G.R. No. 14514. December 18, 1918
ANDRES GARCHITORENA, PETITIONER AND APPELLEE, VS. MANUEL CRESCINI AND ENGRACIO IMPERIAL, RESPONDENTS AND APPELLANTS.
JOHNSON, J.:
Province of Ambos Camarines in an election contest. It appears from the record
that on the 6th day of June, 1916, an election was held in said province for
governor, and other provincial and municipal officers. At said election, Andres
Garchitorena, Manuel Crescini, Engracio Imperial, and Francisco Botor were
candidates for the office of governor. The election was closed. The returns were
made by the inspectors of the various municipalities to the provincial board of
inspectors which, after an examination of said returns, reached the conclusion
that Andres Garchitorena had received 2,468 votes; that Manuel Crescini had
received 3,198 votes; that Engracio Imperial had received 1,954 votes and
Francisco Botor had received 692 votes. Upon that result the provincial board of
inspectors decided that Manuel Crescini had received a plurality of all votes
cast, made a proclamation declaring that he had been elected Governor, and
issued to him a certificate to that effect.
Immediately upon notice of said proclamation, Andres Garchitorena presented a
protest against said election, alleging that many frauds and irregularities had
been committed in various municipalities of said province, and that he had, in
fact, received a majority of all legal votes cast. To said protest answer was
duly made, issue was joined, and a trial was had, after which the Honorable
Maximino Mina, judge, in a very carefully prepared opinion, declared that Andres
Garchitorena had, in fact, received a majority of the legal votes cast, and
ordered the provincial board of inspectors to correct its report theretofore
made, accordingly. Later, for certain reasons, a new trial was ordered (37 Phil.
Rep., 675),[1] which was had before the
Honorable Isidro Paredes, judge, who, after considering all the proof adduced
during the trial of the cause, reached exactly the conclusion which Judge
Maximino Mina had theretofore reached, and issued the same order to the
provincial board of inspectors, requiring them to correct their report or
canvass in accordance with said decision. From that decision, Manuel Crescini
and Engracio Imperial appealed to this Court, briefs were presented, and the
cause was finally submitted for decision on the 16th day of December, 1918.
The following table discloses the votes of the various municipalities to
which the protest related, as declared by the provincial board of inspectors, as
well as the result found by both Judges Mina and Paredes:
Election protest—Ambos Camarines.
Capalonga….. Minalabac…… Mambulao….. Nabua………. Sagnay…….. Baao………… Bato…………. Buhi………….. Calabanga…. Iriga…………. Lagonoy…….
losses………………………………………………………..
losses)………………Total vote as result of this decision:
(a)
Garchitorena…………………………………………………………………………………….
2389 (8287)
(b)
Crescini……………………………………………………………………………………………
1428 (1441)Note.—Abbreviations used.
Prov. B. of Insp. = Provincial Board of
Inspectors.
Gar. = Garchitorena.
Cre. = Crescini.
P. = page.
G. =
grains.
L. = losses.
Ann. = annulled.
The carefully prepared opinions of Judges Mina and Paredes present such a complete analysis of the proof that we deem them of
sufficient value and importance, in relation with the questions presented by the
appellants, to attach to and make them a part of this decision as Exhibits A and
B, respectively.[2]
An examination of the table above inserted shows that because of the frauds
mentioned in the decision of Judges Mina and Paredes, the entire vote in the
municipalities of Minalabac, Sagnay, Bato, Iriga, and Lagonoy, were annulled.
Judges Mina and Paredes, after discussion of the various frauds committed in
said municipalities, arrived at the same conclusion, to wit: that said frauds
and irregularities were such as to absolutely defeat the honest expression of
the desires of the voters of said municipalities. Courts, of course, should be
slow in nullifying and setting aside the election in particular municipalities
or precincts, and they should not nullify the vote until it is shown that the
irregularities and frauds are so numerous as to show an unmistakable intention
or design to defraud, and which does actually and in fact defeat the true
expression of the opinion of the voters of said precinct or municipality. A
reading of the evidence adduced during the trial of the cause, in relation with
the facts stated in connection therewith, in said municipalities, shows an
unmistakable intention and design on the part not only of the election
inspectors but of many of the voters, to defeat, by the methods adopted, the
true expression of opinion, through the ballot, of the people of said
municipalities. The presumption is that an election is honestly conducted, and
the burden of proof to show it otherwise is on the party assailing the return.
But when the return is clearly shown to be wilfully and corruptly false, the
whole of it becomes worthless as proof. When the election has been conducted so
irregularly and fraudulently that the true result cannot be ascertained, the
whole return must be rejected. It is list of all the frauds which will
invalidate an election. Each case must rest upon its own evidence. The rule,
however, is so well established that authorities need no longer be cited in its
support, that whenever the irregularities and frauds are sufficient to defeat
the will of the people of the particular municipality or precinct, the entire
vote should be rejected, and those who are guilty of such frauds and
irregularities should be punished to the very limit of the law. (Patton
vs. Watkins, 131 Ala., 387; Gardiner vs. Romulo, 26 Phil.
Rep., 521; The State vs. Sullivan, 44 Kan., 43; Londoner vs.
People, 15 Colo., 557; Washburn vs. Voorhis, 2 Bart., 54; People
vs. Cook, 8 N. Y., 67; The State vs. Malo, 42 Kan., 54, 120,
164.)
The record of the frauds and irregularities committed in the said
municipalities in which Judges Mina and Paredes annulled the entire vote, not
only shows that legal voters were prevented from voting, but in some instances,
legal ballots were tampered with and destroyed after they had been cast, to such
an extent that no confidence can be placed in the return. The return in no sense
discloses the expressed will of the voters. Search has been made in vain for
cases in jurisprudence in which the frauds and irregularities committed were
more glaring and more atrocious, and in which the real will of the voters were
more effectively defeated, than is found in the records in said municipalities
in the present case. The statements of fact made by Judges Mina and Paredes
relating to said frauds and irregularities are fully sustained by the evidence
adduced during the trial of the cause.
When two able, impartial, independent and conscientious judges, such as
Judges Mina and Paredes, each examine in detail the proof adduced in the trial
of the cause and in an extended and carefully prepared opinion, each reach the
same conclusion, there is little left to be added.
After a careful examination of the proof adduced during the trial, we are
fully persuaded that the conclusions reached by the court a quo is fully
supported thereby. While perhaps some errors were committed in rejecting some of
the votes of analfabetos (illiterates persons), the same, even though
they were counted, would not be sufficient to change the general result.
Therefore, and without a further detailed discussion at this time of the
various assignments of error, of the facts, and of the law, the judgment and
order of Judge Isidro Paredes is hereby confirmed, with costs against the
appellant, Manuel Crescini, with the provision that whatever costs Engracio
Imperial had incurred shall be paid by him. And it is hereby further ordered and
decreed that the record be immediately returned to the lower court with
direction that an order be entered immediately in accordance herewith. So
ordered.
We are not disposed to close this decision without taking note of the
recommendation with reference to the criminal prosecution of the election
inspectors and other persons of various municipalities, who wilfully and
maliciously participated in the various irregularities and frauds. The record
demonstrates that not only the inspectors in said municipalities, but other
persons, wilfully and maliciously violated the Election Law, and should
therefore be punished criminally under the provisions of section 29 of Act No.
1582, as amended by section 2632 of Act No. 2657 (as amended by section 2639 of
Act No. 2711). We most earnestly recommended that the Attorney-General
immediately investigate the conduct of the various election inspectors and other
persons, in the municipalities of Bato, Buhi, Calabanga, Iriga and Sagnay, as
well as others, in which frauds were committed, who were instrumental in
defeating the will of the voters in the full and legal exercise of their
elective franchise, and to instigate criminal actions against all such persons,
if the facts are found to be sufficient, to the end that in the future voters
may be permitted to participate in the affairs of their government, through the
ballot, untrammelled and unmolested.
In democracies the people, combined, represent the sovereign power of the
State. Their sovereign authority is exercised through the ballot, of the
qualified voters, in duly appointed elections held from time to time, by means
of which they choose their officials for definite and fixed periods, and to whom
they entrust, for the time being, as their representatives, the exercise of the
powers of government.
It is just such conduct, on the part of those in authority, as is described
in the records in the present case which breeds dissension, disorder, distrust,
and unrest among the people; it creates enmity, animosity and hatred among
otherwise friendly neighbors; it gives birth to a spirit of anarchism and
despair in organized governments; through it socialists are born and communism
runs riot; it engenders distrust and hatred of public officials, creates a
spirit of nihilism and a disregard for individual and property rights; it is
just such conduct, on the part of public officers, upon which Bolshevists feed,
thrive, and survive, and which results in the overthrow of governments, and the
establishment of reigns of terror. The pages of history are filled with
incidents showing the disastrous results to governments where the officials have
their winked at, or actually participated in acts which result in depriving the
people of their right to have a voice in the affairs of their government, and to
express it without let, hindrance, or molestation. And it is not necessary to
search ancient history for examples of what we have said. A people, no matter
how patient and peace-loving, will not endure the deprivation of their rights
and liberties forever.
Arellano, C. J., Torres, Araullo, Malcolm, and Avanceña,
JJ., concur.
Street, J., reserves his vote.
[1] Garchitorena vs. Crescini,
[2] See pages 264 and 398, post.
“EXHIBIT A.
“[United States of America, Philippine Islands. In the Court of
First Instance of Ambos Camarines, Fifteenth Judicial District. Civil Case
No…….. Re election contest for the office of Governor.]
“Andres Garchitorena, petitioner, vs. Manuel Crescini,
respondent.
“Albert E. Somersille and Julian Ocampo, in
behalf of petitioner.
“L. D. Lockwood and Rafael de la Sierra, in
behalf of respondent.
“DECISION.
“In this case, Andres Garchitorena, one of the candidates voted for for the
office of provincial governor of the province of Ambos Camarines, P. I.,
protests against the election of the successful candidate, Manuel Crescini, and
challenges it on the grounds specifically stated in his motion.
“The motion is accompanied, as an integral part thereof, by a certified copy
of the returns and proclamation by the provincial board, acting as a board of
canvassers, according to which copy the respondent, Manuel1 Crescini, obtained
3,198 votes, the petitioner, Andres Garchitorena 2,468, Engracio B. Imperial
1,954, and Francisco Botor 692. All these candidates acknowledged service of
notice of this protest within the legal period and raised no objections
whafcever in the matter.
“This protest aifects eleven municipalities of the province, in which the
total number of votes cast for both of the herein opposing candidates is 2,620.
These municipalities are the following: Baao, Bato, Buhi, Calabanga, Capalonga,
Iriga, Lagonoy, Mambulao, Minalabac, Nabua, and Sagnay.
“The protestant was represented by attorneys Albert E. Somersille and Julian
Ocampo, and the protestee, by Attorneys L. D. Lockwood and Rafael de la
Sierra.
“After the decision of several incidental issues raised by the parties, this
case was finally heard. The protestant presented numerous proofs, both oral and
documentary, whereby nearly all the time that the hearing on this protest lasted
was taken up, while but little evidence was introduced by the protestee.
“In order to proceed with clearness and a certain order, the court will
examine the manifold issues raised by the parties, in the light of the large
amount of evidence that has been accumulated, that of one municipality
separately from that of another, and in each instance will dwell on the facts
and the points of law brought into discussion, the resolution of which be
necessary for a proper decision of this litigation.
“Municipality of Baao.
“The following grounds are advanced in the protest with respect to this
municipality:
” ‘(a) The polling place of this municipality was situated on the upper floor
of the municipal building, and to enter the place stairs had to be climbed. The
booths were formed with screens joined to the walls of the building, one leaf of
each screen serving as a door for the respective booth, in such manner that the
voter inside the latter could not be seen, inasmuch as this door was not raised
fifty centimeters from the floor, as prescribed by law. In the polling place
there was no guard rail placed at least two meters from the ballot boxes and
from the booths, and no entrance and exit were provided, the one separate from
the other, as required by law.
” ‘(b) The election inspectors of this precinct, named Andres Baesa, Ignacio
Britanico, and Facundo Badong, all partisans. of the respondent, observed,
during the voting and the canvass of the ballots on the day of the election, the
following conduct notoriously in conflict with the law and vexatious to the
voters: (1) The inspector Facundo Badong called aloud the voters, one by one,
who were waiting at a distance of thirty meters from the polling place, and not
until the person called had finished voting did he call another; so that the
votes were cast one by one, notwithstanding there were in Baao 419 registered
voters, for whom, eight booths had been provided; (2) no voter, besides those
called by Facundo Badong, was permitted to enter the polling place; (3) said
inspectors prepared and marked the ballots of the illiterate voters who
solicited their assistance, and did so without previously consulting them as to
whom they intended to vote for; (4) said inspectors, violating the secrecy of
the ballot, entered the booths in company with voters able to read and write, in
order to see what the latter wrote on their ballots, and forced them to vote for
the respondent; (5) the canvass of the votes cast was not effected within view
of the watchers representing the candidates and (6), on account of such unworthy
and improper conduct on the part of the inspectors, the petitioner believes, and
so alleges, that many of the ballots counted in the canvass as votes for the
respondent are really votes for the petitioner, or for other candidates for the
office of provincial governor.
