ASUNCION CONUI-OMEGA, PROTESTANT AND APPELLEE, VS. CESAR SAMSON, PROTESTEE AND APPELLANT.

Mrs. Asuncion Conui-Omega and Dr. Cesar Samson were both candidates
for the position of councilor in the City of Ormoc in the general
elections held on November 10, 1959. After the canvass of the votes
made by the city board of canvassers on November 23, 1959, the result
showed that Samson had garnered enough votes to be proclaimed as the
last of the eight councilors composing the city council with a
plurality of three votes over his nearest opponent, Mrs. Asuncion
Conui-Omega. On the same date, Mrs. Conui-Omega filed with the Court of
First Instance of Leyte a petition for recounting in Precincts Nos. 17
and 28 of said city, which was later amended to include the votes cast
in Precint No. 8. The court gave due course to the petition and issued
an order enjoining the board of canvassers from further proceeding with
the canvass while it ordered the board to open the ballot boxes and
make a recount to determine the candidate duly elected.

Considering that the action taken was illegal, Samson instituted a
petition for certiorari and prohibition before the Supreme Court
wherein, after due hearing, it rendered decision setting aside the two
orders disputed in the case. The decision was promulgated on January
30, 1960, which became final and executory on February 19, 1960. During
the pendency, however, of the certiorari case, or more particularly on December 29, 1959, upon authority of the court a quo,
the city board of canvassers made a partial proclamation of the
councilors-elect on the basis of the statement of the result of the
election made on November 23, 1959, leaving unproclaimed the contested
eighth councilor-elect. After the partial proclamation, the city board
of canvassers adjourned sine die. The decision of the Supreme Court in the certiorari
case having become final, Dr. Cesar Samson was proclaimed as eighth
councilor-elect on June 2, 1960 by the board of canvassers composed not
of the previous members but of the newly elected councilors, together
with the other authorized city officials, by authority of the
Commission on Elections. And on the same date, Dr. Samson took his oath
and assumed office.

On June 14, 1960, Mrs. Asuncion Conui-Omega filed a motion of protest with the court a quo
contesting the election of Dr. Cesar Samson, which was amended on June
16, 1960. Summons was served on June 20, 1960, stating therein that protestee may file his answer within the period of 15 days. On June 28, 1960, the protestee,
instead of filing an answer, filed a motion to dismiss on the ground
that the protest was not filed within the 2-week period provided by
law. On July 15, 1960, protestant filed an opposition to the motion to
dismiss which was denied on the ground that it was filed beyond the
period of 5 days from service of summons. Protestee’s motion for reconsideration having been denied, he brought the case by certiorari to the Supreme Court which, motu proprio, dismissed it for lack of merit. Whereupon, on August 2, 1960, protestee filed his answer to the motion of protest.

After trial, the court a quo rendered decision declaring protestant the duly elected eighth councilor of Ormoc City with a plurality of 42 votes over the protestee, with costs against the latter. Protestee took steps to appeal from the decision, but because he failed to exert a bona fide effort
to correct his original property bond which he reduced without previous
authority of the court, the presiding judge dismissed his appeal and
declared the decision final and executory. But, having the protestee brought the case before the Court of Appeals on a petition for mandamus,
said Court ordered that the appeal be given due course. In the
meantime, on August 24, 1960, protestant took her oath of office as
councilor on the strength of the judgment rendered in her favor, and
the municipal board of Ormoc City approved a resolution recognizing her
as the eighth city councilor and admitted her as such in lieu of protestee.

The present appeal is now before this Court upon the certification of the Court of Appeals that the jurisdiction of the court a quo is one of the issues raised therein.

FIRST ASSIGNMENT OF ERROR

In this assignment of error protestee-appellant disputes the jurisdiction of the court a quo
over the protest on the ground that said protest was filed beyond the
2-week period from the promulgation of the result of the election as
provided for by law. He contends that the proclamation of the result of
the election was made by the board of canvassers on December 29, 1959,
which should be considered as the one contemplated by law for it
contains all the names of the candidates for councilors and the
respective votes garnered by each, including those of the protestant
and protestee, so much so that copies thereof were furnished all the
candidates and were posted in public places pursuant to law, and since
protestant-appellee filed her motion of protest only on June 14, 1960,
it is contended that the same was filed beyond the 2-week period
provided for by law.

