown above, the findings of the lower court on these two
precincts were properly and correctly based on the reports made by the Board of
Revisors. We
thus see no basis for the first assigned error.
II. THE LOWER COURT ERRED IN REJECTING AS VALID
VOTES FOR PROTESTEE-APPELLANT BALLOT EXHIBITS P22-C, P22-H, P22-I, P22-J, P22-K
and P22-L ON THE GROUND THAT THEY ARE MARKED BALLOTS.
The lower court observed that on these ballots all from one
precinct, the name of Carlos Laylo, a registered
candidate for councilor, is written as “C. Layle”
and that it is the last name written for councilor. To the mind of the trial judge, the placing
of “C. Layle” for “Laylo”
as the last name was a product of an understanding among the voters and the protestee whose name appears in all these ballots as the
common candidate for vice-mayor. Citing
the ruling in Villavert v. Lim, 62 Phil. 178, that
“ballots should be rejected where the manner in which the candidates’ name
is written gives him intention to mark or identify the ballot,” the lower
court considered these exhibits as marked ballots which should not be counted
in favor of the protestee.
Scrutinizing the said exhibits, we have found that in Exhs. P22-C, P22-I and P22-L, the arrangement in the names
of not only all the councilors voted for, but also of the senators, are the
same. In Exh. P22-J, the names of senators are arranged as in
the three mentioned exhibits but those of the councilors are not so arranged
for there are only four councilors voted for, the last, coincidentally, of
which is Layle.
In Exh. P22-H, the
arrangement in the names of the councilors is also identical to that in said Exhs. P22-C, P22-I and P22-L, but there are no names for
senators. Exh. P22-K is an entirely
different ballot as far as the arrangement in the names of senators and
councilors is concerned, but the last name written is “C. Laylo.” Except for one (Exh. P22-J), the candidate voted for mayor in all
these ballots is Pesigan.
A showing alone that several voters belonging to the same
precinct have written the names of particular candidates in an identical manner
cannot justify the inference that the voters had a plan to identify their
votes. The determinative factor in the
nullification of ballots for being marked as following a design or pattern is
the existence of evidence aliunde tending to
show the intention or purpose in the use of the contested manner or means of
voting, which is to identify the ballot.
Indeed, an identification mark cannot be presumed. (Villarosa
v. Guanzon, G. R. No. L-19605,
September 28,
1962, citing Jaucian
v. Cellos, 55 O.G. 10394; Gabuya v. Dajao, G. R. No. L-20235, September 30, 1963)
In the case of Protacio
v. de Leon, G. R. No. L-21135, November
8, 1963, We held:
“Respondent alleges that all the ballots followed a common
pattern of identification, whereby the last councilor voted for in each of the
above ballots was candidate Angel Cortez, cousin and most influential leader of
petitioner in the locale of said precincts.
Unless these ballots are declared, in any part of this decision, as
invalid for other reasons, We are not ready to share
the respondent’s view. More often
than not, voters follow the arrangement appearing in the same ballots (cartilla) distributed by each candidate. This, standing alone, does not render the
ballot marked. The constant doctrine is
that no ballot should be declared null and void as marked, unless there are
clear and sufficient reasons to justify such conclusion. (Gutierrez v. Reyes, G. R.
No. L-13137, February 28, 1959)
No such reasons appear herein.” (Underscoring ours)
The fact that the name “Laylo”
is incorrectly spelled in these ballots should not invalidate the ballots because
Rule 2, Section 149 of the Revised Election Code, is explicit that names of
candidates incorrectly written if idem sonans
with the names of candidates shall be considered valid. (Gutierrez v. Aquino, G. R. No. L-14252, February 28, 1959) In
the absence of evidence that the name of a candidate was incorrectly written
designedly to identify the voter, the vote cannot be held invalid for said
candidate. The second assigned error is
based upon a valid ground and we are constrained to consider the six ballot
exhibits valid, which also means six votes in favor of the protestee-appellant.
III. THE LOWER COURT ERRED IN REJECTING AS VALID
VOTES FOR PROTESTEE-APPELLANT EXHIBITS P21-E, P19-A, P19-B, P22-D, P11-A and
P18-A ON THE GROUND THAT THEY ARE MARKED BALLOTS
Exhibit P21-E – Apparently, the appellant does not
question the admission of this particular ballot but is questioning Exh. PI-E as discussed in his brief. In this exhibit, the name “Goce,” a candidate for councilor, is written not only
on the first space but also on the seventh and eighth for councilors. This Court has ruled in a number of cases
(Gutierrez v. Aquino, supra; Gutierrez v.
Reyes, supra; Delgado v. Tiu, G. R. No. L-14143, May 27, 1959; Salalima v. Sabater, G. R. No.
L-14829, May 27, 1959) that the writing of a name more than twice on the ballot
is considered to be intentional and serves no other purpose than to identify
the ballot. We therefore agree with the
lower court that said Exhibit P1-E is marked and must be rejected.
Exhibit 19-A – On space 1 for councilors, the name “Evora” is written.
Underneath, on spaces 2 and 3, there appear two parallel vertical lines
resembling quotation marks. On line 4
for councilors again, the name “Silva” is written, and under it, on
space 5, two parallel lines likewise appear.
Lines 6, 7 and 8 are filled up with names of other candidates. The court below held that the intention of
the voter in putting these marks was to emphasize that he was voting for Evora and Silva more than once.
This Court has pronounced in Delgado v. Tiu,
supra, that the two short parallel lines on spaces where the voter did
not vote merely indicate the voter’s desistance from voting and should not
invalidate the ballot, which ruling is well in accordance with Rule 17 of the
Rules for the appreciation of ballots.