“‘(c) The respondent, in connivance with the present provincial governor,
Jose Fuentebella, who was the principal supporter of the former’s candidacy,
conceived together with Fuentebella, the plan of removing, on the very day of
the election, Paulino Bernas from his office of election inspector for said
precinct of Baao, and for this purpose availed himself of the services of the
municipal president of the same town, Julian Barrameda, who wae another of the
respondent’s followers and a principal supporter of his candidacy. So when the
said Bernas went to the polling place on the day referred to, at the hour for
the opening of the polls, he was met by the municipal president Julian Barrameda
who handed him an executive order issued by himself suspending him from office
under the pretext that he, Bernas, was delinquent in the payment of his land
tax. Bernas protested against this unjust and sudden suspension, but said
municipal president, with the cooperation of the other election inspectors and
certain policemen and members of the Constabulary, expelled Bernas by main force
from the polling place, and immediately thereafter the two remaining election
inspectors appointed the municipal policeman Facundo Badong to substitute the
said Bernas. In view of this unexpected occurrence and violence, which was a
threat to the voters, and in consideration of the oppressive procedure, contrary
to law, adopted by the inspectors in relation to the casting of votes, as above
related, about two-thirds of the voters registered in this precinct, partisans
of the petitioner in their great majority, found themselves obliged to refrain
from voting. Had they voted, the result of the election in this precinct would
have been different.
” ‘The names and listed numbers of these electors are those that appear in
the attached Exhibit B, which forms an integral part of his protest.
” ‘The very summary suspension of the inspector Bernas is ascribable as a
cause solely to the fact that he was not an adherent of the respondent and did
not agree to the latter’s plans to harm the election by means of fraud. Bernas
is a man of unquestionable morality and honor, and the electorate of Baao
reposed and reposes in him their absolute confidence.’
“The protestee, in his answer, set up a special defense with respect to this
municipality, alleging:
” ‘1. That it is not true that the respondent has taken part in any manner,
direct or indirect, in the suspension of the election inspector Paulino Bernas,
who is precisely a personal friend and political adherent of the respondent.
” ‘2. That the differences and questions had in the municipality of Baao were
due to the excitement caused in the designation of the incumbent for the office
of municipal president, that is, they were merely a matter of local politics,
and that the matter of the election of a provincial governor in no wise
concerned those differences and questions, for, in said municipality of Baao,
nearly all the voters are partisans of this respondent, and the small remaining
minority, partisans of the candidate Engracio B. Imperial; while the petitioner
has no political influence whatever in his town.
” ‘3. That, although it is true that in this municipality some electors did
fail to vote, it was due to their own voluntary desistance or waiver of their
right in consequence of the differences or questions of local politics that
arose in connection with the election for the office of municipal president;
that the inspectors called those electors and invited them to vote, affording
them all the necessary opportunities so to do; and that the respondent himself
went to the town of Baao on the day of the election and begged said electors to
vote, as they were nearly all of them his partisans, but that they refused to do
so, owing to the aforementioned political questions of a local character.
” ‘4. That, by the failure of said electors to vote, no detriment was caused
the petitioner, while the respondent did suffer greatly thereby, because, as
aforesaid, nearly all of the said electors were partisans of the
respondent.’
“From the documentary and oral evidence taken at the trial it appears that
the general elections held in the municipality of Baao, Ambos Camarines, on June
6, 1916, took place under the following circumstances:
“On March 7, 1916, the municipal council of Baao, presided over by the
municipal president Julian Barrameda, adopted its resolution No. 21 (Exhibit D,
Baao), which is as follows:
” ‘Councilor Bernardino Arroyo presented the following motion: “For the
purpose of exactly complying with the law, and it being well known that in this
municipality there are two opposing political parties headed, one of them by J.
H. Barrameda, and the other by Tomas Guevara, it is desirable that for the party
led by the first name, which obtained a majority of votes in the last election,
there should be appointed two inspectors, and that for the other party one
inspector should be given, in order that the two candi dates in the approaching
elections, Eleuterio Arroyo, belonging to the majority party, and Felix
Imperial, belonging to the minority party, be duly represented by their
respective inspectors. It is therefore recommended that the council take the
action proposed in this motion.”
” ‘On motion by the chairman:
” ‘ “Be it resolved: To appoint, as there are hereby appointed at the
discretion of this council, Andres Baesa, Paulino Bernas, and Ignacio Britanico,
as election inspectors, and Crispulo Badilla, as poll clerk.” The first two
obtained seven votes, and the last two, six votes.
” ‘ “Be it further resolved: To spread on the record that the preceding
appointments, made at the council’s own discretion, as aforestated, were
prompted by the fact that neither of the opposing political parties of this town
presented any proposal in this matter; and to direct the municipal president to
issue to said appointees their proper appointments within the period specified
by law.”
” ‘It was so resolved by a majority vote, with respect to the appointments,
and unanimously with respect to the other matters considered.’
“The document above transcribed, taken in connection with some of the oral
evidence adduced, shows: That there were, as there are, in the municipality of
Baao two opposing political parties, whose respective leaders are Barrameda and
Guevara; that at the time of the adoption of resolution No. 21, that is, when
the appointments were made of those who were to be election inspectors,
Eleuterio Arroyo and Felix Imperial were the recognized candidates for the
office of municipal president, the former belonged to the majority party and the
latter to the minority and that, notwithstanding that said political parties
took no part in the appointment or designation of the persons who were to be
inspectors, the council did, nevertheless, take into account the existence of
these parties by appointing Andres Baesa and Ignacio Britanico, belonging to
Barrameda’s party, and Paulino Bernas, belonging to Guevara’s party.
“There is evidence, and the court so finds, that this voluntary recognition
on the part of the municipal president Barrameda of the rights of the minority,
by the appointment of Paulino Bernas as inspector, was not due so much, to his
desire to respect and protect said minority, as principally to the fact that
Paulino Bernas, notwithstanding that he belonged to the same party as did the
minority party’s candidate, Felix Imperial, was a personal enemy of the latter,
there being on this account good reasons to believe that he would not support
him to any great extent, but on the contrary might work against his
candidacy.
“In view thereof, and as Felix Imperial knew his true situation with respect
to his candidacy, he withdrew seeing that, as the day for the elections
approached, there came forward out of his political party another candidate with
greater probabilities of success, namely, Domingo Fajardo, one of whose good
qualifications, as regards the election strife, was that of his not being a
personal enemy of the sole inspector belonging to his, Fajardo’s party, namely,
Paulino Bernas.
“These facts having come to the knowledge of the members of the opposite
party, their leader Barrameda tried not only to remove Paulino Bernas from the
board of election inspectors but also to do so on the yery day of the elections,
in order thus to control the situation and to render absolutely futile all
attempts of the opposite party opportunely to obtain any legal redress.
“The plans made with these ends in view were in fact carried into execution:
the inspector Paulino Bernas was expelled from the polling place, on the very
morning of June 6, 1916, and Facundo Badong, a municipal policeman whose
resignation as such was pending acceptance or disapproval by the municipal
council, was appointed in his stead. If this policeman was not a partisan of
Barrameda’s, neither was he a member of the party to which the expelled
inspector belonged.
“This incident, which took place in the presence of nearly all or a majority
of the electors of Baao gathered near or around the polling place to await the
opening of the polls, caused such an impression on all the voters belonging to
the same party as the expelled inspector, and perhaps also on others not of that
party, that they chose to abstain totally from taking part in the elections, for
they saw that they had not or could not opportunely obtain any legal remedy for
the prevalence of what they believed to be their right.
“The number of the voters who withdrew on this account was 254, and of the
419 voters entered on the election register only 165 voted.
“While the court deems the facts above related to have been fully proven, not
only by a preponderance of the evidence adduced by the protestant, but also by
the admissions of the protestee, yet he is not of the same opinion as regards
the influence which these underhand tricks of a local character may have had in
respect to the contests for the elections of provincial officers, nor does he
believe there was any such positive proof as regards the direct or indirect
participation which the governor, Fuentebella, may have had therein, and the
pretended community or unity of election interests on the part of said Governor
Fuentebella, the protestee Manuel Crescini, and Julian Barrameda.
“The court considers very abrupt the conclusion which the protestant draws
from the fact that the said Fuentebella, Crescini, and Barrameda belong to the
same political party, with the additional circumstance that the first named was
governor of the province, and the second a member of the provincial board; and
likewise his conclusion from the fact that provincial tickets or ballots were
found on which appeared the name of the candidate Crescini together with that of
the candidate Barrameda. (See Exhibit B.)
“In reality, as disclosed by the evidence, there was no struggle of parties
in the matter of the provincial offices, and two of the candidates for governor
(Manuel Crescini and Engracio Imperial) both belonged to the same party as did
Governor Fuentebella, and both were also members of the provincial board; and as
to the provincial tickets or ballots, there was a variety of them and among
these there were free combinations of names and offices. It appears that, as a
rule, the candidate upon obtaining such tickets would write on some of them
besides his own name another or other names of such candidate or candidates as
he believed to be the most popular, so as to draw attention and interest, or the
candidate would have several tickets with names and offices differently
combined, and to some voters would give those containing the name, united with
others, of the candidate whom he knew they favored, and would distribute other
such combination tickets to the voters whose preferences were known to incline
to some other different candidate.
“It is not denied, nor can it be denied, that there exists some relation,
mayhap an intimate one, between the different offices to be voted for in the
general elections, but it would be too abrupt a supposition to infer that there
was a relation of coincidence between the underhand tricks above mentioned and
the votes obtained by the protestee or the votes which the protestant was unable
to obtain, as likewise it would be too venturesome to affirm or contend that the
legality of the election in Baao hinged on the person of the inspector Bernas
and on the concurrence of each one and all of the registered electors.
“Without discussing here—because the court deems it unnecessary to do so and
this is not the proper place for it—whether or not the municipal president
Barrameda or the other election inspectors proceeded legally in eliminating
Paulino Bernas from the board of inspectors or in expelling him from the polling
place; whether or not there was good and sufficient ground for said officials to
have proceeded as they did; whether or not the policeman Facundo Badong, who
resigned as such, was qualified to be appointed inspector instead of Bernas; and
whether or not the 254 voters of Baao, of the political party contrary to that
to which Barrameda belonged, did right or wrong in abstaining from casting their
votes for the reasons stated in the petition subscribed by them, Exhibit E, it
is obvious that, with the exception of this incident that happened on the
morning of the elections, the latter followed their course in relatively good
order in the polling place and booths, which no doubt, owing to their
imperfection and deficient condition, could not serve as models, but which were
provided with the necessary safeguards for the free and secret expression of the
will of the voters.
“From the protestant’s own evidence it is disclosed that the partisans of the
candidate for municipal president Domingo Fajardo had not, properly speaking,
centered upon any candidate for governor such as might be said to be the choice
of the group; some of them were known to favor the candidacy of Imperial, others
seemed to be inclined in favor of that of Garchitorena, still others would have
liked to see Botor triumph, and the rest desired the election of Crescini.
“The allegations that ‘the inspectors prepared and marked the ballots of the
illiterate voters who solicited their assistance, without previously consulting
the latter as to whom they intended to vote for, and that said inspectors,
violating the secrecy of the ballot, entered the booths in company with voters
who could read and write, to see what they wrote on their ballots, and forced
them to vote for the respondent’ are not sustained by the evidence, and the
protestants suspicion, that in the canvass, said inspectors counted as votes for
the protestee some which really had been cast for the protestant or for other
candidates for the office of governor, rests on no serious and reasonable
ground.
“And protestant’s counsel do not insists nor maintain in their brief that
they proved those averments of their motion, and merely touch lightly upon those
relative to certain supposed irregularities in the manner of conducting the
elections and to the construction or arrangement of the polling place and the
booths. It is easy to comprehend that though it were proven that such
irregularities, or, more properly speaking, imperfections of the polling place
and booths used, did exist, they cannot, in the absence of fraud, vitiate nor
much less invalidate the elections held in the single precinct of Baao.
“In view of the foregoing facts deemed to have been proven and of the
considerations set forth in relation thereto, the court is of the opinion that
for such reasons no change whatever should be made in the returns of the general
elections held in Baao on June 6, 1916. The persons responsible for the abnormal
state or condition of affairs that prevailed in said municipality on that 6th
day of June may be deserving of censure, perhaps penal or administrative, but
that would not warrant the declaration that the votes of those electors which
were cast in an orderly and honorable manner on the very day and in the manner
prescribed by law are null and void and of no value.
“Now, coming to the matter of the examination and recount of the votes cast
in the single precinct of Baao for provincial governor, and duly considering the
accusations made by the parties, the court finds that, taking into account that
several illiterate electors voted in said precinct—a fact not discussed by the
parties—and also taking into account that the inspectors were not expected to
choose the ballots they prepared for these illiterate voters, it is to be
supposed that the groups of 63, 15, and 8 ballots found to have been written by
the same hand (each group) are those which said inspectors filled out or marked
for the voters incapacitated to do so themselves and who requested their
assistance in conformity with the law.
“In fact, the document Exhibit X, Baao, which is the record of the
proceedings of the board in the matter of assistance to illiterate voters, shows
that 83 electors were assisted by the inspectors Andres Baesa, Ignacio
Britanico, and Facundo Badong, in the proportion, respectively, of 61, 16, and
6, which numbers differ very little from those above mentioned of 63, 15, and
8.
“The list shows 61 ballots filled in by Andres Baesa, and the handwriting
expert identified 67 ballots as written by the same hand; but this court, after
a careful examination of these ballots, is of the opinion that those numbered
36, 45, 46, and 47 are not identical with nor similar to the other ballots of
the same group.