It is true that under Section 174 of the Revised Election Code a
petition contesting the election of a municipal official-elect shall be
filed within two weeks after the proclamation of the result of the
election which period is mandatory in the sense that failure to observe
it will deprive the court of its jurisdiction over the contest, but
there is nothing in this case from which we may infer that the protest
was not filed within the aforesaid reglementary period considering that
there had been two proclamations made by the city board of canvassers.
Note that the first proclamation was made on the basis of the statement
of the result of the election made on November 23, 1959, following the
motion filed with the court a quo by said board of canvassers in view of the injunction issued by the court a quo
in connection with the petition for recount of the votes cast in some
precincts which was elevated to the Supreme Court on a petition for certiorari
as a result of which the order for recount was set aside in order not
to delay the proclamation of the seven councilors whose election was
not contested. In other words, the first proclamation made on December
29, 1959, was merely partial leaving aside that which refers to the
eighth councilor whose election was contested and was the subject of a
recount. But when the recount proceedings were nullified in the certiorari case
and the decision became final, the new city board of canvassers was
convened and there proceeded with the new canvass resulting in the
proclamation of protestee-appellant as the eighth duly elected
councilor upon the authority of the Commission on Elections. This
second proclamation took place on June 2, 1960, and since the same
merely concerned the protestee-appellant, it follows that the motion of
protest filed against him by the protestant-appellee on June 14, 1960,
is well within the period of two weeks prescribed by law. The peculiar
circumstances obtaining in this case cannot be given any other
inference or interpretation for to do so would make illusory the
protest of protestant-appellee. Certainly, she could not have filed any
protest before the proclamation of her opponent, which only took place
on June 2, 1960.

SECOND AND THIRD ASSIGNMENTS OF ERROR

These assignments of error have also no legal basis. The record
shows that appellant was served with summons on June 20, 1960, but
instead of filing an answer he filed a motion to dismiss on June 28,
1960, or 8 days from the service of summons. The law provides that the
protestee shall answer the protest within 5 days after service of
summons, or in case there is no summons, from the date of his
appearance, and in all cases before the commencement of the hearing.
Here a summons was duly served upon protestee and yet he failed to file
his answer within the period of five days. The court a quo,
therefore, was correct in declaring that protestee shall be deemed to
have entered a general denial. The law on this point is clear.

Appellant argues that he was given 15 days within which to file his
answer to the protest, but this is merely due to a mistake committed by
the clerk of court when he served upon protestee the ordinary form of
summons used in civil cases, which error cannot prevail over a specific
provision of the law. The provision to the effect that an answer must
be filed “in all cases before the commencement of the hearing of the
protest” only means that no answer can be filed when the hearing of the
protest has started. It does not mean that, if there is summons, the
answer can be filed even beyond the period of five days.

FOURTH AND FIFTH ASSIGNMENTS OF ERROR

Appellant contends that the court a quo erred in
appreciating the legality or illegality of the ballots cast in his
favor in the precincts in question and in permitting appellee to
present in evidence the ballot cast in favor of appellant in said
precincts which the former failed to produce during the presentation of
her evidence in chief and after she had rested her case.

There are abundant authorities in this jurisdiction to the effect
that when there is an allegation in an election protest that would
require the perusal, examination, or revision of the ballots as
evidence, it is the duty of the court to order the opening of the
ballot ‘boxes involved if such is necessary to reach a correct
decision. And this is justified under the provisions of Section 175 of
the Revised Election Code, which are mandatory in nature.^[1]
Here, the motion of protest contains sufficient allegations to the
effect that frauds, errors and irregularities in the count and canvass
of the votes in the precincts in question had been committed, and as
long as they refer to the ballots involved in the contested precincts,
as in the case here, the trial court is justified in requiring the
production of said ballots even if the parties did not deem it
necessary to present them in evidence. The only limitation is when the
ballots are not involved in the protest. The court a quo did nothing contrary to the limitation of the law on the matter.

SIXTH ASSIGNMENT OF ERROR

Ballots Exhibits A-2 and G-8. These two ballots containing
the name “Conui” and “C. Conui” voted for in the proper space for
councilors, respectively, were counted by the lower court in favor of
Asuncion Conui-Omega under the rule that a ballot where only the
surname of the candidate appears is valid (Sec. 149, par. 1, Revised
Election Code). We agree with this ruling it appearing that there is no
dispute that “Conui” is the maiden surname of appellee. On the second
ballot, the initial “C” before “Conui” is the correct initial of
appellee’s nickname “Conching” (Gonzaga vs. Seno, G. R. No. L-20522, April 23, 1963). In the case of Ochoa vs.
Calo (46 Off. Gaz., 2657), it was held that the name “E. Rosales” was
valid vote for Elias Ochoa whose maiden name was Elias Rosales. These
two ballots were correctly counted for appellee.

