ALEJANDRO SARMIENTO, PROTESTANT AND APPELLEE, VS. SERAFIN QUEMADO, PROTESTEE AND APPELLANT.

Appeal by Serafin Quemado from a decision of the Court of First Instance of Antique.

At the general elections held on November 17, 1959, the municipal
board of canvassers for the Municipality of Laua-an, Province of
Antique, proclaimed Serafin Quemado as the candidate elected for
Vice-Mayor of said municipality, with 1,155 votes, or a plurality of
one (1) vote, over his closet opponent for said office, Alejandro
Sarmiento, for whom 1,154 votes had been cast, according to the canvass
made by said board. In due time, Sarmiento filed the corresponding
election protest with the Court of First Instance of Antique, which
after appropriate proceeding, rendered a decision holding that
Sarmiento had obtained 1,148 votes, as against 1,146 votes for Quemado,
and accordingly, declaring Sarmiento elected with a plurality of two
(2) votes over Quemado. On motions for reconsideration filed by both
parties, said court amended its decision by reducing the votes for
Sarmiento, and, hence, his plurality over Quemado, by one (1) vote, but
affirming the original decision in all other respects. Hence, this
appeal by Quemado, which has been given due course, despite the
provision of Section 178 of the Revised Election Code, pursuant to
which the decisions of courts of first instance in election protests
affecting the offices of vice-mayor and municipal councilors of regular
municipalities shall not be appealable, in view of the constitutional
mandate to the effect that the Supreme Court may not be deprived of its
jurisdiction to review, reverse, modify or affirm on appeal, certiorari
or writ of error, final judgments and decrees of inferior courts in all
cases in which an error or question of law is involved (Calano vs. Cruz, 50 Off. Gaz., 610).

Both parties have made in their briefs their respective assignments of error.

Assignments of Error of Quemado.

1. Quemado maintains that the ballots Exhibits S-2, S-35,
   S-51, S-77 and S-82, should have not been counted for Sarmiento,
   because they are marked, for in

It is urged by Quemado that the words “Siro”, “gao”, “Jwan”,
“Strong” and “peang” are impertinent and irrelevant expressions having
no other possible purpose than to identify these ballots, but the lower
court held otherwise, and we think, correctly, there being no evidence
aliunde or other fact clearly indicating the intent of the voter.

1. It id similarly contended that Exhibits S-37,
   S-47, S-50, S-62, S-65, S-76 and S-81 should have been nullified as
   marked and should not have been counted for Sarmiento, because in:

It is further urged that one Felix Nunieza, a prominent political
leader in the Arrabal of Cuisijan, where Exhibits S-50, S-65, S-76 and
S-81 were cast, was the person alluded to by the voters who prepared
said ballots and wrote thereon the names “Feliz”, “Felix”, “Felix” and
“Piles”, for the purpose of identifying the same. For the reasons
stated in connection with Quemado’s first assignment of error, we find
that the lower court was justified in rejecting such pretense.

1. “Written-by-two-hands” is Quemado’s objection to
   Exhibits S-3, S-15, S-31, S-4G, S-46, S-64 and ‘SW79-, which, he,
   accordingly, maintains, should not have been counted for Sarmiento.
   Upon examination of these ballots we hold that this pretense is
   untenable.

2. It is next urged that the name
   written on the space for vice-mayor in Exhibits S-20, S-41, S-71, S-83
   and S-S6, which were counted for Sarmiento, is illegible, and that the
   names on the spaces for mayor and vice-mayor in S-41 had been, written
   by a hand other than that which had filled the rest of the ballot. The
   lower court was right in holding that Sarmiento was voted for
   vice-mayor in said ballots and that S-41 had been filled by only one
   hand.

3. Qr-9, in which Quemado appears
   voted for vice-mayor, was annulled by the lower court as a marked
   -ballot, because the numbers “3”, “4” and “5” in the corresponding
   spaces for senators were crossed out and the numerals “4”, “5” “7” and “6”
   respectively were written after the aforesaid numbers, before filling
   the names of candidates voted for. We agree with Quemado that the lower
   court erred in holding -that this ballot is marked. The poor penmanship
   of the voter clearly indicates his humble condition and suggests
   strongly that he may have deemed it necessary to reproduce the numbers
   appearing in the tickets or sample ballots which are commonly used in
   rural areas. This vote should be counted for Quemado.

4. The
   lower court, likewise, annulled Exhibit Q- 20, as written by two-hands.
   We are not satisfied, from the appearance of the ballot, that the
   conclusion reached by the lower court is correct. Quemado appears
   therein voted for vice-mayor, and should be credited this additional
   vote.

5. Exhibits Q-23 and Q-84 were in the
   opinion of the lower court written by only one hand, and, hence, were
   annulled. We agree with this view.

6. The
   vote for vice-mayor in Exhibit Q-24, which, Quemado claims, should have
   been counted in his favor, was found by the lower court to be
   illegible, and, we think correctly.

7. Because
   the respective voters had written “Borja Borja” in the second space for
   senators in Exhibit Q-57, “Pajo Pajo” in the first space for senators
   in Exhibit Q-58, and “Eca Pilaez Pilaez” in the last space for senators
   in Exhibit Q-62, these three ballots were annulled in the decision
   appealed from as marked. A majority of the members of this Court feel
   that the action taken by His Honor, the trial Judge, should be
   reversed, for there is no evidence, aliunde of the intent to identify
   the ballots and such intent is not manifest on the face thereof.

