FRANCISCO F. ILLESCAS, PETITIONER, VS. THE COURT OF APPEALS, ET AL., RESPONDENTS.

In
the elections held on November 13, 1951, Benito Cruz and Francisco F.
Illescas were candidates for mayor, and Victor Cruz and Francisco Cruz
were candidates for vice-mayor in the municipality of Angat, Province
of Bulacan. Francisco Illescas was proclaimed elected by municipal
board of canvassers, having received 2,200 votes as against 2,181 votes
of Benito Cruz. In due time the latter filed a motion of protest in the
Court of First Instance of Bulacan, impugning the result in all the 23
precincts, except precinct No. 13-A. Francisco Illescas in turn entered
his protest as to precincts Nos. 2, 4, 4-A, 6, 7, 8, 9, 15, 16 and
16-A. After necessary revision of ballots and trial, the Court of First
Instance of Bulacan rendered a decision declaring Francisco Illescas
elected municipal mayor with a plurality of four votes, the votes being
2,176 for Illescas and 2,172 for Benito Cruz. Both appealed to the
Court of Appeals which, in its decision promulgated on July 26, 1953,
found that Benito Cruz won with a plurality of five votes, he being
credited with 2,185 votes, and Francisco Illescas 2,180 votes. The
latter (petitioner) has appealed to this court by way of certiorari,
and limits the controversy only to the 25 ballots specified in his six
assignments of error. On the other hand, Benito Cruz (respondent), in
further support of the appealed decision, has imputed error to the
Court of Appeals insofar as the 20 ballots mentioned in his two
counter-assignments of error are concerned.

Ballot Exhibit
(I-4) is sought to be rejected by the petitioner, because V. Cruz is
written in the space for mayor. This vote was correctly counted for the
respondent inasmuch as the erroneous initial of the name which
accompanies the correct surname of a candidate does not annul the vote
in favor of the latter (Revised Election Code, section 149, paragraph
6), and the fact that the voter desired to vote for the respondent as
mayor is definitely shown when he wrote his correct surname in the
proper space (Id., section 135). The name of Victor Cruz will
not affect the vote in favor of the petitioner, since he was not a
candidate for mayor. (Id., section 149, paragraph 7).

Ballot Exhibit (3-4) is alleged by the petitioner to have been
erroneously counted in favor of the respondent, because B or F. Cruz is
written in the space for mayor. The Court of Appeals did not commit any
mistake, since if B is considered, it is the initial of respondent’s
name, and if F is deemed as having substituted B, the wrong initial
does not annul the vote for the respondent (Revised Election Code,
section 149, paragraph 6).

In ballot Exhibit (3-6) V. Cruz
is written in the space for mayor. Under section 149, paragraph 6, of
the Revised Election Code, this vote was correctly counted for the
respondent. But it is contended for the petitioner that the vote should
be rejected, because B or R Cruz appears in the space for member of the
provincial board and the voter might have intended to vote the
respondent for the latter position, and not for mayor. Petitioner’s
contention is not tenable, for the reason that when the name of a
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 (Revised Election Code, section 149,
paragraph 3).

The petitioner wants this court to reject
ballot Exhibit (4-2) in which R. Cruz is written in the space for
mayor. The respondent was properly credited with this vote in
accordance with section 149, paragraph 6, of the Revised Election Code.

Another ballot assailed by the petitioner is Exhibit 4-3 in which V.
Cruz is voted for mayor. Similarly with Exhibit 1-4, said vote for the
respondent must be sustained.

As ballot Exhibit (4-6), also impugned by the petitioner is analogous to Exhibit 3-6, it should be counted for the respondent.

The petitioner argues that ballot Exhibit (4-7) cannot be considered as
a valid vote for the respondent, because V. Cruz appears in the space
for mayor and V. Cruz appears in the space for vice-mayor. The vote for
the respondent as mayor was correctly counted under section 149,
paragraph 6, of the Revised Election Code.

Ballot Exhibit
(5-7) is found by the Court of Appeals to contain in the space for
mayor Binti or Bintu Kris or Kais, and was counted for the respondent
under the principle of idem sonans. Contrary to petitioner’s contention, no error was committed by the court a quo.

As ballot Exhibit (5-10) is similar to Exhibit 4-7, the petitioner’s plea for its rejection is without merit.

Ballot Exhibit (6-1) is in the same class as Exhibits 3-6 and 4-6.
Hence petitioner’s contention that it should not be counted is
overruled.