SEVENTH ASSIGNMENT OF ERROR

Ballots Exhibits B-1, B-2, G-1, L-4, and L-8. These five
ballots cast in Precincts Nos. 12, 17-A and 57, were counted by the
lower court in favor of appellee notwithstanding the fact that only her
nickname “Conching” or Concing” appears on the ballot. In support of
its ruling, the lower court took into consideration the evidence that
appellee was familiarly known with such nickname invoking our ruling in
Abrea vs. Lloren (81 Phil., 809, October 28, 1948). However, in the case of Tajanlangit vs. Cazeñas (G.R. No. L-18894, June 30, 1963), we had occasion to explain the ratio decidendi
in the Lloren case regarding the use of nicknames in the sense that
where a nickname only is written, without being accompanied by the name
or surname of the candidate, the vote should not be given effect in
accordance with paragraph 9, Section 149, in connection with Section 34
of the Revised Election Code, which expressly provides that
certificates of candidacy shall not contain nicknames of candidates.
Following the doctrine laid down in the Tajanlangit case, therefore,
these five ballots where only the nickname” Conching” or Concing” was
written should be rejected and deducted from appellee.

EIGHTH ASSIGNMENT OF ERROR

Ballots Exhibits C-1, C-2, C-6, C-7, D, D-2, D-4 D-5, G-3, H-3, H-7, I-2, J-1, K-1, K-2, K-4, L-13 and L-14.
These eighteen ballots were admitted by the lower court as valid votes
for appellee. Appellant disagrees with such ruling. We have examined
each ballot and have reached the following findings:

Ballot Exhibit C-1. This ballot was prepared by a poor
writer. On line 5 for councilors, the word “Comga” may be read. The
writer might have intended the letter C as initial for appellee’s
middle name “Conui”, connected with the word “Omga” which might have
been intended for Omega. We agree with the lower court that the word
written by the voter falls under the rule of idem sonans and the vote is valid (Section 149, par. 2, Revised Election Code).

Ballot Exhibit C-2. Appellant contends that this ballot was
written by two different persons. On this we entertain serious doubt.
The superimposed writing on lines 2 to 6 for councilors was written
with heavier pen pressure and bigger letters but we believe that the
same was written by the same writer considering that the terminal
letter “a” in “Omega”, “Parella” and “Ocubilla” on lines 3, 6 and 8 for
councilors, respectively, has the same formation as the letter “a” in
“Cea” written on line 6 for senators. Resolving the doubt in favor of
the validity of the ballot, we agree with the lower court that this is
a good ballot for appellee.

Ballot Exhibit C-6. Again, appellant contends that this ballot was written by two different persons. The contention is without basis.

Ballot Exhibit C-7. The word written on line 3 for
councilors is “B. Omegas” and not “Bongas” as claimed by appellant.
This ballot was properly admitted for appellee under the rule of idem sonans. The erroneous initial “B” does not annul the vote in her favor (Section 149, paragraphs 2 and 6, Revised Election Code).

Ballot Exhibit D. This ballot was written by a poor writer,
but we can easily read on line 3 for councilors the word “C. Omuga”,
not “C. Moga” as appellant claims. We agree with the ruling that this
ballot is valid for appellee under the rule of idem sonans (Section 149, par. 2, Revised Election Code).

Ballot Exhibit D-2. Appellant contends that this ballot is
marked with erasures in the spaces for mayor and vice-mayor. The
contention is without merit because the erasures are innocent and
cannot be considered as mark (Section 149, par. 18, Revised Election
Code; Sayo vs. Paredes, ETHR Case No. 109, December 28, 1960). We sustain the ruling of the lower court.

Ballot Exhibit D-4. Appellant contends that this ballot
should be rejected as a marked ballot because of the name “N. Apas”
written on line 7 for councilors. The contention is untenable. The name
might have been intended for candidate Abas for councilor, or at most
can only be considered as a stray vote which does not invalidate the
whole ballot (Section 149, par. 13, Revised Election Code).

