G.R. No. L-23827. February 28, 1967
SANTIAGO A. SILVERIO, PROTESTANT-APPELLEE, VS. PEDRO CASTRO (DECEASED), PROTESTEE-APPELLANT, MISAEL CLAMOR, INTERVENOR-APPELLANT.
BENGZON, J.P., J.:
The returns of the November 12, 1963 election for Mayor of Cateel municipality, Davao
province, per canvass of the Board of Canvassers showed that Pedro Castro received
the highest number of votes for said office, 1,769; Santiago Silverio obtained the next highest votes therefor, 1,754; thus giving Castro a plurality of 15
votes. And in due time Castro was
proclaimed elected and assumed the office.
Silverio, on the other hand, filed on
November 23, 1963 a protest in the Court of First Instance. A counter-protest was filed by Castro.
Subsequently and before hearing of the said election case, Castro
died on May 6, 1964. Vice Mayor Misael Clamor thereupon succeeded to the office of Mayor.
The protest was thereafter heard, starting on July 6, 1964. After hearing, on September 14, 1964,
decision was handed down by the trial court, reversing the Board of Canvassers
and declaring Silverio winner by seven (7) votes;
that is, Silverio was credited with 1,740 votes;
Castro, with 1,733 votes.
Appeal was taken therefrom on behalf of
protestee Castro (deceased) directly to Us, to raise
questions purely of law. A dispute
later arose as to the personality of protestee’s
counsel to take an appeal, Castro having died.
This Court resolved the matter by requiring Vice-Mayor Clamor to
intervene, as he did, on the side of appellant (Resolution of July 22, 1965).
Appellant presents for review 119 ballots. For our purposes they shall be discussed
under four groups:
FIRST GROUP: SEVENTY-ONE
(71) BALLOTS FOR SILVERIO; SPACES FOR SENATORS AND/OR COUNCILORS NOT FILLED OR
FILLED ONLY PARTLY; RULED VALID BY CFI.
Said 71 ballots are as follows:
|
|||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
||
|
|||
|
|
||
|
|
||
|
|
||
|
|
||
|
|
||
|
|
||
|
|||
|
|||
|
|||
|
|||
|
|
||
|
|
||
|
|
||
|
|
||
|
|
||
|
|||
|
|
||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
||
|
|
||
|
|
||
As to this first group of ballots, the court a quo
incurred no error. It properly followed
the rule that desistance from completely filling the spaces in the ballot does
not render the ballot marked (Gadon v. Gadon, G.R. No. L-20015, November 30, 1963). For here there admittedly is no evidence aliunde of a purpose to identify the ballots
through said means, nor is said purpose clearly discernible upon the face of
said ballots.
Summary of First Group:
CFI affirmed.
SECOND GROUP: TWENTY-THREE
(23) BALLOTS, SUBDIVIDED INTO (A) FIFTEEN (15) FOR CASTRO, REJECTED BY CFI AS
MARKED; and (B) EIGHT (8) FOR SILVERIO, RULED VALID BY CFI; PREFIXES, NICKNAMES
AND DESCRIPTIONS OF CANDIDATES ARE INVOLVED.
Subgroup A – Fifteen (15) ballots for Castro rejected by
the CFI.[1]
1.
From Precinct 1, ballot A-14. It has the word “Egg” written
before the candidate’s name “Castro” in the space for mayor.
2.
From Precinct 6, ballot E-3. It has the word “Toli”
before the candidate’s name “Peñaueva” in
the space for councilor.
3.
From Precinct 16, ballot I. It has the word “Egg” before the
name of candidate “Castro” in the space for mayor.
4.
From Precinct 16, ballot I-11. It has the name “(Catigbak)”
between the candidate’s name for councilor, thus: “Consing (Catigbak) Aguilon“.
5.
From Precinct 18 ballot J-1. It has the word “Pudpud”
before name of “P. de la Cruz” in space for councilor.
6.
From Precinct 18, ballot J-5. It has the word “Pudpud”
before the name “de la Cruz” for councilor.
7.
From Precinct 18, ballot J-16. It has the word “Dr.” in the space
for mayor before the name of candidate “Castro”, who is not a doctor.
8.
From Precinct 24, ballot 0-3. It has the figure “5” before the
name “Castro” for mayor.
9.
From Precinct 24, ballot 0-7. It has the word “Salokot”
before name of candidate “Castro” in space for mayor.
10.
From Precinct 24, ballot 0-24. The word “Jr.” appears after the
name “P. Castro” for mayor.
Castro is not a Jr. and the word “Jr.” is placed far after the
name.
11.