“In the challenge of the ballots, protestant’s counsel speaks of a group of
16 ballots written by the same hand, and, according to the list, Ignacio
Britanico assisted 16 illiterate voters.
“Facundo Badong prepared 6 ballots for illiterate voters, as against 8
ballots found by the court to be written in the same hand; for, although the
handwriting expert separated 9 ballots to form one group, it can be seen that
the ballot bearing No. 33 was erroneously included.
“According to the foregoing statements the list should show 63 (64 less 1)
electors assisted by Baesa, 14 (15 less 1) by Britanico, and 7 (8 less 1) by
Badong, that is to say, one ballot should be deducted from each group as being
cast by the inspector himself and which for this reason should not of course
appear on the list. Now then, adding together these numbers 63, 14- and 7, we
have the sum of 84, and comparing it with the number of electors given on the
list, 83, it is seen that there is only a difference of one, an error that is
easily explained, if but due account be taken of this kind of work and of all
the circumstances of the case.
“Neither is it difficult to believe that the discrepancy between the
proportions for each inspector (63, 14, and 7 in the ballots, and 61, 16, and 6
on the list), may be due to involuntary transpositions or mistakes by recording
that Britanico assisted two more electors, when in fact they must have been
assisted by Baesa, or one of them by Baesa and the other by Badong.
“The court believes that the list of illiterate voters, notwithstanding the
slight errors mentioned, is correct within the purview of the law, was made up
honestly by the inspectors and the poll clerk, and is a faithful record of the
proceedings of the board in the matters of the assistance given to incapacitated
electors.
“The other ballots challenged are Nos. 2, 3, 48, 115, and 119, all for Manuel
Crescini and written in the same hand. They are admitted because in the opinion
of the court they were not written by the same hand.
“Nos. 121 and 138, the first for Manuel Crescini and the second for Engracio
Imperial, are challenged on the same ground. They are admitted. They are not
identical nor similar.
“Nos. 11 and 20, both for Crescini. The same challenge. The same ruling.
“No. 118, for Crescini, and No. 148, for Francisco Botor. It is alleged that
they are in the same handwriting. They are not, and are admitted.
“Nos. 9 and 10, for Manuel Crescini. Both are rejected as having been written
by the same hand, and not by any of the inspectors of election.
“No. 1, written with a drawing pencil, is admitted there being no proof of
fraud.
“According to the election returns Manuel Crescini obtained 133 votes and
Andres Garchitorena 6; but the commissioners who were appointed awarded only 128
to the first and 5 to the second, and did not award to anybody the ballots found
with space for the office of governor left blank, nor were these ballots
claimed.
“The ballots rejected by the inspectors during the canvass and claimed
by the interested parties before the commission are again rejected.
“Therefore,
the following votes, cast in the sirfgle election precinct of Baao, are finally
awarded to each of the litigants in this contest, to wit, to the candidate
Manuel Crescini 128 votes, less two rejected (ballots Nos. 9 and 10), that is,
126 votes, and to the candidate Andres Garchitorena 5 votes.
“Municipality of Bato.
“The elections in the municipality of Bato are challenged by the protestant
who sets forth in his motion the following grounds:
” ‘ (a) The polling place of this municipality was situated on the upper
floor of the school building and to gain entrance thereto it was necessary to
climb the stairs. The booths were so small that they each comprised a space of
less than one meter square. One of the sides of each J3ooth was open, serving as
an entrance, and, besides, the desks placed one in each booth were so arranged
that the voter sat facing the side of the booth, and any one passing along the
line of booths could see what the elector was writing. In this polling place no
guard rail was constructed, situated at least two meters from the ballot boxes
and from the booths, as the law requires.
” ‘(b) The inspectors of election of said precinct, named Eligio Calleja,
Potenciano Orasa, and Francisco Relos, staunch partisans of the respondent,
deceived and defrauded on a large scale the illiterate electors of said precinct
who solicited their assistance and in such manner that said inspectors did not
inquire of nor consult said illiterate voters in regard to the person for whom
they intended or wished to vote, but marked the ballots to their, the
inspectors’ liking, writing in the space allotted for the candidate for the
office of provincial governor the respondent’s name, though such illiterate
voters expressed their desire to vote for the petitioner or for some other
candidates for said office.
” ‘(c) During the elections said inspectors carried on propaganda work and did
electioneering to induce the electors coming to the polling place to vote for
the respondent, their zeal and interest in this electioneering reaching such a
pitch that they even accompanied within the booths electors who could read and
write, in order to see what the latter wrote on their respective ballots, and
threatened them with future vengeance if they showed unwillingness to write out
or cast their votes in favor of the respondent, and, not content with this, said
inspectors opened the ballots of these electors able to read and write, so as to
ascertain their contents before depositing them in the ballot box. In such
manner many votes were obtained for the respondent which should have been for
the petitioner.
” ‘The names and the listed members of said electors so influenced imduly and
improperly by means of threats are Esteban Pili, Braulio Azanza, Ricardo
Calinao, Dalmacio Buena, Estanislao Sandigon, and Domingo Palides. There are,
besides, other such electors whose names are at the present time unknown to the
petitioner.
” ‘(d) Said election inspectors did not administer the oath prescribed by
law to such electors as, on account of illiteracy or some physical defect,
solicited their assistance for the preparation of their ballots.
” ‘(e) More than 140 persons unqualified as electors were allowed to vote in
that precinct, and their illegal votes were deposited in the ballot box and
counted in the canvass. The names of said persons were carried on the list of
voters of Bato.
” ‘(f) Said inspectors of election allowed more than 100 persons to vote
after 6 p. m. on the day of the election—the hour for the closing of the polls
according to law—and their votes were unduly deposited in the ballot box and
afterwards counted in the canvass.
” ‘(g) The aforementioned election inspectors, acting illegally and
arbitrarily, would not permit the voters among the public nor the watchers of
several candidates to witness the voting, and during the canvass of the votes
these watchers were so situated that they might notf as in fact they could not,
see nor read the contents of the ballots which were being canvassed; for which
reason the herein petitioner believes, and so alleges, that said election
inspectors read during the canvass the name of the respondent for the office of
provincial governor, although the spaces provided on said ballots for the
insertion of the name of the candidate for said office were filled in with the
name of the petitioner or that of some other person.
” ‘(h) Several ballots, more than ten in number, were read with the omission
of the name of the candidate voted for for provincial governor notwithstanding
the fact that the other blank spaces on said ballots, provided for candidates
for other offices, were filled in, which leads the petitioner to believe, and he
so alleges, that those ballots, or the majority of them, contained his name for
the office of provincial governor/
“As may be seen, in the motion, mention is made of several more or less
serious irregularities, and various unlawful acts are complained of, which
constitute violations of law, as much with regard to the persons who, without
possessing the necessary qualifications qualified as electors and voted, as to
the inspectors who knowingly registered them and permitted them to vote, and
said inspectors are accused of various frauds committed during the course of the
elections.
“The court does not need to examine one by one the numerous proofs presented
in support of each one of the allegations of the motion. Be whatever they may
the irregularities that mar an election, if there has been no fraud on anybody’s
part, such irregularities, unless extremely serious, do not void the election;
while, on the contrary, the existence of fraudulent irregularities determines
the nullity of the election, immaterially whether or not they be serious or
numerous. That is the crucial test. Therefore the most advisable procedure, and
the court prefers this course, is to begin by ascertaining whether or not frauds
were committed in the elections held at Bato, and, if they were, by whom.
“From an examination of the ballots and other documents introduced in
evidence, the court finds:
“That 351 persons were registered on the list of voters, all of whom voted on
the day of the election, the polls being open from 7 o’clock in the morning
until 10 o’clock at night; that more than one-half (180) of the ballots were
prepared or filled in by the inspectors, all, absolutely all, of such ballots
being for nianuel Crescini, without a single vote for any other candidate for
governor; that there are 22 ballots written by the inspectors, besides about 8
written by electors, which were not counted in the canvass, on account of being
marked, which ballots are also for Manuel Crescini, except one, which is for
Andres Garchitorena; that the number of illiterate voters who were assisted by
the inspectors in the preparation of their ballots is 141 only, according to the
corresponding statement or list; and that two ballots disappeared.
“The preceding data, considered jointly with and in relation to all the other
evidence introduced, show nothing but the nature of the illegal acts denounced
in the motion, or, if preferred, irregularities so grave as to confound
themselves with illegalities, and the existence of the frauds alleged, or, if
preferred, discrepancies, excesses, and faults which do not harmonize with good
faith.
“Be it observed, in the first place, that more than one-half of the ballots
(180) were written by the inspectors, while the number of illiterate voters
assisted is 141 only.
“There cannot be the slightest doubt that 180 ballots were written by the
inspectors. The inspectors themselves identified those that were prepared by
them: Eligio Calleja picked out 17 such ballots, Francisco Relos 60, and
Potenciano Orasa 87, making a total of 164, to which must be added 5 by Calleja,
6 by Relos, and 5 by Orasa, that is, 16 ballots more, making a grand total of
180. (The hand-writing expert identified 6 more ballots as being written by
Orasa; but the court is of the opinion that one of these should be excluded,
namely, Ballot No. 149.)
“Now then, if the foregoing facts are true and indisputable, as they are, for
the ballots show them to be so, it is clearly seen that the list or statement of
illiterate voters is false, and that the inspectors were gravely remiss in the
fulfilment of their duty by failing to enter thereon a considerable number of
electors assisted by them. No explanation whatever can be offered, for it is not
a question of involuntary negligence or oversight, or of a more or less
excusable mistake: it was simply an abandonment of duty, verging on an actual
disdain of the law. Nor is a plea of ignorance admissible, for, in such a case,
no list at all would have been made.
“If on the other hand this statement concerning illiterate voters is correct,
then it is the best proof that the inspectors defrauded the voters on a large
scale by writing out ballot after ballot for illiterate voters not in existence;
and if those ballots were for electors who could read and write and the
candidates voted for on them are really the same for whom these electors wished
to cast their votes, then such ballots are illegal, for their secrecy was
violated.
“The protestee has not invited the attention of the court to a satisfactory
explanation of this serious disagreement between the list of illiterate voters
and the ballots, and the great difference (39 votes) between 141 incapacitated
and 180 assisted voters; and the court finds no light to attenuate, if not to
dissipate completely, the dark shadows cast upon the elections at Bato by
frauds, illegalities, and irregularities.
“Whether we accept any extreme of the alternatives above enunciated, or forge
other propositions, we shall always find in front of us in brazen relief in the
midst of confusion the execrable figure of illegality, or perhaps that of fraud,
or if preferred that of various irregularities.
“What are, and what should be done with, the 39 votes (there are included
here the 22 votes of which we shall speak more extensively in another place)
which make up the difference between the 141 incapacitated voters appearing on
the corresponding list or statement, and the 180 ballots written by the
inspectors for the illiterate or assisted voters, is what should be determined,
premising, for the purposes of the discussion of this question, that the
inspectors of Bato complied with the requirement of the law to administer the
oath of incapacity or disability to each one and all of the electors assisted in
the preparation of their respective ballots. Also, for the purposes of the
argument, said list or statement of illiterate voters is presumed and admitted
to be correct and true, inasmuch as if the contrary be insinuated or maintained,
then not only would the 39 votes, constituting the difference aforementioned, be
illegal, but also all the 180 votes written by the three inspectors, with the
exception perhaps of three of them, their own votes.
“In reference to circumstances of the same nature as those concerned in the
instant case, in the case of Gardiner vs. Romulo (26 Phil. Rep., 521), the
Supreme Court said:
” ‘The judgment of the lower court contains the following comment as to the
discrepancies in the reports rendered by the inspectors of the five precincts of
Camiling, in compliance with the above provisions of law.
” ‘ “First precinct.—According to the record of the illiterate
voters of this precinct, the inspector Marcelino Fabros assisted only three such
persons in the preparation of their ballots, and Eudoxio Masilongan, twelve. The
first named, nevertheless, identified 13 ballots as his, written in his own
handwriting; and the last named, 32. There is an excess of 30 ballots. It is
understood how, for various reasons, a few names might have been omitted from
the list of illiterates, but not those of thirty voters. Undoubtedly, these
inspectors betrayed the confidence reposed in them, and the ballots written by
them merit no consideration whatever.
” ‘ “Second precinct.—According to the record of illiterate voters,
59 of these were assisted by the inspectors; but the latter identified 77
ballots. There is, therefore, an excess of 18 ballots. Were it a question of
only three or four names, we might say that the election inspectors forgot to
record these three or four names in the list of illiterates, owing to the haste
with which they proceeded in all their act? and to the large number of voters
who requested their assistance; but we do not believe that those inspectors
forgot to enter 18 names. If these men had actually voted, we believe that their
names would have appeared in the list or record of illiterates. We are of
opinion that all these ballots should be rejected; and as 42 of them were cast
for Romulo and 35 for Gardiner, 42 votes should be deducted from those obtained
by Gregorio Romulo and 35 from those obtained by Ernesto Gardiner.
” ‘ “Third precinct.—With respect to illiterate voters, Inspector
Juan Guillermo assisted 80 of them. One hundred and nineteen ballots were
identified as having been written by this inspector. Of these 119 ballots, 16
are for Ernesto Gardiner and the rest for Gregorio Romulo. There is proof that
136 illiterate voters voted in this precinct, all of them assisted by Juan
Guillermo. It is to be presumed that in the ballot boxes there were 17 more
ballots written by this inspector. It must be taken into account that Juan
Guillermo did not identify the ballots written by himself, but these were
identified by his two companions, inspectors Zacarias Reyes and Pio Salamanca.