Ballot Exhibit D-5. Again, appellant contends that this is
a marked ballot because of the name “E. Comejos” written above the
crossed-out word “Conjios” on line 1 for councilors. The contention is
without merit. Evidently, the first word written “Conejios” was crossed
out to correct the spelling to “Conejos”. This name shall be counted as
a stray vote, Conejos being a candidate for mayor, but shall not
invalidate the whole ballot (Section 149, par. 13, Revised Election
Code).

Ballot Exhibit G-3. Appellant claims that the surname of
appellee on line 5 for councilors was traced under a carbon paper. The
claim is without basis. The name “Omega” was clearly written with
indelible pencil.

Ballot Exhibit H-3. Appellant contends that this is a
marked ballot, the mark consisting of writing the name “R. Mejia”, a
candidate for vice-mayor, on line 2 for senators, the name “Pelaez” on
line 4 for councilors, and because the names of some candidates for
councilors were written twice, one in the space for senators and
another in the space for councilors. Evidently, the voter made a
mistake in first writing the names of the local candidates in the
spaces for senators and writing again the names of his candidates for
councilors in the proper spaces. The law provides that when the name of
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 and the vote for the office for which he is not a candidate
shall be counted as stray vote but shall not invalidate the whole
ballot (Section 149, pars. 3 and 13, Revised Election Code). This
ballot was correctly admitted in favor of appellee.

Ballot Exhibit H-7. This ballot was counted as a valid vote for appellee under the rule of idem sonans.
However, we find that only the letters “ACM” were written on line 1 for
councilors. The most that we can say is that the first two letters
correspond to the initials of Asuncion Conui. The rule for the
appreciation of ballots provides that voting with initials only shall
not be valid (Section 149, par. 15, Revised Election Code). This ballot
should, therefore, be rejected and cannot be counted for appellee.

Ballot Exhibit I-2. Appellant contends that the name “M.
Enona” written opposite the printed word councilors renders this ballot
as marked. The lower court ruled that this ballot is valid because the
alleged mark might have been intended as a vote for M. Canopio, a
candidate for councilor. We agree with the ruling that this ballot is
valid for appellee who is voted for on line 2 for councilors.

Ballot Exhibit J-1. The vote for E. Conejos, a candidate
for mayor, appearing on the first line for councilors is a stray vote
but shall not invalidate the whole ballot” (Section 149, par. 13,
Revised Election Code). We agree with the ruling of the lower court
admitting this ballot in favor of appellee who was voted for on line 7
for councilors.

Ballot Exhibit K-1. The word “irion” written on the first
line for senators appears to be an attempt to write the name of a
candidate. It does not constitute a distinguishing mark. We agree with
the admission of this ballot in favor of appellee who was voted for on
line 3 for councilors.

Ballot Exhibit K-2. Appellant contends that this ballot
should not be counted in favor of appellee because the word “Ongo” is
more similar in sound to Pongos than Omega. An examination of the
ballot, however, shows that the vote “C. Omga” was written on line 2
for councilors. This ballot was correctly admitted by the lower court
in favor of appellee under the rule of idem sonans (Sec. 149, par. 2, Revised Election Code).

Ballot Exhibit K-4. The capital letter “N” written opposite
the printed word senators cannot be considered innocent for the voter
had no reason to write it in a place apart from the proper spaces for
senators. This ballot should, therefore, be considered marked and
should be deducted from appellee.

Ballot Exhibit L-13. This ballot was correctly admitted for
appellee who was voted for on line 3 for councilors as “Omega”. The
word “S. Moya” written on line 2 for councilors, which was alleged by
appellant as a mark, shall be counted as a stray vote but shall not
invalidate the whole ballot (Section 149, par. 13, Revised Election
Code.)

Ballot Exhibit L-14. Appellant alleges that the
unintelligible mark appearing below the printed word “Official Ballot”
invalidates this ballot as marked. However. an examination of the
ballot shows that the alleged identifying mark appears to have been
unintentional or accidental (Sec. 149, par. 18, Revised Election Code).
This ballot was properly admitted for appellee who was voted for on
line 4 for councilors.