8. Exhibits Q-63, Q-64, Q-65 and Q-66 were annulled by the lower court as marked, because, in the language of the lower court:

“All of these ballots were cast in precinct No. 4-A.
(In each of them the name of one candidate for senator is clearly and
markedly indented to the right as to render the ballot easily
distinguishable.”

We are fully in accord with this conclusion.

Assignments of Error of Protestant Sarmiento.

1. The respective voters voted for vice-mayor, in Exhibit
   S-19, “A Ianoito”, in Exhibit 45, “Saumeroo”, and in Exhibit 88 “Sar”.
   Sarmiento claimed these ballots as votes in his favor, but the lower
   court rejected correctly his pretense.

2. Exhibits S-5 and S-6 were annulled by the lower court upon the ground
   that both had been prepared by one and the same hand. Sarmiento
   maintains otherwise, but his contention is refuted by the identical
   handwriting appearing in these ballots.

3. In
   Exhibit S-87, “Nietes”—a candidate for mayor-was written after the
   printed word “vice-mayor”. Immediately following the printed term
   “councilors” and at the same level thereof—but not in the space for
   councilors—the voter wrote “Sarmiento”. Below the same, in the space
   for councilors he wrote the names of the persons voted therefor.
   Sarmiento maintains that this vote should have been credited to him/
   inasmuch as the votes for mayor and vice-mayor had obviously been
   displaced, and his name is not in the space for councilors. This
   contention would have been tenable had the space for vice-mayor been
   left Wank, but the name of Nietes is written thereon and, hence, there
   is no means by which to justify its being counted as a vote in favor of
   Sarmiento, for said office.

4. The lower
   court nullified Exhibits S-10 and S-12, in both of which the vote for
   mayor is “J. Nietes Nietes”, as marked ballots. The person who prepared
   these ballots—unlike those who prepared Exhibits Q-57, Q-58 and
   Q-62—appear to be well educated, judging from their good penmanship.
   They could have had no possible reason to write “Nietes” twice, except
   to mark their respective ballots.

5. Likewise,
   annulled as marked were Exhibits S-61— in which the voter wrote “Norito
   Samsona Bingador” and “R. Songcayawan box people no fault”, in the
   fourth and eighth spaces respectively for senators—and S-75, in which
   the phrase “seven Thrills” appears on the last space for councilors.
   These ballots are clearly marked.

6. The
   persons voted for vice-mayor in Exhibits Q-22 and Q-7 are “S. Amado”
   and “Sirapin”, respectively. “S. Amado” was counted for Quemado under
   the indem sonams rule and, correctly, considering that the proper initial of his Christian name was written by the voter. “Serafin” is, likewise, idem sonams with
   “Serafin”, which is Quemado’s Christian name, and which no other
   candidate for vice-mayor is claimed to have. Both ballots were properly
   counted for Quemado.

7. In Exhibit Q-19, “S.
   Quemado” was written slightly under the space for vice-mayor, but
   outside the space for other officers. It was properly credited by the
   lower court to Quemado as candidate for vice-mayor.

In Exhibit Q-39, the vote for vice-mayor was similarly written in
the space between the printed words “vice-mayor” and “councilors”. The
name written can be read as “Quemadu””, although it may at first appear
as “Auema-du” or “Auemodu”, due to the imperfection in the writing of
the first letter. This ballot was, also, correctly credited to Quemado.

1. In Exhibit Q-80, the voter wrote, in the space
   for Provincial Vice-Governor, “Mayog Magluyan” and in the spaces for
   members of the provincial board:

The lower court correctly counted this ballot as a vote for Quemado
for vice-mayor, despite the fact that his name appears in the space for
the provincial board, not only because his name is preceded by the
prefix “visi” meaning “vice”, but, also, because in the space
immediately preceding the voter wrote “Mayog Magluyan”, thereby
indicating that the later was a vote for “mayor” and that the name
immediately following the same was intended for the “vice-mayor”.

1. Sarmiento maintains that Exhibits Q-8 and Q-38
   have each been prepared by two-hands, but the lower court did not think
   so, and neither do we.

2. It is lastly urged by Sarmiento that Exhibits Q-10, Q-42, Q-49 and Q-51 are marked, because the following appear on:

The lower court did not err in rejecting Sarmiento’s pretense. The
facts relied upon by Sarmiento are not sufficient to show the intent of
the voter to mark his ballot, apart from the fact that “the use of two
or more kinds of writings * * * shall be considered innocent and shall
not invalidate the ballot”, pursuant to Article 149 (18) of the Revised
Election Code (Republic Act 180), “unless it should clearly appear that
they have been deliberately put by the voter to serve as identification
marks” and such is not the case before us.

Recapitulating, we should add to the 1,146 votes credited by the
lower court to Serafin Quemado five (5) votes, namely those cast for
him in Exhibits Q-9, Q-20, Q-57, Q-58 and Q-62, thereby giving him a
total of 1,151 votes, as against 1,147 obtained by Sarmiento, for which
reason protestee Serafin Quemado is hereby declared elected for
vice-mayor of Laua-an, with a plurality of four (4) votes over
protestant Alejandro Sarmiento and the decision appealed from is,
accordingly, reversed, with costs against said protestant. It is so
ordered.

Padilla, Bautista Angelo, Barrera, Dizon, Regala and Makalintal, JJ., concur.