Of the 136 illiterates, 54 of them testified that they indicated to Juan
Guillermo that they wished to vote for Gardiner for governor. Of the 119 ballots
identified as written by Juan Guillermo, only 16 of them were cast for Gardiner.
Juan Guillermo defrauded the will of 38 voters for Gardiner, and these votes
should be awarded to this candidate and deducted from those obtained by Gregorio
Romulo. The other 83 illiterates who testified all voted for Gregorio Romulo,
which is proved by their own testimony.
” ‘ “Fourth precinct.—With regard to the illiterate voters, 49 of
them were assisted by the election inspectors, but the latter identified only 41
ballots. There must be a few more ballots that were written by these inspectors
and which could not be identified by them for some reason or other.
” ‘ “Fifth precinct.—With respect to the illiterates, it is
sufficient to say that, according to the certificate of election, only 73 of
them were assisted by the inspectors, while the chairman of the board identified
98 ballots as having been written by the inspectors.”
” ‘We do not understand why the court failed to find the inspectors of the
second, third, fourth, and fifth precincts guilty of fraud by the same line of
reasoning which was applied to the inspectors of the first precinct. In the
second precinct the court finds that the discrepancy between the
records of the inspectors and their testimony could not be explained as an
oversight in the keeping of records. As the discrepancy is only attributable to
a willful disregard of the above quoted provisions of section 22, for no good
purpose, their conduct is on a par with that of the inspectors of the first
precinct. The court does find, in effect, that the inspectors of the third
precinct grossly defrauded the illiterate voters. That, perhaps, is
sufficient, without expressly stating that they were guilty of fraudulent acts.
In the fourth precinct, however, the inspectors’ records show that 49
illiterates voted while they could identify but 41 ballots, a discrepancy of 8.
The explanation is that the inspectors were unable, in eight instances, to
recognize their own handwriting. This explanation is not consistent with the
well known accuracy with which a person can identify his own handwriting on a
document containing as much of it as a ballot at a general election. The better
explanation seems to be that the inspectors deliberately padded the list of
illiterates. In the fifth precinct, where the court found the
inspectors guilty of fraud in other particulars to such an extent that it was
found necessary to annul the returns from that precinct, there can be no
question that the shortage of 25 illiterates on the records of the inspectors
was due to fraudulent practices.’
“This court does not overlook the fact that in the case above cited there was
a very special circumstance which perhaps had a decisive influence over the
minds of the Honorable Justices who subscribed the decision, to wit, the
disappearance of official ballots; but the legal doctrine enunciated cannot for
that reason alone be inapplicable to the instant case, at least as regards the
difference of 39 ballots, the qualification of which is now the subject of our
consideration.
“From all that has been said, it is concluded that at least the 39 votes
under discussion are, and should be considered, fraudulent, which conclusion is
at the same time a necessary premise of these others, to wit: that in the
elections held at Bato frauds were committed, and that these frauds are
considerable.
“Who committed them is a matter that requires no further explanation; it is
clear enough. Those frauds were committed by the election inspectors.
“Examining the records or list of illiterates assisted in the preparation of
their ballots, it is found to be a nominal list of these electors. Beside each
one of the latter’s names there were written the names of the two inspectors who
assisted the respective voter; so that each line contains three names, to wit:
that of the elector and those of each of the two inspectors.
“Now then, if the inspector whose name is the first that appears on said list
is the one who wrote the ballot, and the inspector whose name follows the first
is the witness, we have the result that Eligio Calleja filled in 58 ballots,
Potenciano Orasa 26, and Francisco Relos 44, there being 13 names of electors
without any indication whatever as to who assisted them. If, on the contrary,
the second name is that of the inspector who wrote out the ballot, and the first
name is that of the witness, the result follows that Eligio Calleja filled in 41
ballots, Orasa 73, and Francisco Relos 14, with the same 13 lines in blank where
we should expect to see the names of the inspectors who assisted.
“Comparing the results of this examination with the number of ballots written
by each inspector, many differences will be observed, for the better
appreciation of which the following comparative table is inserted:
Eligio Calleja ………………………… Francisco Relos………………………. Potenciano Irasa …………………… In blank……………………………………………
“By a mere glance at the preceding table, whether we take the first name on
the list, Eligio Calleja, or the second, as that of the inspector who filled in
the ballot, it will be noticed that the result is always the same, namely, that
the list shows many more ballots as having been prepared by the inspector than
those actually found in the ballot box as having been written by him.
“In view thereof, it is indisputable that, although it appears certain that
the illiterate electors of Bato duly took the oath of incapacity before being
assisted in writing out their ballots, as so evidenced by the corresponding
record, the statement or list of said illiterates is nevertheless false, both in
regard to the number of the latter and to the point in reference to which of the
three inspectors, whether one or more, wrote out such electors’ respective
ballots.
“There is no possible middle ground to be taken, for it has been certainly
ascertained just what ballots were written by these three inspectors and what
proportion of them corresponds to each inspector, as shown by the ballots
themselves. The list of illiterate voters is therefore necessarily false in all
its essential features and deserves no credence whatever, or clearly shows that
the inspectors deliberately filled it in, with or without fraudulent intent, but
with grave violation of the provisions of law.
“There is another fact that also shows, though indirectly, the falsity of the
list of illiterates and that either certain electors unnecessarily requested
assistance, with violation of the secrecy of the ballot, or the inspectors in
some manner compelled them to allow their ballots to be filled in.
“The register voters of Bato contains, in conformity with the law, entries of
the qualifications of each elector. The election inspectors used the letter ‘E’
placed beside the name of the elector in the proper column to indicate that the
latter had the qualification of education; the letter ‘O,’ to indicate that he
had held offices such as the law mentions; and the letter ‘P,’ if he was a
property owner. Now then, an examination of that register, on an assumption that
it is correct and true in all respects, discloses that 164 electors were
registered as qualified by education, 58 by education and office, 8 by
education, office and property, and 2 by education and property (that is, 232
electors who could read and write), 115 by office, 2 by property, and 2 by
office and property (that is, 119 illiterate electors). According to the ballots
however 180 electors were assisted in writing them out. It would not be strange
that some 10, 20, or 30 of the electors able to read and write should have
requested assistance in marking their ballots, on account of their inability to
do so themselves; but 61 (which is the difference between the 119 illiterate
voters and the 180 ballots written for illiterate voters) is quite a large
number which can, and does in fact, awaken certain suspicion against the
legality of the proceedings conducted by the board of inspectors.
“The result is that not only should the 39 votes of illiterates which, for
the reasons above set forth, are deemed to be fraudulent, but also all the 180
ballots of illiterates, for the same reasons and because of the unexplainable
discrepancies and inaccuracies which point to grave irregularities,
illegalities, committed by the inspectors.
“Let us consider now, in the second place, the fact that the voting was
prolonged until 10 o’clock at night, there being no more than 351 voters, 180 of
which, or more exactly, 177, were assisted by the inspectors, and the voting
having commenced at the hour fixed by law, with a complete number of booths.
“The protestant’s witnesses calculate that 100, or at least no less than 90,
electors voted after 6 o’clock in the evening while the witnesses for the
protestee estimate at 40 and no more than 50 the number of such tardy voters. As
the voting lasted more than ten hours and the number of voters was 351, the
resultant proportion is at the rate of not less than 23 electors per hour; so
that, under similar circumstances, as it was so proven, not less than 92
electors, or more than 28 per cent of the total number of electors entered on
the electoral registry, must have voted between 6 o’clock in the evening and 10
o’clock at night.
“Be the proportional number 40, as the protestee claims it was, or 100,
according to the protestant’s calculations, or 92, as the proportion was shown
to be, it is undeniable that this constitutes at least an irregularity of
relative importance and seriousness, and if this fact is brought into relation
with the fact that several electors without legal qualification took part in the
elections at Bato (the very evidence produced by the protestee disclosed three
such at least, namely, Pablo Sabao, Faustino Casili, and Santiago Aquino), and
with the further fact of the finding of 30 marked ballots which shall be
discussed later on, the mind is drawn to the conclusion of the existence of
other frauds or illegalities which vitiated the election.
“Considering separately this fact of the prolongation of the voting until 10
o’clock at night, and regarding it as a mere irregularity, in the light of the
legal provisions and principles in the matter, we find that:
” ‘At all the elections held under the provisions of this chapter the polls
shall be open from seven o’clock in the morning until six in the afternoon,
during which period not more than one member of the board of inspectors shall be
absent at one time, and then for not to exceed twenty minutes at one time/
(Administrative Code, sec. 543 [1916].)
“McCrary says (par. 165, McCrary on Elections, 4th ed.):
” ‘620. From all the somewhat conflicting authorities, upon the subject, the
following may be gathered as the governing rules:
” ‘1. If the statute fixing the hours during which the polls shall remain
open expressly declares that a failure in this respect shall render the election
void, it must be strictly enforced.
” ‘2. But in the absence of such a provision in the statute, it will be
regarded as so far directory only, as that, unless the deviation from the
regular hours has affected the result, it will be disregarded.
” ‘3. If the deviation from the legal hours is great, or even considerable,
the presumption will be that it has affected the result, and the burden will be
upon him who seeks to uphold the election to show affirmatively that it has not.
But if the deviation from the legal hours is but slight, the presumption will be
that it has not affected the result, and the burden will be upon him who attacks
the validity of the election to show affirmatively the contrary.
” ‘4. If the number of votes illegally cast after the legal hours, and the
persons for whom cast, can be shown, they be rejected from the count. (Cited by
Villamor, Tratado de Elecciones, par. 620.)
” ‘628. The same doctrine is maintained in the Cyclopedia of Law and
Procedure (vol. 15, p. 345; Villamor, par. 628) :
” ‘ “The provisions of a statute as to the time of opening and closing the polls
is so far directory that an irregularity in this respect which does not deprive
a legal voter of his vote or admit a disqualified person to vote will not
vitiate the election. But if the departure from the provisions of the statute in
regard to the time for opening or closing the polls was so great that it must be
deemed to have affected the result, the election must be held invalid.” ‘ “
“In view of the legal principles above cited, the court declares that, if he
had to decide this case, with only this irregularity to consider, in connection
with the 730 majority votes cast for the protestee in the entire province, or
with the 260 majority votes over the number obtained by the protestant in the
precinct of Bato, without any doubt the court would not hesitate in according no
importance whatever to that irregularity, although it is obvious that it is not
a question of but a slight inobservance of the legal hours, nor one where only a
small number of votes were illegally cast.
“But such is not the case; the relation must be established between that
irregularity and all the facts brought out at the trial, especially the
illegalities and frauds alleged and proven in respect to the municipality of
Bato. And it has already been said that in that municipality the election
inspectors committed frauds whereby 180 votes were affected. It must also be
taken into account that there is evidence which shows that some persons without
the requisite qualifications were registered in the register of voters and
though challenged voted in this election, some of them precisely during the
night.
“Furthermore, there is even no need to seek relationship with other facts
disclosed at the trial, in order to hold that these votes cast out of time are
invalid; it is sufficient to pause a short while to consider: (a) that Andres
Garchitorena obtained in Bato not a single vote cast by an illiterate, by any
voter assisted by the inspectors, which means that the few who voted for him all
knew how to read and write, and there are reasons to suppose and believe that
they knew the law, at least in so far as it refers to the opening and closing of
the polls, and must have voted during the legal hours; and (b), that the total
number of votes for Garchitorena (32) does not even reach the minimum
calculation (40) of the votes illegally cast, from which it is to be inferred
that the election was not prolonged until 10 o’clock at night in order to admit
the 32 votes for Garchitorena or the very few votes for the other candidates for
governor, but principally and especially in order to afford an opportunity to
vote to all the registered electors, without a single exception, who were known
to be all of them partisans of the protestee Manuel Crescini.
“The procedure of the inspectors of Bato is in very noticeable contrast with
that of those of the neighboring town of Nabua who found but little difficulty
in consulting the provincial fiscal in the matter and in following strictly his
decision in the premises, namely, to close the polls at 6 o’clock in the
evening, notwithstanding that there were still 80 voters who had not cast their
ballots, because these electors were perhaps partisans of the protestant
Garchitorena (in Nabua, Garchitorena had 164 votes as against 110 cast for
Crescini), or at least were not electors who would surely vote for Crescini.
“Four hours of prolongation of the voting is more than a slight inobservance
of the law, and 92 votes, or if preferred 40, are in reality a considerable
number. The result is that these votes illegally cast should be thrown out, if
they could be determined both as regards their numbers and their contents; but
as this cannot be done, in view of the other irregularity committed by the
inspectors in not enumerating successively each elector who voted, in conformity
with the instructions clearly written on the election lists, it follows that we
find ourselves confronted with a serious irregularity of such a nature as to
make it impossible to separate the legal votea from the illegal ones.
“In the third place, it is to be noticed that, besides, 30 filled-in ballots
were found in the ballot boxes, none of which ballots pertained to any elector;
22 of them were written in different proportions by the inspectors and 8 by
electors; all of them were duly marked for the purpose of their rejection. There
is the peculiarity that on one of these ballots, that numbered 353, there
appears the imprint or trace left in writing the sign X as a mark in the middle
of ballot No. 352, thus clearly showing that the ballot No. 353 was under the
ballot No. 352 when this mark was written.