NINTH ASSIGNMENT OF ERROR

Ballots Exhibits C-8 and C-9. These two ballots were
counted by the lower court in favor of appellee. However, appellant
contends that these ballots should “be rejected as marked for
containing the irrelevant and impertinent words “Sampion” after the
name T. Acuballo on line 8 for councilors in Exhibit C-8, and “Mabohay”
after the name F. Abas on line 7 for councilors in Exhibit C-9. We
agree with the ruling admitting these ballots for the reason that said
words may be considered merely as an expression of affection and
friendship allowed under the rules for the appreciation of ballots
(Sec. 149, par. 9, Revised Election Code). This Court has held that
such words as “Ariba” or “Caibigan” accompanying names of candidates do
not annul the ballot as marked (Delgado vs. Tiu, et al., 105 Phil., 835; Amurao vs. Calangi, et al., 104 Phil., 347.)

TENTH ASSIGNMENT OF ERROR

Ballots Exhibits V-148 and V-2. These two ballots were
rejected by the lower court as marked, stating that the word “Sinador”
on Exhibit V-148 and a figure “1” on Exhibit V-2, both appearing under
the printed words ” November 10, 1959″ are identifying marks. We agree
with regard to the word “Sinador” for the voter really had no reason to
write that word in a place far and separate from the proper spaces
prescribed for official candidates. The voter could not have had any
other intention than to mark that ballot. But we disagree with regard
to the figure “1” on Exhibit V-2 for the same appears to have been
merely accidentally placed therein by the voter. In the absence of
evidence aliunde that mark was deliberately placed, it shall
be considered innocent which cannot invalidate the ballot. This ballot
Exhibit V-2 should be counted in favor of appellant, but ballot Exhibit
V-148 was properly rejected.

ELEVENTH ASSIGNMENT OF ERROR

Ballot Exhibit V-6, V-97 and V-28. These three ballots cast
in favor of appellant were rejected by the lower court as marked on the
ground that prominent political figures, namely “Tan”, “Berting Osmeña”
and “Macapagal” who were not candidates for any office in that
election, were voted for therein, respectively. In support of its
ruling, the lower court cited the cases of Raymundo vs. De Ungria, (July 18, 1935, L.J., 918) and Balajadia vs.
Eusala (G. R. No. 42579, Jan. 28, 1935) wherein it was held that names
of prominent politicians voted for offices for which they are not
candidates should invariably be considered as marks sufficient to
invalidate the ballots.

However, in at least two recent cases, this Court has held that the
ruling in the above-cited cases “should now be considered abandoned or
not controlling in view of the fact that the law on which it was
predicated has already been modified by the present Revised Election
Code which expressly ordains that such kind of voting will not render
the ballot invalid.” (Jaucian vs. Callos, 104 Phil., 603; 55 Off. Gaz., 10394; Gutierrez vs.
Aquino, G. R. No. L-14252, Feb. 28, 1959). In the absence of clear
evidence that the names of the prominent politicians written on the
ballots were used as identifying marks, said names of non-candidates
shall be considered merely as stray votes which shall not invalidate
the ballots (Sec. 149, par. 13, Revised Election Code). These three
ballots should, therefore, be counted for appellant who was voted
thereon in the proper spaces for councilors.

TWELFTH ASSIGNMENT OF ERROR

Ballots Exhibits V-47, V-17, V-22, V-38, V-42, V-58, V-67, V-63,
V-79, V-86, V-51, V-118, V-119, V-125, V-154, V-163, V-165, V-172,
V-181, V-151, V-160, V-164, V-166, V-53 and V-29. All these twenty-five
ballots cast for the appellant were rejected by the lower court as
marked or illegal ballots. We have carefully examined all these ballots
and reached the following conclusions.

Ballot Exhibit V-47. The word “Tabonon” written on line 8
for councilors might have been intended as a vote for candidate
Tugonon. This ballot should be counted for appellant who was voted for
on line 4 for councilor.

Ballot Exhibit V-17. In the absence of evidence that the
word “Tacoc” written on line 7 for councilors was intended as an
identifying mark, the same shall be considered as a stray vote and
shall not invalidate the ballot. This ballot should be counted for
appellant.

Ballot Exhibit V-22. This ballot was prepared by a poor
writer. The alleged identifying marks found by the lower court are
merely an attempt of the voter to write the names of the candidates he
desired to vote. The word written on line 3 for councilors which was
read by the lower court as “Lansar” may be read as “Sansor” which might
have been intended for Samson. This vote should be counted for
appellant under the rule of idem sonans. The other word
appearing on line 5 for councilors which may be read as “tilanar” shall
be considered as a stray vote which does not invalidate the whole
ballot (Section 149, par. 13-, Revised Election Code).