In ballot Exhibit (6-4) Benito Alinsangan Cruz is
voted in the space for mayor, and it is insisted for the petitioner
that the word Alinsangan was inserted to identify the voter. The
speculative argument of the petitioner cannot prevail over the contrary
finding of the Court of Appeals, and the vote must accordingly be
credited in favor of the respondent in virtue of section 149, paragraph
9, of the Revised Election Code which provides that the use of a
nickname, if accompanied by the name or surname of the candidate, does
not annul such vote, except when it was used as a means to identify the
voter. It is uncontroverted that Alinsangan is the family nickname of
the respondent.

Ballot Exhibit (6-2) is objected to by the
petitioner for being marked, the words “Panlao ang nacio” having been
written thereon. As the ballot does not contain such expression, the
Court of Appeals having in fact made no finding on the matter, the vote
was properly counted for the respondent.

V. Cruz is written
in the space for mayor and B. Cruz in the space for member of the
provincial board in ballot Exhibit (6-5), and the petitioner claims
that the vote should be considered stray. The ballot is in the same
group as Exhibits 3-6, 4-6 and 6-1 and, for the reason we have already
set forth, must be awarded to the respondent.

Ballot Exhibit
(9-13) is protested by the petitioner on the ground that A. Bento, the
name of a person distinct from that of the respondent, is written in
the space for mayor. Bento readily has the sound of Benito and is
therefore good under the principle of idem sonans (Revised
Election Code, section 149, paragraph 2). As the erroneous initial of
the surname accompanying the correct name of a candidate does not annul
the vote in favor of the latter (Id., paragraph 6), this vote was
rightly considered for the respondent.

The petitioner
questions ballot Exhibit (8-1) in which V. Cruz appears in the space
for mayor. Under section 149, paragraph 6, of the Revised Election
Code, this vote must be held valid for the respondent, in parity with
Exhibits 1-4 and 4-3.

The petitioner wants ballot Exhibit
(12-1) rejected because F. Coros is written in the space for mayor.
This is a valid vote for the respondent, since Coros may easily sound
Cruz and should be accepted under the principle of idem sonans
(Revised Election Code, section 149, paragraph 2) in connection with
paragraph 6, section 149, of the same code, which provides that the
erroneous initial of the name which accompanies the correct surname of
a candidate does not annul the vote in favor of the latter.

Ballots Exhibits (13-6 and (13-7 are alleged by the petitioner to be
marked, because in the first Sotto Lombir (meaning lumberyard) appears
on the first line for municipal councilors, and in the second S. Lamber
appears on the first line for councilors. The proof shows, however,
that there was a candidate by the name of Soto known as Soto Lumber
because he owns a lumberyard. Moreover, even assuming that there was no
such candidate, as the Court of Appeals held, the votes can be validly
counted for respondent, in view of paragraph 13, section 149, of the
Revised Election Code to the effect that any vote in favor of a person
who has not filed a certificate of candidacy or in favor of a candidate
for an office for which he did not present himself, shall be void and
counted as a stray vote, but shall not invalidate the whole ballot.
Hence these two votes are valid for the respondent.

Ballot
Exhibit (13-9) should be discarded, according to the petitioner,
because E. Cruz is voted for mayor. Under section 149, paragraph 6, of
the Revised Election Code, this vote was properly counted for the
respondent.

The petitioner contends that ballot Exhibit
(G-5) was erroneously rejected by the Court of Appeals which held the
same as marked, because of the mere fact that the word “nardo” is
written above the letter “F” of F. Illescas voted for mayor. The Court
of Appeals made its deduction from a penmanship comparison of some
letters in “nardo” with corresponding letters in “Briones” and
“Delgado” appearing in the same ballot. On the other hand, it is
insisted for the petitioner that the word was not written by the voter.
In the absence of positive evidence on the point, other than the ballot
itself, we are inclined to hold that the basis for the conclusion of
the court a quo is rather inconclusive, and we therefore rule that this
vote should have been counted in favor of the petitioner.

The Court of Appeals rejected ballot Exhibit (H-5) as a valid vote for
the petitioner, on the ground that only the word “Kiko” is written in
the space for mayor. We have, however, already ruled that “when the
nickname of a candidate is a derivative or contraction of his Christian
name or his surname and if he is popularly and commonly known by that
nickname, a ballot where only such nickname appears is valid for such
candidate if there is no other candidate with the same nickname for the
same office.” (Abrea vs. Lloren,^[*]
46 Off. Gaz., 439.) It cannot be alleged that there is no evidence that
the petitioner is popularly known with the name “kiko”, because the
Court of Appeals pointed out that “the protestee tried to show through
the testimony of Tomas Pablo that his nicknames were ‘kikoy’, ‘kiko’,
‘Dong’, or ‘Dodong”, and even admitted that “in this country, the
diminutive of ‘Francisco’ are usually ‘Paquing’, ‘Paquito’, ‘Paco’,
‘Pakoy’, ‘Kiko’, ‘Kikoy’, or ‘Koko’. As there was no other candidates
for mayor with the same derivative nickname ‘Kiko’, the vote in
question should be credited.for the petitioner.