“No explanation whatever is given in regard to the existence of these
ballots, either in the record of the proceedings by the board of inspectors, or
in the evidence produced by the protestee, and the court finds no fact, detail,
or circumstance which may justify the existence of such ballots so filled-in,
marked, and rejected.
“Why it is that the inspector Francisco Relos had 18 ballots left over (Nos.
352, 353, 354, 355, 356, 357, 358, 359, 360, 361, 362, 363, 366, 367, 368, 370,
371, and 372), Eligio Calleja three (Nos. 343, 348 and 351), and Potenciano
Orasa one (No. 346), all filled in or prepared, is what the court proposes to
ascertain, for, if it does not constitute fraud, it is undoubtedly an
irrefutable proof of fraud.
“The same inquiry will be made in reference to the eight other extra ballots
filled in or prepared by different electors and which are numbered 344, 345,
346, 347, 349, 350, 365, and 369.
“No record was kept of the spoiled ballots in the proper column or in any
other place of the registry list, opposite the name of the respective voter, as
provided in section 551 of the Administrative Code, 1916.
“It should be kept in mind that these 30 ballots were rejected by the
inspectors for the very reason that they were left over; and that they could not
correspond to any registered elector because their numbers were completely
crossed out.
“Apparently the inspectors of Bato, or some one of them at least, meant to
say, in speaking of these 30 marked ballots, that they were duplicates, because
in each case the elector amended his vote, and it was thought necessary to mark
the changed ballot in order to invalidate it.
“Accepting this as true, the result would, be that 18 illiterate voters
assisted by inspector Relos, 3 by inspector Calleja, 1 by Orasa, and 8 electors
who could read and write, amended their votes, immediately after their ballots
had been filled in, each requesting for the purpose a second ballot. Now then,
those amendments either were made at the elector’s own will, or they were not;
if it be the first, in the case of the illiterate voters, it was either because
the elector made a mistake in dictating the names of his candidates or in
specifying the respective offices, or because the inspector deliberately
committed such mistakes and the elector would not accept the ballot as his own,
immediately asking for another one.
“The court cannot believe in the supposed error on the part of the illiterate
voter or of the voter who could read and write, committed in dictating or
writing the names of his candidates. There is no evidence sustaining such
supposition. If an amendment or change of his vote was agreed upon, it was the
result of the effective electioneering which must have been carried on during
the time the ballot was being written, or immediately after it had been written
upon and its contents had become known, for such is the conclusion derived from
some of the evidence taken.
“What most likely occurred with respect to the 22 ballots written by the
inspectors is that the latter had them already prepared for the illiterate
electors but calculated so poorly the number there might be of such Voters that
several of the ballots were left over and they had to mark them as spoiled.
These ballots so prepared beforehand were assembled together one on top of the
other and were arranged in this way when were thrown out as spoiled; this fact
explains that the imprint or trace of the mark placed on Ballot No. 352 became
fixed on the next ballot below it, No. 353; it is also an explanation of why the
inspector Orasa had only one ballot left over; of all the inspectors it was he
who was able to dispose of the largest number (92) of previously prepared
ballots.
“In one case or the other, it may be clearly seen that it is a matter of the
same illegality under different forms; consequently the existence of the 30
perfectly good but deliberately marked ballots, if not in itself a fraud, is
another manifest proof that fraud was committed or attempted to be
committed.
“That all these ballots excepting one are for the protestee, does not alter
the conclusion drawn, inasmuch as it is indifferent whether the vote was amended
in regard to one office or to another. The fact is that the elector was unduly
influenced or obliged by electioneering to make a change in one or more of his
candidates. Ballot No. 364, the only one of those marked as spoiled, that is,
for Andres Garchitorena, must have been substituted by another already written
by an inspector, without the knowledge or the consent of the elector who filled
in the substituted ballot.
“In the fourth place, let the following facts be observed, as disclosed by
the returns made by the inspectors and by the recount effected by the
commission.
“According to the returns, the results of the election for the office of
governor is as follows:
Crescini………………………………………………………..
Garchitorena………………………………………………….
……………………………………………………..
Cea……………………………………………………………….
votes………………………………………………………..
“According to the recount and the ballots themselves :
only…………………………………………
………………………………………………
candidates…………………………………………
“It may be admitted that it is very eommon and easy to err in making a
canvass of votes, and that the counting of 292 instead of 289 ballots, 32
instead of 33, and 18 instead of 20, may have been done through mistake; but it
is a very conspicuous and noticeable fact that, with respect to Manuel Crescini,
the inspectors should have made the mistake of awarding him more votes than he
should have had, while on the other hand, with regard to the other candidates,
who certainly received but very few votes, the contrary should have occurred. If
this is not fraud, it is nevertheless circumstantial evidence of it or
sufficient proof that the inspectors of Bato were very prone to commit mistakes
in favor of Crescini.
“Having reached the conclusions above set forth, to wit: that the election
inspectors of Bato committed frauds of considerable importance in the
preparation of the ballots, and that they obtained, by electioneering and by
other still more censurable means, changes in the votes of several electors;
that the legal hours were not observed, the voting being prolonged four hours
beyond the time prescribed by law for the closing of the polls, during which
period a considerable number of electors cast their votes; and that the
inspectors did not enumerate successively each elector who voted, on account of
which omission it is impossible to separate the ballots illegally cast from the
good and unchallenged ones; the court does not deem it necessary to enter upon
further considerations with regard to the other questions brought up in the
motion and in the evidence, bearing upon irregularities with reference to the
polling place, the voting booths, the procedure adopted by the inspectors with
respect to the electors who were awaiting their return, the watchers, and the
canvass of the votes.
“It is enough to say that there is some evidence which shows that the polling
place and voting booths at Bato and the procedure adopted by the election
inspectors are really very far from being perfect enough to serve as models or
at least to be in accord with the letter and spirit of the law.
“It is not unknown to the court that the electors of the municipality of Bato
are in their great majority, if*not nearly all of them, partisans of the
protestee Manuel Crescini, and that many of them, principally the illiterates,
went to the polls to cast their votes in the most honorable manner, and that
they had absolutely no hand whatever in the frauds, illegalities, and
irregularities above referred to,
“The court would have the votes of the honest electors of Bato respected for
the reason that they constitute the expression and fulfillment of their right of
suffrage, and would not deprive anybody, though it be the most humble and
illiterate citizen, of the enjoyment of said right; but it is found in such a
situation that his desires to give effect to the suffrage of the electorate of
Bato are shattered in the face of barriers, rocks, and boulders scattered during
the elections, in the shape of irregularities, illegalities, and frauds, by the
election inspectors.
“The result is that the elections held in the sole election precinct of the
municipality of Bato should be repudiated.
“The measure is extreme and severe, as no one will doubt, but in view of all
the proven facts, of the law and legal doctrines applicable, and of all the
circumstances of the case, the court is fully convinced that it is the only just
one that should be adopted.
“Adopting in this case of Bato the principle or rule according to which the
fraudulent and illegal votes should be rejected, separating them from the good
ones to give the latter force and effect, practically the same result would be
reached, inasmuch as the 180 ballots written by the inspectors for illiterates,
the 92 ballots illegally cast outside of the legal hours, and the 135 ballots of
unqualified electors, the legality of which is at least doubtful (the court has
not gone into any lengthy discussion concerning them, but there is proof that
some of them are in fact illegal ballots) aggregate more than the total of all
the votes cast in the precinct of Bato.
“In conclusion, the court holds that the election held in the sole and only
precinct of Bato is null and void, rejects the returns, and takes no account of
them in the general canvass of the votes cast in the entire province.
“Municipality of Buhi.
“With respect to this municipality the motion presented alleges the following
grounds, to wit:
” ‘(a) That the election inspectors of this precinct, Gregorio Ricafranca,
Jose Crescini, and Dalmacio Amador, on the day of the general elections held on
the 6th of the present month, refused to admit to the polls the petitioner’s
watchers and the candidates who requested permission to witness the voting, and
permitted them only to be present at the canvass of the votes, at a distance of
more than three meters in front of the table occupied by the board where they
were stationed by said inspectors, notwithstanding that such watchers and
candidates had requested to be placed behind the table and at a reasonable
distance therefrom to enable them to see and read the ballots to be counted; so
that it was impossible for them to see or to read the ballots that were being
read, or to observe their state and condition.
” ‘(b) That, at the commencement of and during the voting, said inspectors
denied the public access to the polling station and to any place within a radius
of 30 meters therefrom, with the exception of the electors who went there to
vote; the latter were called, six at a time, from the 30 meter line where they
had assembled and from there went pellmell, each trying to get ahead of the
other.
” ‘(c) That the aforementioned inspectors did, within the polling place and
the voting booths, unduly influence the electors, threaten, and force them in
order that they might vote for the candidate the inspectors favored, the herein
respondent Manuel Crescini.
” ‘(d) That when electors who could read and write entered the booths to
vote, said inspectors followed them within to see them prepare and be present
during the preparation of their ballots, to influence, threaten, and force them
to vote for the respondent; and whenever they saw that the candidate voted for
governor was the herein petitioner, they immediately spoiled the ballot,
crossing it with a pencil, and forthwith substituted it by another ballot,
warning the elector that he should vote for the respondent.
” ‘(e) That said inspectors prepared the ballots of the illiterate electors
without inquiring of or consulting them as to whom they desired to vote for
governor, and whenever any of them presented a ticket or a list of their
candidates, said inspectors improperly influenced, threatened, and forced them
to vote for the respondent or, in the case of electors who could not read at
all, entirely disregarded their wishes.
” ‘That the electors who were influenced by threats, as stated in this and in
the preceding paragraphs (c), (d), and (e), are Luciano Ibanita, Dimas Noy,
Eleno Penaranda, Santiago Fabricante, Lorenzo Penaranda, Bruno Santo Tomas, and
others at this moment unknown to the petitioner.
” ‘(f) That when some illiterate electors went to vote, they received from
said inspectors ballots that had been previously prepared or filled in.
” ‘(g) That said inspectors themselves, after preparing the ballots of the
illiterates, folded them without first showing their contents to said voters,
and immediately thereupon ordered the latter to leave the polls; so that these
voters could neither see the contents of their ballots nor know whether the same
were or were not placed in the ballot box.
” ‘(h) That said inspectors prepared the ballots of the illiterate voters and
of those physically unable to write, without first requiring of and
administering to them the oath prescribed by law.
” ‘(i) That, because of the fact that the aforesaid inspectors would not
permit the petitioner’s watchers and those of other candidates to see, read, and
observe the ballots which said inspectors were counting, the petitioner
believes, and so alleges, that said inspectors fraudulently read the name of the
respondent in the space provided for the entry of the name of the candidate ‘for
the office of provincial governor in some ballots, although in them and in said
space there appeared written the petitioner’s name or that of some other
candidate.
” ‘(j) That said inspectors received from the municipal treasurer of the
aforementioned municipality of Buhi 467 blank ballots, and as only 350 electors
voted and up to this date said inspectors have not delivered to the municipal
secretary of said municipality the extra or unused ballots, they have manifestly
violated the law.
” ‘(k) That each one and all of said inspectors were and are ardent
partisans of the respondent, and prior to the elections worked and electioneered
for him, taking undue advantage of their positions as such election
inspectors.
” ‘(l) In this precinct no guard rail as required by law was constructed and
which should have been placed at least two meters from the ballot box and from
the voting booths; the sides of these booths were closed with white cloth, and
cloth hung on the side of the entrance served as doors, in such manner that it
could easily be seen how the electors prepared their ballots.’
“The proofs presented by both parties with respect to thisf municipality are
comparatively numerous, an’d divers questions of fact have been brought up
therein, but those that the court considers to be the principal ones, upon the
determination of which the judgment to be rendered in this case depends, are
comprised in the following propositions, to wit:
“1. Whether or not the election inspectors of Buhi worked and electioneered
in behalf of the protestee during and prior to the day of the elections, within
and without the polling place.
“2. Whether or not said inspectors, availing themselves of their office and
making use of censurable means, worked, to the end that the electors capable of
reading and writing should vote, in filling out their ballots for the candidates
supported by these inspectors.
“3. Whether or not said inspectors defrauded or attempted to de,fraud
illiterate electors of their votes.
“4. Whether or not they failed to comply with the requirement to administer
the oath of incapacity to the illiterate voters before assisting them in the
preparation of their ballots.
“5. Whether or not on the canvass they fraudulently read certain ballots in
order to favor the protestee.
“Having examined these propositions one by one in the light of the evidence
produced, principally the documentary, and of the ballots themselves, the court
finds with displeasure that the preponderance of such evidence rather lies on
the affirmative side of the propositions than on the negative, with the
exception of Proposition No. 4.
“(1) There can be no doubt that the election inspectors of Buhi did in fact
work and electioneer in behalf of the protestee, during and prior to the
elections, both within and without the polling place. The evidence on this point
is quite clear and conclusive, but justice requires the statement that not all
the three inspectors worked and electioneered to that end with the same activity
and to the same extent.
“(2) Properly speaking, there is no complete and conclusive evidence that the
three election inspectors of Buhi, availing themselves of their office and
making use of censurable means, did work to the end that the electors capable of
reading and writing would vote, in filling out their ballot, for the protestee
Manuel Crescini for the office of provincial governor; but there is positive and
decisive evidence that the inspector Jose Crescini did proceed in that manner,
although it was only in the case of a few electors.