(Section 149, Revised Election Code) Ballot Exhibit 19-A is valid.
Exhibit 19-B – This ballot was rejected on the ground that
the voter had no fixed mind as to whom of the two candidates, Mendoza and Katigbak, he should vote.
On the space for vice-mayor, this is what appears: MEND K.
We think the lower court did not commit a mistake in concluding that
after the voter here had written the first four letters of the name Mendoza, he
changed his mind and decided to write Katigbak and he
so started by writing letter K. The vote
as it stands cannot be credited for either of the candidates.
Exhibits 22-D and 11-A – Again, the court below did not
commit any error in rejecting these ballots as marked, it appearing that on
each of them are written three times the names of certain candidates. This is on the same principle that Exhibit
P1-E is being excluded.
Exhibit 18-A – The name “Espiritu”
appears on the first and last spaces for councilors and on each of the spaces
in-between are two curved lines resembling close parentheses. In the cases where we decided to declare as
invalid some ballots in which names of candidates are repeated, such names were
written three or more times. In this
case, the name “Espiritu” appears only
twice. In the absence of evidence to
show that the purpose was to identify the ballot, such a single repetition does
not invalidate the whole ballot. Neither
are the lines on each of the empty spaces to be considered as marks since the
rule under paragraph 17 of the rules for the appreciation of ballots is that
circles, crosses or lines put on the spaces on which the voter has not voted
shall be considered as signs to indicate his desistance from voting and shall
not invalidate the vote. Exhibit 18-A is
then valid and the vote therein favor of the protestee-appellant
should be counted.
IV. THE LOWER COURT
ERRED IN NOT ADMITTING AS VALID VOTES FOR PROTESTEE-APPELLANT BALLOT EXHIBITS
P18-9, P18-10, P18-11, P18-12, P18-13, P18-14 ON THE GROIND THAT THEY ARE
MARKED BALLOTS.
Here, names of non-candidates appear on the ballots. In each of Exhibits P18-9, 18-10, 18-11 and
18-13, the name “Manalo” has been written
on one of the spaces. Likewise, in
Exhibits P18-12 and 18-13, the names “Artemio Malaluan” and “Domingo Zono”
respectively, appear. During the
hearing, these ballots were formally presented as evidence by the protestee, claiming that if the name of a person who is not
a candidate has been written on any of the spaces this would not invalidate the
ballot. The counsel for the protestant
made no comment to such presentation.
The court, however, declined to make any discussion, and did not make
any ruling, on these exhibits.
Rule 13 under Section 149, is clear that “any vote in favor
of a person who has not filed a certificate of candidacy or in favor of a
candidate for any office for which he did not present himself, shall be void
and counted as a stray vote but shall not invalidate the whole ballot.”
This rule has been applied by this court in a line of cases. (See Gutierrez v. Reyes, supra;
Delgado v. Tiu, supra; Ferrer
v. Alvar, G. R. L-12083, July 31, 1957; Salalima v. Sabater, supra;
Conui-Omega v. Samson, G. R. L-21910, November 11,
1963; Calo v. Court of Appeals and Casiano, G. R. L-21256, Sept. 30, 1963; Tajanlangit
v. Cazeñas, G. R. L-18894, June 30, 1962; Trajano v. Inciso, G.R. L-23895,
Feb.___ , 1967.) We find that these ballots are not invalid and the votes for
vice mayor should be counted for protestee-appellant.
V. THE LOWER COURT
ERRED IN ADMITTING AS VALID VOTES FOR PROTESTANT-APPELLEE BALLOTS EXHS. P1-8 and P21-3.
These ballots contain the word “Pepe,”
which is the nickname for Jose, as the one voted for the office of
vice-mayor. It so happens that the first
name of candidate Katigbak is Jose, which, we
suppose, is the reason the trial court admitted these votes for him. It is settled, however, that where only a
nickname of a candidate is written without being followed or accompanied by
his surname, the vote should not be given effect. (Tajanlangit
v. Cazeñas, supra; Conui-Omega
v. Samson, supra; Felisilda v. Achacoso, G. R. No. L-
21228, November 22, 1963) This
ruling is in line with Rule 9, section 149 of the Revised Election Code, which
states that the “use of nicknames and appellations of affection and
friendship if accompanied by the name or surname of the candidate does not
annul such vote. x x”
In this case no name or surname accompany the word
“Pepe.” The votes should not be counted for
Katigbak.
In recapitulation, Exhibits P22-C, 22-H, 22-I, 22-J, 22-K, 22-L,
19-A, 18-A, 18-9, 18-10, 18-11, 18-12, 18-13 and 18-14 should be considered
valid, and since in these ballots the protestee-appellant
was voted for vice-mayor, these should be counted in his favor. Ballots P1-8 and P21-3, on the other hand,
should be discounted from the total number of votes for protestant-appellee. Whereas,
the trial court declared Jose Katigbak as having
garnered 1308 votes as against Ricardo Mendoza with 1307, We have found in this
review that Katigbak, or the protestant-appellee, should be credited with only 1306 and Ricardo
Mendoza, protestee-appellant, should be given 1321,
or that the latter has won with a majority of 15 votes over the former.
PREMISES CONSIDERED, the decision
appealed from is hereby reversed.
Ricardo Mendoza, the protestee-appellant, is
hereby declared the vice-mayor elect for the municipality
of Padre Garcia. Costs against protestant-appellee.
Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Bengzon, Zaldivar, Sanchez, and Castro, JJ., concur.