Ballot Exhibit V-38. This ballot was rejected by the lower
court as marked with the word “Bangos”. An examination of the ballot,
however, shows that the word on line 4 for senators may be read as
“Bargas”, which might have been intended for senatorial candidate
Vargas. This ballot should be counted for appellant who was properly
voted for on line 5 for councilors.

Ballot Exhibit V-42. Again, the lower court rejected this
ballot on the strength of the words appearing on line 7 and 8 for
senators which may be read “Mcino” and “Basual”. In the absence of
evidence of that these words were used as identifying marks, the same
shall be counted as stray votes but shall not invalidate the whole
ballot (Sec. 149, par. 13, Revised Election Code.) This ballot should
be counted for appellant who was voted for on line 5 for councilors.

Ballots Exhibits V-58, V-67 and V-60. These three ballots were
rejected by the lower court on the ground that in each ballot the names
of the candidates for senators were written by a hand different from
the one that wrote the names of the candidates for mayor, vice-mayor
and councilors. We have carefully examined each ballot and found that
each ballot was prepared by only one voter considering the same
formation of letters, pen pressure, slant, rhythm of writing and
individual handwriting characteristics. All these three ballots should
be counted for appellant who was voted thereon for councilors.

Ballot Exhibit V-63. The alleged identifying mark found by
the court in invalidating this ballot is the word “Oray” written on
line 8 for senators. In the absence of evidence that the word was
intended as an identifying mark, the same shall be considered merely as
a stray vote which does not invalidate the whole ballot (Sec. 149, par.
13, Revised Election Code). This ballot should be counted for appellant
who was voted for councilor on line 2 thereof.

Ballot Exhibit V-79. This ballot was prepared by an
intelligent voter as shown by his good penmanship. The writing of the
words “Kid Morjon” which, as counsel for appellant admits, refer to “a
brand of canned fish”, indicates the intention of the voter to identify
this ballot with an impertinent, irrelevant and unnecessary expression.
(Caraecle vs. Del Rosario, 94 Phil., 308; 50 Off. Gaz., 571; Tabiana vs. Abordo, ETHR Case No. 111, September 22, 1961.) We, therefore, agree with the ruling invalidating this ballot as marked.

Ballot Exhibit V-86. The writing of the word “Afag” before
the name Laguitan in the space for mayor is not sufficient to
invalidate the ballot as marked. The word which refers to an
organization headed by candidate Laguitan may therefore be considered
merely as a qualifying circumstance. This ballot should be counted in
favor of appellant who was voted for on line 5 for councilors.

Ballot Exhibit V-51. In the absence of evidence that the
word “Lansac” on the first line for councilors was intended as an
identifying mark, the same shall be considered merely as a stray vote.
This ballot is good for appellant who was voted for on line 2 for
councilors.

Ballots Exhibits V-118 and V-119. The lower court anchored
its rejection of these two ballots on the fingerprint stains appearing
thereon. With regard to ballot Exhibit V-118 the finding is correct
because the voter really had no reason to place his fiingerprints on
said ballot if his intention is not to mark it. But the finding is not
correct with regard to ballot Exhibit V-119 for the stain appearing
thereon is not a fingerprint and appears to have been accidentally
placed. Ballot Exhibit V-119 should, therefore, be counted in favor of
appellant, but ballot Exhibit 118 should be considered as marked.

Ballots Exhibits V-125 and V-154. These ballots
were rejected on the ground that names of non-candidates appear to have
been voted thereon, namely, “Locio Casbon” on line 7 for senators in
Exhibit V-125 and “Benbenido Laurente”, “Nano Dejanio” and “Egnasio
Montenegro” on lines 3 to 5 on Exhibit V-154. In the absence of
evidence that these names were used as identifying marks, the same
shall be considered merely as stray votes (Section 149, par. 13,
Revised Election Code). These ballots should be counted for appellant.

Ballot Exhibit V-163. This ballot was prepared by a poor
writer. The alleged identifying marks appearing on line 3 for
councilors is merely an attempt to write the name of a candidate. This
ballot is good for appellant whose name may be read on line 2 for
councilors.

Ballot Exhibit V-165. We agree with the ruling of the lower
court declaring this ballot as invalid for containing the impertinent,
irrelevant and unnecessary expression “DRACULA, good for hanging day”
written on lines 7 and 8 for councilors. The writing of the same serves
no purpose other than to identify or mark the ballot (Caraecle vs. Del Rosario, supra).