“Such activity on the part of Jose Crescini is shown in the most evident
manner by the ballot cast by Lorenzo Penacerrada (Exhibit A), those of Santiago
Fabricante (Exhibits B and C), that of Balbino San Luis (Exhibit E), those of
Felipe Estanislao (Exhibits F and G), and by the ballots Nos. 185, 195, 198,
199, and 249.
“The first of these ballots, Exhibit A, is one that was smashed by the
elector Lorenzo Penacerrada. While he was filling it out in the booth, Jose
Crescini entered therein and, on seeing him vote for another candidate,
threatened to spoil his ballot unless he voted for the protestee; so Penacerrada
in despair smashed his ballot, wherefore it was thrown out as spoiled.
“Santiago Fabricante had two ballots (Exhibits B and C) because the first one
was spoiled by Jose Crescini by erasing or trying to erase the name of
Engracio Imperial, candidate for governor, immediately whereafter he handed to
Fabricante a second ballot which precisely was filled in by himself, as regards
the office of governor, allowing this elector to complete it afterwards or write
in it the names of the candidates he choose for the other offices.
“The ballot Exhibit E, cast by Balbino. San Luis, was torn in its upper edge
because of Jose Crescini’s attempt to snatch it away from the voter in order to
see its contents, and there was resistance on the latter’s part.
“Felix Estanislao is another elector who had two ballots (Exhibits F and G),
for, after he had duly filled in the first one and when he was about to cast it
into the ballot box, the inspector Crescini obliged Estanislao to show it to him
and, having seen that Manuel Crescini was not voted for for governor, the
inspector had the ballot changed for another and spoiled the first one by the
superscription of other letters or names over those written in all the spaces
allotted for the names of the candidates for the offices of municipal president
and councilors. (See Exhibits f-1, f-2, f-3, and f-4, which are photographs
taken of the ballot Exhibit F.)
‘This evidence shows in an indubitable manner that one of the inspectors,
Jose Crescini, did avail himself of his office and, making use of censurable
means, did work to the end that some electors capable of reading and writing
would, in filling out their ballots, vote for the protestee, Manuel
Crescini.
“Furthermore, these facts are proven by the oral evidence contained in the
record; but, as the court deems the documentary evidence sufficient and very
convincing, he sees no need of a more or less longer discussion of said oral
evidence.
“(3) The court does not hold it to have been proven that the inspector
Gregorio Ricafranca defrauded or attempted to defraud illiterate electors of
their votes. He is in doubt with respect to the inspector Dalmasio Amador, but
is fully convinced that the inspector Jose Crescini not only attempted to
defraud illiterate electors of their votes, but actually did defraud some of
them.
“As in the discussion of the preceding proposition, the court gives
preference to the documentary evidence, and particularly to the ballots
themselves; the latter therefore will be principally referred to in connection
of course with all the other proofs adduced.
“The three inspectors, Gregorio Ricafranca, Dalmacio Amador, and Jose
Crescini, identified 34, 28, and 44 ballots as having been prepared by them
respectively for illiterate voters. The handwriting expert who testified in
behalf of the protestant identified 8, 21, and 20 other ballots as also having
been written respectively by the same inspectors, excepting some two or four of
them which ballots the latter afterwards admitted that they did write.
“Of the 34 or 42 ballots written by the inspector Gregorio Ricafranca for
illiterate electors, not a single one of them was for the protestant Andres
Garchitorena; they were all for the protestee Manuel Crescini. This fact perhaps
might arouse suspicion against the honesty of this inspector, but the court
finds no positive evidence to warrant such a suspicion.
“There was one witness, Nazario Saballa, 54 years of age, who testified
having been assisted by Gregorio Ricafranca and that he was not questioned as to
whom he was going to vote for, but that his candidate for governor was Andres
Garchitorena. However, the court does not give much importance to the testimony
of this witness, inasmuch as on cross-examination, when he was asked why he had
not protested against such procedure on the part of the inspector, he replied
that he did not do it for the reason that it was the first time that he had
voted, and when afterwards questioned as to how old he was, he made no reply.
Evidently he saw that he was caught and recognized that the reason he gave was
inadmissible, he being, as he was, 53 years of age, which age he wished to
conceal by his silence. Besides, it was not proven that it was the first time he
had voted, nor why he was not a voter in previous elections.
“With respect to Dalmacio Amador, although there is some evidence against
him, the court however considers it insufficient to convict this inspector of
fraud beyond all doubt.
“Five illiterates testified that they were electors who supported the
protestant Andres Garchitorena and that they were assisted by Dalmacio Amador in
the preparation of their ballot. Of the ballots written by this inspector, only
three are found in favor of the protestant; there is therefore a difference of
two. Notwithstanding, the court cannot consider this as conclusive proof that
Dalmacio Amador defrauded illiterate electors of at least two votes, inasmuch as
the witnesses presented as such are in fact illiterate and extremely ignorant
and their testimony is inconsistent in several of its details and does not
convince the court beyond all reasonable doubt.
“It is a different matter as regards Jose Crescini, with respect to whom the
evidence is conclusive. From an examination of the ballots prepared by this
inspector for illiterate electors, the court finds that of the 64 ballots
written by him, in so far as the office of municipal president is concerned, 50
are for Infante, 4 for Trinidad, 1 for Nobleza, and 9 are in blank; that two of
the ballots for Infante (Nos. 192 and 208) show erasures to have been made on
them, it being noticed however at a simple glance that the name of Angel
Trinidad or that of Alejandro Nobleza was erased and that of Hilario Infante was
written in place thereof; that in two of the four ballots for Trinidad (Nos. 209
and 225) the latter’s name was written very faintly, only the slightest pressure
being applied in writing it, just as was done with respect to the other
candidates voted for in the other ballots, with the manifest purpose of enabling
the writing easily to be erased and substituting in place of it the name of
Hilario Infante, as was done in ballots Nos. 192 and 208; and that, of the 9
ballots in blank five of them, Nos. 187, 190, 193, 214, and 219 bear the name of
Angel Trinidad on the second of the lines intended for the names of members of
the council, while in two other ballots, Nos. 179 and 227, said Angel Trinidad
was voted for for municipal vice-president, notwithstanding that he was not a
candidate for either office; all of which clearly shows that it was Crescini’s
intention to take away from or spoil votes for Angel Trinidad by leaving in
blank the space left for the insertion of the name of the candidate for the
office of municipal president, and in other cases by not writing the name of
said Angei Trinidad anywhere on the ballot, and in still other ballots by
placing it in the space allotted for the candidate chosen for vice-president,
and in the rest, in that intended for the name of member [of the provincial
board].
“It is true that these proofs refer principally if not exclusively, as may be
seen, to offices other than that of provincial governor, the subject matter of
this protest; but it is also true that they show at least the isolated fact that
the inspector Jose Crescini defrauded or attempted to defraud illiterate
electors of their votes; and it is likewise true that the parties in this case
stipulated that the evidence adduced in the matter of the contested municipal
elections of Buhi should have its due bearing on this contested provincial
election, in so far as the legality or illegality of the manner of conducting
said municipal , elections is concerned.
“Moreover, that Jose Crescini did the same with respect to the office of
provincial governor is disclosed by the testimony of twelve witnesses who
testified that they intended to vote for the protestant, Andres Garchitorena,
and that they were assisted by Jose Crescini in the preparation of their
ballots; however, of the 64 ballots written by this inspector, not a single one
of them is for Andres Garchitorena.
“(4) Notwithstanding the testimony of some witnesses to the contrary, the
court believes that the election inspectors of Buhi did not fail to comply with
the requirement to administer the oath of incapacity to the illiterate electors
before assisting them in the preparation of their ballots or, in other words,
that they endeavored to comply, and did comply, with said legal requirements.
“
“The documents Exhibit I, concerning the Buhi elections, presented by the
protestant himself, so shows.
“But it is contended that this document is false, from the fact that the
words ‘and he took oath before the board, as I, the secretary, so certify/
recorded at the end of each entry, were written subsequently, that is to say
that the contents of said document was altered by the addition of the
above-quoted words at some time subsequent to the preparation of the
document.
“It is true that such alteration or addition is manifest, principally on the
first pages, but this, far from proving the falsity of the fact, that is, that
the assisted elector did not take oath before the board, precisely evidences the
contrary, namely, that he actually did what is stated he did in the added words
‘and he took oath before the board.’
“It is a known fact, and one not discussed, that Exhibit I is one of the
several documents which were found in the ballot box and afterwards removed
therefrom. It is also an uncontroverted fact that the ballot boxes of Buhi were
not violated, and therefore the documents which they contained were found, as
they should have been, in the same condition in which they were when the ballot
boxes were closed immediately after the elections.
“If this is so, we can clearly grasp the explanation of the reason for the
subsequent addition of the words ‘and he took oath before the board, which I,
the secretary, so certify,’ and it is that at first the secretary did not record
this fact, although the oath was administered, but later, on the revision of
this list or statement of assisted illiterate electors, it was deemed advisable
and necessary to make record of the fact, as was done. This explanation is in
some manner corroborated by the context of the last entries. In these it is seen
that the names of the illiterate voters were successively put down without, at
the time, writing in what follows them, and this was done undoubtedly to enable
the registry of the names of all the electors who requested assistance of the
inspectors; and as soon as the secretary had some time at his disposal for the
purpose, he continued the entries until he had finished them, and also corrected
the first entries by adding the words ‘and he took oath before the board, which
I, the secretary, so certify.,
“And why did he add these words? Without any doubt whatever, it was because
the explanations above given are the facts that actually occurred, as confirmed
by the entries made on the last pages where the fact of the administration of
the oath is not recorded as an addition, but as an integral part of the text of
the respective entry.
‘The supposition on the part of the protestant that said addition was made
after the initiation of the proceedings in this election contest, is unfounded
in view of the fact that the ballot boxes were not tampered with.
“Furthermore, for the very reason that the document Exhibit I is not false,
it necessarily follows that the apparent inaccuracy of the same with respect to
the number of illiterates assisted is not actually the fact, and this feature
will be examined later on. The inaccuracy lies ,on the part of the inspectors
who wrote ballots for electors whom they supposed were illiterates, while they
were not. In fact the inspectors admitted having written 156 ballots—152, if
some four are excepted, the preparation of which was not thoroughly
explained—and, as may be seen, this number exceeds by 59 or 55 the number of
electors who were assisted, according to Exhibit I.
“It is advisable, however, to consider this difference separately, that is,
to distribute it among each one of the three inspectors. According to the list
of illiterates, Exhibit I, the inspector Gregorio Ricafranca assisted 40,
Dalmacio Amador 18, and Jose Crescini 39, which numbers, compared with those of
the ballots prepared by them, to wit, 42, 50, and 64 respectively give the
following differences: 2, 32, and 25.
“With respect to Gregorio Ricafranca, the difference is rather apparent than
real, for, taking into account what has already been said of this inspector in
the discussion of the preceding propositions and considering also that no
thorough explanation was made of the manner of preparation of some two ballots
which the handwriting expert said were written by Ricafranca, aside from the
fact that the latter cast one ballot of his own, it will be seen that there is
no such difference, and that as above said the statement of the illiterates is
correct.
“Another proof of the correctness of the list Exhibit I is the very
inaccuracy of the ballots, in so far as they concern the inspectors Dalmacio
Amador and Jose Crescini, inasmuch as the differences are 32 and 25 respectively
or, more properly, 31 and 24 (the illiterates assisted by them and whose names
do not appear on the list Exhibit I), and such differences are too large to
allow of their being satisfactorily explained as the result of an error or
neglect on their part and that of the poll clerk.
“Taking due account of the frauds that were proven to have been committed by
the inspector Jose Crescini, the court does not hesitate to affirm that the 24
ballots supposed to have been cast by illiterates are just so many fraudulent
votes.
“With regard to Dalmacio Amador, the court has stated that he doubted whether
this inspector did or did not defraud illiterate electors of their votes; but in
view of so great a difference (31) between the ballots written by him and those
written by the electors whose names appear on the list Exhibit I and who, as
shown by the latter, were assisted by him, the court is obliged to hold that
these 31 votes are at least more fraudulent than legal and their admission is
unwarranted.
“And said fraudulent ballots were without any doubt cast by these inspectors,
in favor of the protestee Manuel Crescini inasmuch as the ballots found to have
been cast for the protestant Andres Garchitorena, from among those prepared by
Dalmacio Amador, are insufficient ‘”even to cover the number of votes of the few
illiterate electors who stated that they voted for Garchitorena. There is no
iieed to speak of the ballots written by Jose Crescini; they are all for Manuel
Crescini; none of them are for Andres Garchitorena. Consequently, if a deduction
of these ballots is to be made as should be done they should be deducted from
the votes awarded to Manuel Crescini.
“As gathered from the decision by the Supreme Court of these Islands,
rendered in the case of Gardiner vs. Romulo (26 Phil. Rep., 521) it appears that
all the ballots prepared by the inspectors who betrayed the confidence reposed
in them should be rejected. But it should be noticed that in that case there was
a circumstance w^ich made it impossible to determine what votes were fraudulent,
because, as stated in that decision, the influence of the circumstance referred
to was widespread, so that it was impossible to separate the good votes from the
bad.