From Precinct 24, ballot 0-31. It has the word “Dato”
or “Datu” before the name of candidate Sarmiento in the space for governor.
12.
From Precinct 24, ballot 0-34. It has “Dr.” written before
“Castro” in the space for mayor.
13.
From Precinct 24, ballot 0-43. It has “Dr.” written before the
name “Castro” in the space for mayor; and the nickname
“Ely” appears before the name of candidate “Sarmiento“,
whose nickname is not Ely, in the space for governor.
14.
From Precinct 25, ballot P-4. It has the word “Towang”
before the name of candidate “Castro” for mayor.
15.
From Precinct 25, ballot P-18. It has “C Vote” appearing before
the name “Castro” in the space for mayor.
With the exception of ballot 0-31 (“Datu”
Sarmiento), all of the above fifteen ballots are
indeed filled with identifying marks.
The words “Egg”, “Toli“,
“Pudpud“, “Salokot”, “Towang” and “C Vote” are obviously for purposes
of marking the ballots.
So is the word “Dr.”, applied to protestee
Castro, who is not a doctor, twice in one precinct and once in another. Altho Rule 5, Sec.
149, Rev. Election Code allows the prefix “Dr.”, it has been held by
Us that it is allowed only if not used as identification marks; where, as
herein, it recurs in a pattern or system to mark and identify ballots and votes
in different precincts, the court a quo incurs no error in
rejecting them (Jimenez v. Lofranco, G.R. No.
L-21124, Nov. 8, 1963).
The figure “5” in ballot 0-3 is not an accidental
stroke for in the same ballot, there appears the figure “7” before
the name “Sarmiento” in the space for governor. It is therefore rightly deemed marked.
The placing of “(Catigbak)”
in the middle of the name of candidate “Consing Aguilon“, although allegedly denoting that to the
voter’s mind Consing Aguilon
is Senator Katigbak’s counterpart in Cateel, clearly serves to identify said particular ballot,
so that the intent to mark can be inferred therefrom.
And the suffix “Jr.” as applied to Castro in ballot
0-24 is patently used as a means to identify the voter, it being written so
far from the name “P. Castro” that the space separating them is
longer than the space covered by the name itself. As such it is marked (Rule 9, Sec. 149, Rev.
Election Code).
As to the word “Datu” before
the name of candidate Sarmiento, however, which
appears in but one ballot, the same is not clearly a sign for marking, and said
ballot should be accepted as valid. As
this court ruled in Gadon v. Gadon, G.R. No. L-20015, November 30, 1960, pursuant to
Rule 5 of Section 149, Rev. Election Code, which mentions “Datu” among the prefixes allowed, the use of the
prefix “Datu” does not invalidate the
ballot where there is no discernible pattern in the use of such prefix which
would reveal an intention to mark the ballots.
Subgroup B. Eight
(8) ballots for Silverio ruled valid by the CFI:[2]
1. From
Precinct 19, ballot 11-U. It has the
word “Conoyaes” [or “Conozaes”]
in the space for councilor.
2. From
Precinct 10, ballot C-13 cp. It has the
nickname “Oto” after the name of candidate
“Manligoy” in the space for councilor.
3. From
Precinct 11, ballot I-3 cp. It has the
word “Atty.” before the name of candidate “P. Sanico” for councilor.
4. From
Precinct 11, ballot 17 cp. This ballot
is not discussed by appellant and is not found among the ballots forwarded to
Us.
5. From
Precinct 14, ballot E-1 cp. It has the
nickname “Titoy” before the name “Juanillo” in a vote for councilor.
6. From
Precinct 18, ballot G-3 cp. It has the
nickname “Mano” before the name “Silverio” for mayor.
7. From
Precinct 23, ballot 14. It has the word
“Vice” before the name of candidate “M. Clamor” in the
space for vice-mayor.
8. From
Precinct 25, ballot 16-C. It has the
nickname “Bobby” before the name “Silverio”
for mayor.
In the above ballots, the nicknames “Oto“,
“Titoy“, “Mano”
and “Bobby” were manifested to be the nicknames of the persons voted
for.[3]
In the absence of clear and convincing proof that these nicknames were used to
identify the voters, the rule is that the use of nicknames of the candidates,
accompanied by their name or surname, does not annul the ballot (Rule 9, Sec.
149, Rev. Election Code).
As to “Conoyaes” [or “Conozaes”] appearing in the space for councilor, the same
is, as the court a quo pointed out, idem sonans for Gonzales, a candidate for councilor. It is a vote for Gonzales, not a mark.
“Atty.” before “P. Sanico”
is not a mark, it appearing that P. Sanico is a
lawyer.[4]
And “Vice” before “Clamor” simply describes
the office for which he was being voted for, namely vice-mayor; this alone
does not suffice to constitute marking and invalidate the ballot.