Ballot Exhibit V-172. The word “Ala” written on the first
line for councilors is not sufficient to invalidate this ballot as
marked. The rules for the appreciation of ballots provide that the
first letters or syllables of names which the voter does not continue
shall be considered innocent and shall not invalidate the ballot (Sec.
149, par. 18, Revised Election Code). This ballot should be counted for
appellant.

Ballot Exhibit V-151. The word “Oki” written on line 7 for
councilors is not sufficient to invalidate this ballot as marked. After
voting for six candidates for councilors, the voter wrote “Oki”, which
merely indicates his desistance from voting further rather than a
desire to mark the ballot. In one case, we held that the words “Nothing
else” or “Wala na” similarly written in spaces on which the voter has
not voted were merely considered as signs indicating desistance from
voting (Sec. 149, par. 17, Revised Election Code; Gutierrez vs. Aquino, supra). This ballot should be counted for appellant.

Ballots Exhibits V-164, V-166 and V-181.
These ballots were rejected as marked the alleged marks consisting of
the word “Botax” on line 8 for councilors in Exhibit V-164; “Poyon” in
the space for mayor in Exhibit V-166; and “Balas” in the same space in
Exhibit V-181. In the absence of evidence that these words were used as
identifying marks, the same shall be considered merely as stray votes.
These three ballots should be counted in favor of appellant.

Ballots Exhibits V-53 and V-29. These two
ballots were rejected as marked with the name of a non-candidate
“Florentino Maquilan” written on line 8 for councilors in Exhibit V-53
and the initials on the same line on Exhibit V-29. In the absence of
evidence aliunde, the writing of the name “Florentino Maquilan” should
be considered merely as stray vote, but the initials “F.M.” shall be
considered as marked for there is the presumption that it was written
as an identifying mark. This ballot Exhibit V-29 should, therefore, be
deducted from appellant, but ballot Exhibit V-53 should be counted in
his favor.

THIRTEENTH ASSIGNMENT OF ERROR

Ballot Exhibit A. Appellant claims that this is clearly a
marked ballot, but did not point out any identifying mark. We found no
mark in this ballot except some accidental stains at the back which
shall be considered innocent (Sec. 149, par. 18, Revised Election
Code). This ballot was properly admitted for appellee.

Ballot Exhibit A-1. Appellant contends that the name
“Conching Omega” was written by a different hand. This observation is
without basis. The name of the candidate on line 2 for councilors
written in printed form does not constitute a distinguishing mark. The
rules for the appreciation of ballots provide that the use of two kinds
of writing shall be considered innocent and shall not invalidate the
ballot (Sec. 149, par. 181, Revised Election Code). This ballot was
properly admitted for appellee.

FOURTEENTH AND FIFTEENTH ASSIGNMENTS OF ERROR

We did not find any error in the computation of the lower court in
arriving at the conclusion that appellee received a total of 4,692
votes and appellant 4,650 votes, in accordance with its own rulings,
thereby declaring appellee winner by a majority of 42 votes.

Summarizing our findings in relation to the fifty-nine (59) ballots
subject of this appeal, we find that seven (7) ballots (Exhs. B-1, B-2,
G-1, L-4, L-8, H-7, and K-4) which were admitted by the lower court in
favor of appellee should be deducted from the 4,692 votes credited to
her by said court, thereby leaving 4,685 votes. We also find
twenty-five (25) ballots (Exhs. V-2, V-6, V-97, V-28, V-47, V-17, V-22,
V-38, V-42, V-58, V-67, V-160, V-63, V-86, V-51, V-119, V-125, V-154,
V-163 V-172, V-151, V-164, V-166, V-181 and V-53) which were rejected
by the lower court should be counted in favor of appellant and added to
the 4,650 awarded to him, thereby making a total of 4,675. Appellee has
still a plurality of ten (10) votes over appellant.

Wherefore, the decision of the lower court is modified in the sense
that appellee Asuncion Conui-Omega obtained a plurality of ten (10)
votes, instead of 42, over appellant Cesar Samson. Costs against
appellant.

Bengzon, C. J., Padilla, Labrador, Reyes, J. B. L., Barrera, Dizon, Regala, and Makalintal, JJ., concur.

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^[1] Ibasco vs. Ilao, et al., 110 Phil., 553; Borja vs. De Leon, et al., L-20245, September 30, 1963.