“The decision above mentioned cites the following doctrine laid down in the
case of Martin vs. McGarr (27 Okla., 653) :
” ‘While a contestant in an election may always object to the counting and
consideration of fraudulent1 or illegal votes, yet the reception of the same
will in no instance result in the avoidance of the election except where the
entire poll is so tainted that the good votes cannot be separated from the bad,
and it is impossible to ascertain for whom the majority of the valid ballots
were cast. The general rule obtaining throughout all the States of the Union is
that an election is not to be held invalid except as a last resort, the correct
doctrine being announced by Judge Brewster, in the case of Batturs vs. McGary (1
Brewster, 162), as follows: “The courts have the power to reject an entire poll,
but only in the extremest case—as where it is impossible to ascertain the true
vote. Impossibility is the test.”‘
“In the present case, as the court deems it possible to separate the good
votes from the bad, he does not see the need to resort to the extreme measure of
rejecting or throwing out all the ballots prepared by these inspectors, and
therefore chooses to follow the rule enunciated in the case of Martin vs.
McGarr.
” (5) That in the canvass of the ballots some of these were fraudulently read
by the inspectors of Buhi for the purpose of favoring the protestee is disclosed
merely by examining the returns and comparing them with the result obtained by
the recount.
“The inspectors must have read 280 ballots in favor of the protestee,
inasmuch as the returns show that the latter was awarded 280 votes; but
according to the recount there were no more than 270 for this candidate,
including the 67 challenged. Were it a difference of but two or three votes, the
explanation might be accepted that such discrepancy came from an error or an
involuntary oversight; but there are ten votes, and it is hard to believe that
the inspectors were mistaken ten times and each and every time in favor of the
protestee.
“However, it is immaterial whether the number be large or small; its mere
existence is enough to prove that the inspectors, in making the canvass,
fraudulently read certain ballots for the purpose of favoring the protestee.
“Moreover, it will be noticed what kind of an error it is, if account is
taken of the fact that these inspectors also made mistakes with respect to the
votes obtained by the protestant Andres Garchitorena, but they did just the
opposite by awarding him 12 votes less than those he obtained, for according to
the return made by said inspectors, he had only 39 votes, while this candidate
was voted for in 51 ballots.
“As stated hereinabove, and as may be seen in the part of the motion
transcribed at the beginning of the preceding considerations concerning the
elections at Buhi, various other irregularities were charged regarding which
evidence was given at the trial, among them those in reference to the conditions
of the voting booths, to the conduct observed by the election inspectors towards
the voters while the latter were awaiting their turn, and to the watchers,
principally during the canvassing of the ballots.
“The court also finds that these allegations of the motion are in a certain
way proven; and though the record disclosed no positive proof of frauds
committed, these irregularities would contribute, as they do to a large extent,
to fortify the idea of the existence of frauds suggested by the illegalities
above enumerated.
“Coming now to the recount made of the ballots cast for the candidates for
the office of provincial governor in the general elections held in the
municipality of Buhi on June 6, 1916, for the purpose of separating the legal
votes from the fraudulent and inadmissible ones after giving due regard to the
objections formulated by the parties, the court holds that the following votes
should be, as they hereby are, awarded to the herein protestant and protestee,
excluding the other candidates voted for:
“According to the recount made by the commissioner appointed, 270 votes were
obtained by Manuel Crescini and 51 by Andres Garchitorena.
“From the 270 votes for Manuel Crescini, the following should be
deducted:
31 votes written by Dalmacio Amador for illiterates whose names are not on
the list.
24 votes written by Jose Crescini for illiterates whose names are not on the
list.
12 votes of electors assisted by this inspector, which do not appear among
the ballots.
6 votes, ballots Nos. 185, 195, 198, 199, 249, and Exhibit C, in which the
name of the candidate for the office of governor was written by Jose Crescini,
and those of the candidates for the other offices by the elector.
1 vote, ballot No. 117, because it bears the name of Crescini in two
spaces.
1 vote, ballot No. 241, in which Crescini is voted for, but not for
governor.
1 vote, No. 246. The space allotted for the name of the candidate for
governor was left in blank.
1 vote, No. 247, M. C. only.
2 votes, Nos. 255 and 322. Illegible.
3 votes, Nos. 248, 253, and 263. Not for Crescini for governor.
1 vote, No. 251. Illegible and does not show the name of any candidate for
governor.
1 vote, No. 266. Marked. (All the other ballots objected to are admitted.) 84
votes.
“Consequently, Manuel Crescini is awarded 270 votes less 84, that is, 186
votes.
“To the 51 votes for Andres Garchitorena there is to be added one (ballot No.
321), which was cast for him and contains no flaw whatever. This candidate,
therefore, is awarded 52 votes.
“Municipality of Calabanga.
“The following facts are recited in the motion, in connection with the
elections held in this municipality of Calabanga :
” ‘(a) The polling place of this municipality was situated pn the upper floor
of the municipal building, and to reach it high stairs had to be climbed. The
voting booths were not entirely closed on their four sides, as the law requires
they shall be; so that any person inside the polling place could see everything
that was done in said booths. No guard rail as provided by law was erected in
the polling place.
” ‘(b) About the month of last April, the municipal council of this
municipality of Calabanga duly appointed Manuel Sabido, Justo Bordado, and Ramon
Malanyaon as election^ inspectors. As Justo Bordado was not a partisan in favor
of the respondent’s candidacy, his appointment was vigorously opposed by the
latter and to the extreme that Governor Fuentebella, one of the principal and
most rabid supporters of the respondent’s candidacy, suspended from office the
municipal president and a majority of the municipal council of Calabanga, solely
because said municipal officials favored the appointment of i Justo Bordado as
election inspector. Later on this appointment was judicially brought into
question, and the justice of the peace court of this capital, delegated to try
the case in lieu of the Court of First Instance, sustained and affirmed the
legality of said appointment in its decision under date of April 27th last,
which decision has not been appealed.
Therefore Justo Bordado took possession of his office as election inspector
for Calabanga and acted as such in the five sessions of the board of inspectors,
held for the registration of voters and for the inclusion and exclusion of
voters, as required in each case, pursuant to law. But the respondent, in his
eager desire to have all the election inspectors of Calabanga on his side so
that he might better carry out his fraudulent plans on the day of the election,
did not stop until he saw Justo Bordado separated from his office and
substituted by one of the respondent’s partisans. In fact, on the afternoon of
the 5th instant,the day before tne election, the respondent availing himself of
his confederate and protector, Governor Fuentebella, threatened to prosecute
civilly and criminally said Justo Bordado unless he resigned from office, and
the latter, thus intimidated, signed his resignation which had previously been
prepared by Governor Fuentebella who was himself the bearer. The reason Bordado
gave for resigning was ill-health, but in fact he was not ill. As soon as this
resignation was signed, Governor Fuentebella forthwith called a special session
of the municipal council of Calabanga for the purposes of accepting the
resignation and appointing, as in fact said council did appoint that same
afternoon one Toribio Felipe, a partisan of the respondent, in substitution of
the resigning inspector. By these base intrigues the respondent accomplished
what he so ardently desired, to wit, that all the inspectors of Calabanga be
from among the members of his own political party.
” ‘(c) That the election inspectors Toribio Felipe, Manuel Sabido, and Roman
Malanyaon, and the poll clerk of the board of inspectors, called Valeriano Pron,
had in their possession, on the day of the elections, official ballots that had
been prepared and filled out beforehand with the respondent’s name in the space
reserved for that of the candidate for the office of provincial governor, which
ballots were by deceitful means handed to a large number of illiterate electors,
partisans of the petitioner and of the respondent’s other rivals, in order that
such ballots might be deposited in the ballot box, as they were in fact and were
counted for the respondent in the canvass of the votes.
” ‘(d) That said election inspectors, acting fraudulently and deceitfully,
marked the ballots of the electors who, being illiterate or physically
incapacitated from writing them themselves, solicited their assistance and did
mark such ballots without consulting the will of said electors as to what
candidates they intended to vote for; whereby many votes were obtained for the
respondent which should have been for the petitioner.
” ‘(e) That said election inspectors including the poll clerk were, during
the whole day of the election, carrying on election propaganda in behalf of the
respondent within the polling place, soliciting from the electors who went to
the polls their votes for the respondent, and threatening many of such electors
with imprisonment and other future vengeance if they voted for the petitioner,
and, not content with such electioneering work, said inspectors entered the
booths to see what the electors who could read and write wrote on their
respective ballots, thus scandalously violating the secrecy of the ballot. The
names of the electors so unduly influenced are Baldomero Rojas, Antonio Asog,
Bonifacio de los Santos, Pablo Estoller, Higino Migico, Narciso de los Santos,
Mariano Relose, Santiago Ferrer, Salvador Malolot, and there are other names
unknown to the petitioner at the present time. The election inspectors also
addressed the following threat to the electors who were present at the polls:
“Let whoever wishes to go to jail have tickets for Garchitorena.”
” ‘(f) That many ballots were deposited in the ballot box without the
presence of the electors who prepared them, for said inspectors obliged such
electors to go out before said ballots were there deposited.
” ‘(g) That said inspectors refused to show the electors, who solicited their
assistance because of illiteracy or some physical disability, the contents of
the ballots prepared by the former at the request of the latter.
” ‘(h) That said Governor Fuentebella, between 7 and 12 o’clock in the
morning of the day of the election, stationed himself at or near the door of the
polling place of Calabanga with a revolver at his waist and during all that time
asked of the electors going to the polls, and searched them for, the provisional
ballots of election propaganda—each of which ordinarily contains the ticket of
the candidate for whom the elector provided with one of such ballots intends to
vote—and every time that said Governor Fuentebella found ballots of this kind
containing the name of the petitioner, he would threaten the electors carrying
them with imprisonment and other persecutions and future acts of vengeance if
they persisted in carrying those provisional ballots to the polling place and
voting for the petitioner. Thereupon said inspectors would exchange said
provisional ballots for others containing the name of the respondent and would
especially charge these electors to vote for the latter, else great personal
misfortunes would befall them. Under such terrifying threats uttered by the
first authority of the province, many electors who otherwise would have voted
for the petitioner voted for the respondent.
” ‘(i) That Governor Fuentebella himself, on the day and night prior to the
date of the election, was in secret conference with said inspectors and poll
clerk in said town of Calabanga, and during the day of the elections was, by
means of letters, in continual communication with said inspectors and poll
clerk, and afterwards went up into the polling place and remained therein for
some time engaged in conversation with the inspectors.
” ‘(j) That said election inspectors did not permit the petitioner’s watchers
and those of the other candidates to witness the voting, and during the canvass
of the ballots said watchers were placed at such a distance from the table where
the counting was done that they could not see nor read the contents of the
ballots while these were being read by the inspectors; wherefore the petitioner
believes and so alleges that many of those ballots read as votes for the
respondent were really votes for the petitioner.
” ‘(k) That said election inspectors did not count the good ballots placed in
the ballot box before proceeding with the canvass of the votes, as the law
requires.
” ‘ (l) That many ballots found in the ballot box were not read by the
inspectors during the canvass of the votes, but were placed in the box of
spoiled ballots.
” ‘(m) That 351 electors voted in this precinct on the day of the election,
and notwithstanding, according to the returns, only 340 ballots were found in
the ballot box.
” ‘(n) That the illiterate voters or those incapable of writing voted without
previously having taken the oath of illiteracy or incapacity.’
“The court believes that he can greatly shorten the discussion and resolution
of the many questions brought up in the allegations above transcribed, by going
directly upon an examination of the main and most essential one of them, namely,
relative to the votes cast in the sole precinct of Calabanga.
“We shall begin with the votes cast by the illiterates.
“The inspectors themselves, called upon to pick out from among the good
ballots those they wrote, identified the following: the inspector Toribio Felipe
2 ballots, both for the protestee; Roman Malanyaon 50, 44 of which are for
Manuel Crescini and 6 for Andres Garchitorena; and Manuel Sabido 49, 35 for
Crescini and 14 for Garchitorena. The handwriting expert discovered 6 more
ballots, all for Crescini, as having been written by the inspector Sabido, and
the court believes that they were in fact; so that the total number of ballots
prepared by Sabido is 55. There are therefore 107 ballots that were written by
the three inspectors, including the three ballots of their own, so that 104 of
them must have been cast by illiterates. As to how many the latter were, if any,
is what cannot be determined.
“It is a fact proven by the absence of due certification and by the testimony
of the election inspectors themselves, that no list was made of the illiterate
and incapacitated voters who requested assistance and were assisted in the
preparation of their ballots. The board of inspectors and the poll clerk gave
not the slightest importance to this detail, nor did they care to inform
themselves as to whether or not there was need of such a list. It appears that
they did not care even so much as to trouble themselves in procuring and keeping
in the polling place a copy of the Election Law.
“In speaking here of the list of the illiterate electors, we refer to the
registry of the oaths taken by the incapacitated who were assisted by the
inspectors, which list according to law should be kept by the board and, after
the election, filed with the municipal secretary together with the other
election documents.
“An attempt has been made to convince the court that the absence of the list
was due to ignorance on the part of inspectors; that they committed that fault
or incurred such neglect in good faith; and that as to the rest they complied
with the requirement to administer the oath of incapacity to each elector who
solicited their assistance and did so before assisting them in the preparation
of their ballots.