All of the eight ballots in this subgroup, therefore, were
correctly held valid for candidate Silverio.
Summary of Second Group:
CFI affirmed except as to one (1) ballot in subgroup A (ballot 0-31:
“Datu” Sarmiento),
for Castro, rejected by CFI but held valid by Us.
THIRD GROUP: ELEVEN (11)
BALLOTS FOR CASTRO; REJECTED BY CFI UPON CONCLUSION THAT SEVERAL BALLOTS WERE
PREPARED BY ONE PERSON.
According to the court a quo, ballots A-1, A-3, and
A-10 (Precinct 1) were written by one and the same person, and, in support of
said conclusion, it stated that they have “the same general appearance or
pictorial effect”; although finding that there are differences and
variations in them, it ruled that the same are due to the intention of the
writer to disguise the writings and make it different from his standard
writing.
Following the same principles applied to the above ballots, the
court a quo further held that ballots A-4 and A-5 (Precinct 1)
were prepared by one person; ballots C-1 and C-3 (Precinct 4), by one person;
ballots C-4 and C-6 (Precinct 4), by one person; and ballots C-7 and C-8 (Precinct
4), by one person.
The point to bear in mind is that this involves rules of
appreciation of ballots in an election case.
And the purpose of election laws is to give effect rather than frustrate
the will of the voter. Thus, extreme
caution should be observed before any ballot is invalidated and in the
appreciation of ballots, doubts are to be resolved in favor of their validity.[5]
Now the court a quo invalidated the above eleven
ballots, as mentioned, upon the principle of general appearance or pictorial
effect. Yet the very authority referred
to and quoted by said court stated that said general resemblance is not enough
to warrant the conclusion that two writings are by the same hand (Appendix,
Appellant’s brief, 42-43):
“In order to reach the conclusion that two writings are by the
same hand there must not only be present class characteristics but also
individual characteristics or ‘dents and scratches’, in sufficient quantity to
exclude the theory of accidental coincidence; to reach the conclusion that
writings are by different hands we may find numerous illnesses in class
characteristics but divergences in individual characteristics, or we may find
divergences in both, but the divergence must be something more than mere
superficial differences. (Osborn’s
Questioned Documents, p. 244).” [Underscoring supplied]
Another eminent authority on the subject, Wilson R. Harrison, on
SUSPECT DOCUMENTS, has this to say:
“In spite of the fact that the
handwriting of any individual is based on a number of master patterns
governing letter design, which are present substantially unaltered in all
specimens of his writing, some of these specimens may at first sight appear to
have little in common. On the other
hand, the handwritings of different people may appear to bear a marked
resemblance to each other, although, on analysis of the structure, the
master patterns can be shown to be quite distinctive and unlikely to be
confused. In view of this, the question
may well be asked why this should be so, and why the general appearance of
a handwriting is little guide to its fundamental structure.
“The answer to such questions is simple, and is bound up with
the way in which a great many people accomplish the reading process.” (P.
307; underscoring supplied.)
The court a quo, as mentioned earlier, noted differences
and variations in the ballots concerned, but attributed them to attempt by the
writer to disguise his hand. Applying
some principles on the recognition of disguise in handwriting,[6]
We are of the view that an examination of the ballots in question do not show,
beyond the doubts that are to be resolved in favor of their validity in
election cases, common authorship as to each respective set.
Says Harrison, op. cit.:
“x x x The rule
is simple – whatever features two specimens of handwriting may have in common,
they cannot be considered to be of common authorship if they display but a
single consistent dissimilarity in any feature which is fundamental to the
structure of the handwriting, and whose presence is not capable of reasonable
explanation.”
“(2) Disguised Handwriting Exhibits Less Fluency
and Poorer Rhythm than the Normal Hand
“By definition, it follows that it is the “normal”
hand in which any writer has become most practised
and in which he has had the greatest opportunity to become fluent; there cannot
be anything like the same fluency and rhythm associated with a hand which is
written deliberately in any style to which the writer has not become
accustomed. A handwriting can exhibit
its best rhythm only when it has been executed to a great part as a reflex
movement, without conscious thought having to be given to the details of its
structure. x x
x“
“(7) Disguise is Rarely Consistent
“With the obvious exception of the use of the unaccustomed
hand, few forms of disguise are consistently retained throughout the whole of
an extended passage of handwriting.