Ballot
Exhibit (H-6) was rejected by the Court of Appeals because Dodong
Illescas is written in the space for mayor, and there is no evidence
that “Dodong” is petitioner’s nickname. This is erroneous, inasmuch as
said court admitted that, as already stated, “the protestee tried to
show through the testimony of Tomas Pablo that his nicknames were
‘Kikoy’, ‘Kiko’, ‘Dong’, or ‘Dodong'”, and no pretense is made that
said testimony has ever been contradicted. Hence this particular vote
is valid for the petitioner.

With respect to ballot Exhibit
(J-8), claimed by the petitioner to be a valid vote for him, the Court
of Appeals made the following finding: “Rejected on the ground that it
is marked because there is a big cross or ‘X’ on the space for Senator
as well as a small cross or ‘X’ and an arrow on the fourth line for
Councilors. The ballot supports the ruling of the lower court for we
can see in the ballot the following: there has been written the name B.
Cruz’ in big letters covering the lines 2, 3, 4, 5 and 6 for Senators
which was cancelled by a big cross and thereafter the voter wrote
another cross or ‘X’ immediately in the upper part of the letter ‘Z’ of
‘Cruz’ and which small cross was later on crossed by a long line, which
crosses are in our opinion unnecessary. Again, the elector wrote the
name ‘B. Cruz’ en the fourth line for Councilors and immediately after
the name the elector wrote an ‘X’ and then an arrow toward said letter
‘X’. Evidently, these crosses and arrow are distinguishing marks which
makes this ballot void. Hence, it was properly rejected by the lower
court.” This conclusion of the Court of Appeals is, we think,
unassailable.

The rejection by the Court of Appeals of
ballot Exhibit (J-11) is based upon the following finding: “Contested
on the ground that it was prepared by the two persons of different
culture. Upon examination of the ballot, we find the objection
completely well taken. The names ‘P. Elysascas’ voted for Mayor and the
initial ‘P’ superimposed by the initial ‘V’ followed by the surname
‘Coros’ on the line for Vice Mayor were written by a person not well
schooled while rest of the names appearing on the other positions were
written by a person skilled in writing. Therefore, this ballot should
be rejected and discarded from those admitted by the lower court in
favor of the protested, it having been prepared by two hands.” We are
not inclined to adopt the contrary position of the petitioner.

Ballot Exhibit (K-3) is claimed as a valid vote for the petitioner.
Like Exhibit J-11, this ballot was found by the Court of Appeals to
have been prepared by two hands because of some obvious variance of the
handwriting contained therein. We are not in a position to alter the
finding of the Court a quo.

It results that, out of
the 25 ballots questioned by the petitioner, only three should be added
to the total number of votes received by and credited to him by the
Court of Appeals, thus still making the respondent the winner with a
plurality of two votes. Although already unnecessary and superfluous,
it may not be amiss to state that, as contended by the respondent, the
Court of Appeals erred in not counting the 14 votes represented by
colored ballots Exhibits (C-1) to (C-14). The reason for the rejection
is that they are sample ballots, and, under section 128 of the Revised
Election Code, no name of any actual candidate shall be written on
sample ballots, nor shall they be used for voting, nor shall they be
counted. In this case there is no question that as well the election
inspectors as the voters to whom the sample ballots were distributed
acted in good faith. The injunction contained in section 128 is
addressed mainly to the election officials, and the latter’s innocent
mistake should not be used as a means to deprive likewise innocent
voters of their right to vote. In a situation like this, we are
constrained to hold the provision to be merely directory. It appears
that, out of 14 votes, nine are for the respondent and five are for the
petitioner. If these are added to their respective totals, the
respondent will have a final plurality of six votes.

The
respondent also claims that ballots Exhibits (3-11) and (9-1) should
have been counted by the Court of Appeals in his favor and that ballots
(Exhibits B-1, I-7, J-9 and J-10), which were credited by said court in
favor of the petitioner, should be discarded. We need not pass on
respondent’s claim, for the result reached herein—already favorable to
the respondent—will not be affected thereby.

The appealed
decision will therefore be and it is hereby affirmed, and final
judgment will be entered five days after notice of this decision to the
petitioner. So ordered, with costs against the petitioner.

Pablo, Bengzon, Padilla, Tuason, Reyes, Jugo and Labrador, JJ., concur.

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^[*] 81 Phil., 809.