PEDRO ESTELLA, PROTESTANT AND APPELLANT, VS. PEDRO EDAÑO, PROTESTEE AND APPELLEE.

Pedro Estella and Pedro Edano were candidates for the office of
mayor of Masinloc, Zambales in the elections held on November 10, 1959.
After “he canvassing’of the results of the election was known,
giving Edano a majority of 194 votes, Edano was duly proclaimed
elected.

Estella filed a protest in the Court of First Instance of Zambales
on December 29, 1959,” wherein he sought a recounting of the ballots
cast in precincts Nos; 2, 3-C, 4 and 4-A, on the ground that fraudulent
acts forgery and other irregularities were Committed, and of those in
precincts Nos; 6-A, 10, 10-A and 10-B, claiming voting therein was
attended by terrorism, intimidation, and other election anomalies to
the prejudice of the protestant.

The case was first set for hearing on March 2 and 3, 1960. On the
first day of the hearing, the ballot boxes in precincts Nos. 2, 3-C, 4
and 4-A, where fraudulent acts, forgery, and other irregularities were
allegedly perpetrated, were opened and the ballots found therein
examined and recounted. Protestant did not register any objection to
the ballots cast therein. However, he requested for the postponement of
the hearing scheduled for the following day, promising to present in
the next session evidence to prove that terrorism existed during the
elections, before the other ballot boxes from precincts Nos. 6-A, 10,
10-A, and 10-B are to be opened. The court granted this petition and
the case was, consequently, set for hearing on April 11 and 12, 1960.

On April 5, 1960, protestant again moved for postponement of the
trial, which was granted and the same was re-set for June 15 and 16,
1960. On June 11, protestant filed another motion for postponement.
This, again, was granted by the court, and the continuation of the
hearing was set for July 20 and 21, 1960. As protestant once more
requested for transfer of the hearing, the court granted the same by
order of July 20,1960, with the warning that should protestant fail to
appear at the hearing scheduled for the following day, July 21, the
case would be considered submitted for decision.

On that day, July 21, 1960, the court received a telegraphic motion
from the protestant asking for the postponement of the hearing on the
ground that the NBI handwriting expert to be presented by him would be
available only after August 10, 1960. This was amplified by a motion
explaining the necessity of the presentation of said expert witness to
prove that only one or two persons prepared the ballots in precincts
Nos. 10, 10-A and 10-B.

This time, the court denied the motion, “it appearing that this case
has been pending for more than six months as a result of several
postponements asked by the protestant to enable him to obtain the
necessary evidence in this case, and in view of the mandate of Section
177 of the Revised Election Code that the election protest of a
municipal office shall be decided within six months after its
presentation”. The case, therefore, was considered submitted for
decision.

On August 3, 1960, the court rendered a decision reading as follows:

“This is an election protest for the office of
mayorship of Masinloc, Zambales. The protestant seeks the recounting
of the votes cast in Precincts Nos. 2, 3-C, 4, and 4-A on the ground
that an irregularity was committed in the counting of the votes cast in
said precincts. He also seeks to void the votes cast in Precincts Nos.
6-A, 10, 10-A and 10-B on the ground that there were other
irregularities committed in said precincts. However, when the ballot
boxes for Precincts Nos. 2, 3-C, 4, and 4-A, were opened and the
ballots therein recounted, no objection was raised by the parties on
the validity of the ballots cast for the mayorship of Masinloc,
Zambales; and the result of the recounting tallies with the election
returns with respect to Precincts Nos. 2, and 3-C, and with respect to
Precincts Nos. 4 and 4-A the recounting of votes shows that the
protestant and the protestee received one hundred thirty (130) votes
each in precinct No. 4-A, while in Precinct No. 4 the protestant
received sixty-nine (69) votes which also tallies with the election
returns, and the protestee received ninety-six (96) votes or one vote
less than what he got in the election returns.

“On the
alleged irregularities committed in Precincts Nos. 6-A, 10, 10-A, and
10-B, the protestant has failed to substantiate them.

“In view of the foregoing, judgment is hereby rendered dismissing the
instant protest with costs against the protestant, and declaring the
protestee Pedro Edano to have been duly elected mayor of Masinloc,
Zambales in the last election of November 10, 1959.

“So ordered.”

Protestant thus interposed an appeal to the Court of Appeals. Said
court, however, finding that no question of fact is involved in the
appeal, certified the case to us for adjudication in accordance with
law.

It is now contended by appellant that the lower court erred:

1. In considering the case submitted for decision and denying; the
   petition for postponement, because it considered Section 177 of the
   Revised Election Code, which states that the election protest of a
   municipal office shall be decided within six (6) months after its
   presentation, as mandatory.