Apart from the relaxation of the disguise, which is usually
characteristic of the latter part of a passage and which is due to the writer
becoming tired, with the consequent loss of concentration, certain portions of
a disguised document can be counted on as having been much less thoroughly
disguised than others.” (Pp. 343, 352 & 369)
In ballots A-1, A-3 and A-10, the capital “R’s”,
“P’s” and “B’s” are different in every ballot but
consistently the same within each of them.
The fundamental structure of the small letter “t” (E.g.,
the “t” in Castro) are different in all three ballots, again
consistently the same within each ballot.
Furthermore, the writings are all done with fluency and rhythm, which
would not be the case if they were that of one person trying to disguise his
handwriting.
In ballots A-4 and A-5 the capital “R’s” are very
different in the two ballots but the same within each ballot; and the capital
“P” – a letter structurally related to capital “R” –
partakes of said difference, that is, it conforms to the structure of the
capital “R” as often as it appears in the respective ballots. Said internal consistency points against the
introduction of disguise. For as Harrison
further observed:
“x x x From this it appears that any developed handwriting in
its normal state can be expected to exhibit a marked degree of internal
consistency. This is of fundamental
importance when considering the problem posed by disguised handwriting, for it
implies that if the internal consistency of the handwriting is to be
preserved, any appreciable alteration in the design of one letter must be
accompanied by a corresponding change in the design of structurally related
letters. This will impose a severe
restriction on both the nature and the extent of any disguise which can be
introduced into the letter designs without its presence becoming patent.”
(P. 359)
Similarly, there are in these two ballots fluency and rhythm,
favoring the view that their differences – conceded by the court a quo
– are due to differences in authorship rather than disguise.
Anent ballots C-1 and C-3, the same observation as to capital
letters “P” and “R” previously made are also applicable
herein.
Regarding ballots C-4 and C-6, the “ñ’s”
are consistently different in the two ballots but uniform within each; the
final strokes in ending letters such as “g” and “y” are
different; and again the fluency that appears in both writings bears against
presence of disguise.
Finally, in ballots C-7 and C-8 the small letter “g” is
structurally different, in the loop, which difference is maintained throughout
in the respective ballot (Cf. “Bendigo“; “Aguilon“; “Ziga”
and “Liwag“). This singular consistent dissimilarity, as
above-stated, practically rules out disguise, in the absence of reasonable explanation.
In the foregoing eleven ballots, therefore, the court a quo
erred in not applying the rule of liberality in the appreciation of the
ballots, and in arriving at the conclusion that said ballots are invalid upon
the unacceptable premise that general appearance or pictorial effect is a
reliable index of handwriting identity.
Said error, involving as it does a conclusion – drawn from
undisputed facts (the appearance of the ballots) as well as the applicability
of a fundamental rule in appreciation of ballots, is one of law and thus reversible
herein.
Summary of Third Group:
Reverse CFI as to all eleven (11) ballots.
FOURTH GROUP: FOURTEEN
(14) BALLOTS: NON-CANDIDATES,
CORRECTIONS AND ERASURES, OTHER FEATURES.
A. Five (5) ballots with
non-candidates voted for, or with a candidate’s name in space for office not
run for by him; ruled by CFI valid for Silverio.
1. From
Precinct 3, ballot A-cp. It has “Diocno” in space for councilor.
2. From
Precinct 3, ballot A-2 cp. It has
“P. Sanico” in space for senator.
3. From
Precinct 5, ballot 4-D.[7] It
has “Porras” in space for senator.
4. From
Precinct 8, ballot 7-H. It has
“Palma Hill” [Gil] in space for senator.
5. From
Precinct 24, ballot 15-C. It has “Doterte” in space for senator.
As ruled by this Court in Tajanlangit
v. Cazeñas, G.R. No. L-18894, June 30, 1962, a vote for a non-candidate of the
respective office is to be deemed merely a stray vote and not a sign of marking
in the absence, as herein, of evidence aliunde
to the contrary. (Cf., also, Rule
13, Sec. 149, Rev. Election Code)
B. Five (5) ballots with
corrections or erasures; ruled by CFI valid for Silverio.
1. From
Precinct 3, ballot A-5 cp. “Silverio” in
space for councilor is crossed out by two horizontal lines drawn across the
name; “Silverio” appears, without cancellation,
in the proper space for mayor.
2. From
Precinct 8, ballot 7-E. “M Clamor” in space for councilor is
cancelled by horizontal lines drawn across it; “M Clamor” appears, uncancelled, in proper space for vice-mayor.
3. From
Precinct 16, ballot 9-E. In the space
for councilor, preceding the name “Ravelo”
are heavy circular strokes cancelling initials.
4. From
Precinct 19, ballot 11-S. “Santiago Silverio”
in the space for governor is crossed out by horizontal lines and several
“x’s“; above it is written “Sarmiento“.
5. From
Precinct 19, ballot 11-T. In the space
for governor, “Duterte” is cancelled by two
“x’s” but again after it is written “Duterty“.
The above erasures and cancellation are plainly corrections of
errors, not evidencing any purpose of marking.
Neither is there evidence aliunde to
establish a design to mark thereby. The
court a quo rightly considered these ballots valid (Rule 4, Sec.
149, Rev. Election Code; Protacio v. De Leon, G.R.
No. L-21135, Nov. 8, 1963).
C. Four (4) ballots with
other features.
1. From Precinct 4, ballot
C-10. It is for Castro, rejected by the
CFI as marked because all the names voted for therein are in very large block
letters.
An examination of said ballot reveals nothing irregular to
constitute marking; the size of the writing -maintained uniformly throughout –
simply conforms to the space provided for in the ballot itself. This differs from the case in Tajanlangit v. Cazeñas, G.R. No.
L-18894, June 30, 1962, where only two names were written in extraordinarily
big printed letters so that they stood out prominently compared with the rest
of the names written in the ballot. In
the present case, the writing could well be the voter’s habitual one, there
being no evidence to show otherwise.
Said ballot was erroneously deemed marked.
2. From Precinct 7, ballot
6-G. In the space for mayor, it has a
small “x” written to the left of “Silverio”
and another small “x” written after said name, towards the end of
the line. Said ballot was held valid by
the CFI.
The placement of said two “x’s“,
viewing the ballot as a whole, which is otherwise neat and filled only with few
names, indicates upon its face a clear intent to mark. Said ballot should have been rejected as
invalid.
3. From Precinct 16, ballot
9. It has the letter “x”
(apparently in capital) before the name “Penanueva”
for councilor. Said ballot was held
valid by CFI for Silverio; and We agree, since the
letter “x” as used was meant only to be an initial, as shown by the
use of initials throughout the other seven names voted for councilor.
4. From Precinct 18, ballot
10-E. It has votes written in ordinary
script and others in block letters. It
was held valid for Silverio by the CFI. No error was committed herein. Rule 18, Sec. 149, Rev. Election Code allows
such variation in writing in the absence of evidence aliunde
to prove design thereby to identify the voter, and there is none herein (Sarmiento v. Quemado, L-18027,
June 29, 1962).
Summary of Fourth Group:
Reverse CFI as to two (2) ballots, C-10 and 6-G.
In view of the foregoing, therefore, We find that the court a
quo erred in rejecting the following thirteen (13) ballots for Castro,
which We find valid:
Second Group. –
1. Precinct 24, Ballot 0-31
(“Datu” Sarmiento)
Third Group. – (Re question of common authorship)
|
2. |
8. Precinct 4, Ballot C-3 |
|
3. “ 1, |
9. |
|
4. “ 1, A-10 |
10. |
|
5. “ 1, “ |
11. |
|
6. “ |
12. |
|
7. “ 4, “ |
|
Fourth Group. –
13. Precinct 4, Ballot C-10 (large letters) and further
erred in accepting as valid one (1) ballot for Silverio,
which We find to be marked and should thus have been rejected:
1. Precinct 7, Ballot 6-G
(“x Silverio x”)
Adding, therefore, thirteen (13) votes to Castro and deducting
one vote from Silverio, We have:
CFI
Finding As Reviewed Final Counting by Us
Silverio 1,740 – 1 = 1,739
Castro 1,733 + 13 = 1,746
so that Castro emerges as final winner by
a plurality of seven (7) votes over Silverio.
WHEREFORE, the judgment appealed from is hereby reversed
and protestee Castro, whose interest is succeeded to
and represented herein by intervenor-appellant
Clamor, is declared winner by a plurality of seven (7) votes in the election of
mayor of Cateel, Davao on
November 12, 1963. No costs.
SO ORDERED.
Concepcion, C.J., Reyes, J.B.L., Dizon, Regala, Makalintal, Zaldivar, Sanchez, and Castro, JJ., concur.
[1]
All discussed under Assignment of Error No. 5.
[2]
The first six ballots are treated under Assignment of Error No. 6; the other
two under Assignment of Error No. 7.
[3] Tsn., pp. 645, 676-677 and 716.
[4] Tsn., p. 735.
[5] Amurao v. Calangi, G.R.
No. L-12631, Aug. 22, 1958;
Pangontao v. Alunan,
G.R. No. L-18926, Nov. 30, 1962.
[6] See
Harrison, SUSPECT DOCUMENTS, pp. 350-372.
[7]
Based on allegation because ballot not forwarded to Us.