2. In
   considering the case (submitted) for decision despite the fact that the
   court has not as yet opened the ballot boxes Nos. 10, 10-A, 10-B and
   6-A and the commissioners appointed by the court have not submitted
   their report regarding the contents of said ballot boxes.

3. In
   denying the protestant-appellant’s motion for postponement by telegram
   to be able to secure the presence of a very important witness, sent on
   July 21, 1960, after receipt of the order of July 20, 1960, wherein the
   hearing was set for the next day, July 21, 1960, with a warning as set
   forth in said order.

4. In denying the motion for reconsideration and new trial filed by the herein protestant-appellant.

The appeal is not meritorious. Contrary to protestant-appellant’s
allegation, the dismissal of the protest was not predicated on the
strict observance of Section 177 of the Revised Election Code providing
for a period of 6 months within which a decision in a protest involving
a municipal office has to be decided. As a matter of fact, it must be
because of its awareness of the directory nature of such provision that
the court did not dismiss the protest when the six-month period from
the date of the filing thereof (on December 29, 1955) had elapsed, but
only after the protestant-appellant failed to appear and adduce
evidence at the hearing of July 21, 1960. The dismissal, clearly, was
for failure of said protestant to substantiate the allegations of the
protest and not merely because of the lapse of the 6-month period.

It’ can not also be seriously contended that the lower court erred
in denying protestant’s telegraphic motion for postponement, and in
considering the case submitted for decision before the ballot boxes in
Precincts Nos. 10, 10-A, 10-B and 6-A were actually opened arid the
ballots contained therein recounted.

In the first place, considering the charges preferred by protestant
in connection with the various’precincts specified in the protest, the
testimony of the expert witness would not be of such materiality as to
warrant a postponement of the trial.

Protestant charged, with respect to Precinct No. 2, that the
signatures of the election inspectors were forged and that no less than
50 votes validly cast in his favor were allegedly read for the
protestee. While the testimony of the expert would be necessary to
prove the forgery, the ballots themselves would be the best evidence to
prove the charge that ballots in favor of the protestant were read for
the protestee.

With respect to Precinct No. 3-C, it was claimed that the ballot box
was removed from the Municipal Treasurer’s office and was brought to
the session hall of the municipal building where the same was emptied
and its contents tampered with. This, again, could be established by
proofs, other than the testimony of the expert, showing that such
illegal acts were done.

As to Precinct No. 4, protestant charged that there was a mixed-up
of the ballots thus enabling the election inspectors to tamper the true
results of the voting. This charge could also be proven by evidence of
such irregularity or disorder, and hot by an examination of the
writings on the ballots.

In Precinct No. 4-A, the Board of Inspectors allegedly failed to
read in favor of protestant 40 ballots found hidden underneath the
ballot box. The charge could properly be substantiated by a recounting
of the ballots, not an examination thereof.

In connection with Precincts Nos. 10, 10-A and 10-B, located in the
private property of the Consolidated Mines, Inc., it was charged that
the chief of the mining police force, a certain Delfin Fadera,
terrorized and intimidated the voters into voting for the protestee,
and that during the counting, ballots validly cast for the protestant
were not read. These charges could be established by.testimonies and
other proofs of the existence of the alleged terrorism, and by a
recounting of the ballots, but not by the testimony of a handwriting
expert.

As to Precinct No. 6-A, wherein the Chairman of the Board of
Inspectors allegedly took the ballot box to her residence where the
contents thereof were removed and tampered with, such alleged illegal
act could have been proven by other evidence. As a matter of fact,
protestant already submitted a photograph purportedly showing the
serious and anomalous situation in this precinct. Certainly, the
testimony of the expert witness would not be necessary to establish
this point.

Secondly, considering that the court actually had dealt with the
protestant with leniency in the sense that the latter was given more
than enough opportunity to prove his charges, and had even given him
warning that no further postponement would be granted, the denial of
the motion for the transfer of the hearing set for July 21, 1960, is in
order.

Regarding the order of the court denying protestant’s motion for new
trial, taking into account the fact that only the allegation of the
existence of terrorism in Precincts Nos. 10, 10-A, 10-B and 6-A remains
to be substantiated, and evidence of the genuineness of the handwriting
on the disputed ballots, as we have previously said, would not be
necessary to prove the same, such order is justified.

Wherefore, the decision and order of the lower court appealed from
are hereby affirmed, with costs against the protestant-appellant. So
ordered.

Padilla, Bautista Angelo, Concepcion, Reyes, J. B. L., Paredes, and Dizon, JJ., concur.