“The court can give no weight to such statements. The acts performed by
public corporations and boards and by public officials should have as their
principal if not as their best and only proof their own records and their own
registers which according to law they must keep. In the instant case, the lack
of the record or register of the proceedings of the electoral board of
Calabanga, with regard to the illiterate electors, simply shows that actually no
such oaths, nor any at all like them, were either given or taken.
“And this is corroborated by the testimony of several witnesses, without
including the contradictory statements of the inspector Manuel Sabido and the
poll clerk Valeriano Pron.
“In the case of Manalo vs. Sevilla (24 Phil. Rep., 609), the Supreme Court
said:
” ‘Question 5: Should an illiterate or other voter, who, through physical
disability, is unable to cast his ballot without assistance, be permitted to
vote without first taking oath to his illiteracy or disability?
” ‘He should not. The provision of the Election Law relative to this matter is
as follows (sec. 22) :
” ‘ “A voter otherwise qualified who declares that he cannot write, or that
from blindness or other physical disability he is unable to prepare his ballot,
may make an oath to the effect that he is so disabled and the nature of his
disability and that he desires one or two of the inspectors named by him to
assist him in the preparation of such ballots. The board shall keep a record of
all such oaths taken which shall show the name or names of the inspector or
inspectors assisting the voter and file the same with the municipal secretary
with the other records of the board after the election. The inspector or
inspectors so named as aforesaid shall retire with the voter and prepare his
ballot according to his wishes. The information thus obtained shall be regarded
as a privileged communication.”
” ‘Under these provisions the oath of illiteracy or disability is a condition
precedent to the right to vote. To permit voters to receive assistance in
casting their ballots without any evidence as to their disability would be to
open the door somewhat to fraud, coercion, and intimidation and to remove to
some extent the secrecy of the ballot. This can not be permitted, and to that
end the oath must be taken before the elector may be allowed to cast his
ballot.’
“And in 15 Cyc, 367, it is said that—
” ‘A statute which provides that a voter shall take an oath of disability
before his ballot can be marked for him and deposited is mandatory, and a ballot
so marked without his declaration on oath being made is illegal and cannot be
counted.’ (In re Cusick, 136 Pa. St., 459, 10 L. R. A., 228, etc.)
“Besides, supposing it were true that the illiterate and incapacitated voters
assisted by the inspectors in the preparation of their ballots really did take
oath as to their incapacity, the mere fact of the lack of the list of such
incapable electors so assisted is fatal and is a sufficient reason for rejecting
their votes in the canvass or recount.
“In Villamor on Elections the following paragraphs [1100-1102] are quoted
from the judgment rendered by the Court of First Instance of Pampanga, in the
case of Arnedo vs. Liongson:
” ‘The evidence shows that an inspector of the election precinct of the
municipality of Candaba, province of Pampanga, wrote ballots in excess of the
number of electors assisted by him, and defrauded the latter in the expression
of their will, by writing other names instead of those indicated by them. In
view of this fraud, the court rejected the 92 ballots written by this inspector,
inasmuch as only 82 electors requested him to assist them in filling out their
ballots. Thirteen ballots from this precinct, written by three persons only,
were also rejected. (Arnedo vs. Liongson, of the Court of First Instance of
Pampanga.)
” ‘It was also discovered that an inspector of the election precinct of the
municipality of Magalang wrote 65 ballots, while only 61 illiterate voters
solicited his assistance in filling out their ballots, and 32 ballots written by
no more than eight persons were found in the ballot boxes. All these 32 ballots
as well as the 65 written by said inspector were for the respondent. The court
considered them as fraudulent and deducted them from the legal ballots.
(Id.)
” ‘Likewise, in the election precincts of the municipality of Arayat a larger
number of ballots was found to have been cast than that of the illiterate voters
who solicited the assistance of the inspectors; there were also 31 ballots
that had been written by not more than eight persons. All of the ballots first
referred to, aggregating 64, together with the 31 last mentioned, were rejected
by the court and deducted from the legal votes. (Id.)’
“In the case of Gardiner vs. Romulo (26 Phil. Rep., 521) it has been seen
that the Supreme Court made no comment on the doctrine laid down and adopted by
the lower court, to wit, that when there is a discrepancy between the list of
illiterates and the ballots identified as written by the inspectors for such
illiterates, all the ballots cast by the latter should be rejected.
“If the mere discrepancy between the numbers given in the list and the
ballots themselves may give rise, as it has, to the rejection of the votes cast
though the difference be not very considerable, then with all the more reason
should the ballots said to have been cast by illiterates be rejected when the
disagreement is as great as 104 to 0 (for the lack of the required list is
equivalent to zero).
“Furthermore, principally in so far as the list of illiterates is concerned,
these inspectors of Calabanga cannot plead the excuse of ignorance of their
duties, nor that, though careless, they acted in good faith. The appointment of
election inspectors was the subject of lively contest between the interested
parties, both before the municipal council of Calabanga and before the justice
of the peace of the provincial capital, acting as judge of the Court of First
Instance.
“If the rule, or doctrine, or practice spoken of by the author Villamor in
his work on Elections, par. 1117 [d], is that ‘in the exercise of the authority
to determine all questions relative to the regularity and legality of the acts
performed by election officers, the courts recognize the presumption that all
the officers and other persons charged with the conduct of elections, the
counting of votes, and the certification of election returns acted in conformity
with law, so long as the contrary be not specifically alleged’ it necessarily
follows that it must also be presumed that Ruch officers and other persons
charged with the conduct of elections know and are informed of the provisions of
law bearing on the subject; otherwise there would be no reasonable and legal
foundation for the presumption that they acted in conformity with the law.
“It is then presumed that these inspectors of Calabanga were informed of the
provisions of the law, at least in so far as their duties as inspectors were
concerned, and if they did not know those provisions they should have informed
themselves of them, as they had sufficient opportunity to do so, especially when
they were with Governor Fuentebella in the house of Guillermo Tordilla, a
candidate for municipal president, on the morning of the elections, or they
should have provided themselves with a copy of the Election Law and taken the
trouble to inform themselves of its provisions.
“They did nothing of this, nor did they pay any attention to the preparations
of the polling place, voting booths, and other things necessary for the
elections. They simply conducted themselves in accordance with their own whims.
These facts are disclosed by their own testimony.
“On the other hand, the record contains evidence which proves that all that
transpired with respect to the illiterate voters and the registration of their
oaths forms a part of a preconceived plan for improper election purposes.
“The 104 votes of alleged illiterate and otherwise incapacitated voters who
were assisted are declared fraudulent and should be rejected from the canvass
effected or from the recount to be made.
“The foregoing disposes of the allegations contained in paragraphs (c) (d),
(g), and (n) of the motion, in so far as concerns the votes “cast by
illiterates. An extensive discussion and separate ruling on each one of said
allegations is unnecessary, it being indifferent whether or not they have been
proven, inasmuch as in an affirmative case the result would be the same, namely,
the rejection of the 104 ballots in question.
“It should be said, however, that the court does not consider the fact proven
that, on the day of the elections, the election inspectors held official ballots
previously filled in with the name of the protestee written in the space
provided for the name of the candidate for the office of provincial governor,
and that such ballots were, through deceitful means, delivered to a large number
of illiterate electors— partisans of the protestant and of other candidates—to
be deposited in the ballot box.
“The corroborative testimony of Eulalio Daliba and other witnesses in regard
to the abovementioned feature is unworthy of credence, inasmuch as, aside from
its unlikeness and inconsistency in many of its main details, it was duly and
completely rebutted by the evidence adduced by the protestee.
“The inspectors could not have had these official ballots in their
possession, for the purpose of filling them in during the night prior to the day
of the election, inasmuch as the then municipal treasurer, charged with the
custody of said ballots, delivered them to the inspectors only on the very
morning of the elections, according to his testimony and as shown by the proper
receipt, which bears the date of June 6, 1916. (See Calabanga documents; Ballot
box.)
“Under the circumstances described by Eulalio Daliba himself, it is unlikely
that he could have seen and recognized the figure of the. eagle borne on the
back of the official ballots. The court is convinced that Daliba is a
professional witness, or that he lacks but little of being one.
“The evidence derived from the ballots brands as false the declarations of
Eulalio Daliba and of the other witnesses in corroboration, and shows the
groundlessness of the suspicions entertained by the handwriting expert, who
insinuated that the ballots filled in by the inspector Malanyaon appeared to
have been written all in the same place and on one single occasion.
“It is sufficient to say that Eulalio Daliba stated that the ballots which he
said he had seen in Tordilla’s house and are supposed to have been filled in by
Malanyaon, formed a pile or bundle more than one inch thick, from which he
concluded that there were one hundred or more of them. He also said that Manuel
Sabido counted the ballots that had already been written and announced that
their number was nearly one hundred; but only about 50 ballots written by said
inspector Malanyaon were found in the ballot box.
“If it is said in reply to this that the rest of the ballots, of the one
hundred or so to which Daliba referred, must have been written by the other
inspector, Manuel Sabido, who it is stated accompanied Malanyaon, then it is
very strange and significant that the handwriting expert should not have noticed
in the ballots written by Sabido the same peculiarities that awakened his
suspicions with reference to the ballots written by Malanyaon.
“The court must also hold that the facts set forth in paragraphs {d), (g),
and (n) of the motion, particularly in paragraph (n) wherein it is averred that
the illiterate voters or those incapable of writing voted without previously
having taken the oath of illiteracy or incapacity, were more or less fully
proven.
“As regards the allegations concerning the electioneering and abuses
committed against the electors who had or carried provisional ballots containing
the protestant’s name and the taking away of such ballots from the voters or
compelling them by threats to get rid of the same, the court finds that, though
these alleged facts be true, they differ a good deal from those relative to the
electioneering and threats referred to in the case of Gardiner vs. Romulo,
supra.
“In that case the then governor was one of the candidates for the same
office, and he and partisans of his were electioneering and, through threats,
changing provisional ballots within the 30-meter limit from the polling place.
In the instant case, although the governor now in office is accused, as Governor
Fuentebella was then, he did not do within the 30-meter limit, but outside
of it, what he is charged with having done; he did not electioneer in behalf of
the protestee, nor was it satisfactorily proven that he was Crescini’s exclusive
campaign manager; he simply belonged to the latter’s party, as did also the
other candidate for governor, Engracio Imperial, who was with Fuentebella on
that occasion; neither did he change provisional ballots containing the name of
the protestant Andres Garchitorena for those containing that of the protestee
Manuel Crescini.
“Moreover, with respect to the illiterate electors who, it appears, were
merely passive subjects of the acts attributed to Governor Fuentebella, their
votes should be deducted as previously said, for the reasons explained elsewhere
herein.
“It is also said that the inspectors and poll clerk electioneered and made
threats to illiterate voters within the polling place itself; but, from the oral
testimony produced in regard to this point, given by only a small number of
witnesses and contradictory or inconsistent in several of its principal details,
it cannot be legally concluded that these averments of the motion have been duly
proven beyond all doubt.
“In view of all the circumstances of the case, the court is inclined to
believe that the inspectors and poll clerk of this municipality were in fact
remiss in the discharged of their duty to remain absolutely neutral in the
contest waged by the several candidates; but in view of the fact also that the
evidence bearing on this point, aside from being contradictory and inconsistent
in several of its details, as we have just said, is that of witnesses naturally
partial and passionate, the court hesitates to declare that such facts are
absolutely true and that they had an influence over the result of the
elections.
“With respect to the strife over the appointment of inspectors, which is also
the subject of one of the grounds of the motion, the court finds that it was
carried on by and between the two candidates for municipal president, Guillermo
Tordilla and Felino Padilla, and that the protestant and the protestee were
entirely unconcerned therein, or that at least there is no evidence that either
of the latter took or had any part in the same.
“There are documents that speak for themselves, and the court prefers to
quote, with brief comments, the parts thereof pertinent to the present case.
“On February 29, 1916, the municipal council of Calabanga adopted its
resolution No. 26 (Exhibit E), the tenor of which is as follows:
” ‘Resolution No. 26.—The chairman brought before the council the
matter of the necessity of appointing three election inspectors and one poll
clerk, in accordance with Act No. 2045, in view o;f the nearness of the time for
holding the general elections for the present year, 1916. On motion by Councilor
Tordiall, seconded by the chairman, the following resolution was adopted: Be it
resolved: To proceed by secret ballot to the appointment of inspectors. After
the voting and the counting of the ballots (the chairman also voted) it was
found that Victorio Colera, Manuel Sabido, and Cirilo Sinogba had been chosen as
election inspectors, and Roman Malanyaon, poll clerk. Passed unanimously.’
“Felino Padilla, candidate for municipal president, petitioned the court for
the annulment of this resolution concerning the appointments, on the ground,
among others, that such appointments were untimely by reason of their having
been made long prior to the date fixed by law. His petition was granted and the
court annulled the resolution and ordered the municipal council to proceed with
the appointment of inspectors on the 15th day of April, or, in case that could
not be done on said date, on Monday, the 17th of the same month. (Exhibit
D.)
“The municipal council of Calabanga, instead of meeting on the 15th of April,
met two days earlier on April 13th, and on this latter date passed its
resolution No. 45 (Exhibit E), which is of the following tenor:
” ‘Resolution No. 45.—On motion by the municipal vice-president, the
following resolution was adopted: Whereas the appointment made by this municipal
council, of election inspectors and poll clerk, has been annulled by the justice
of the peace court of the provincial capital through a protest filed before said
court; and
” ‘Whereas, in pursuance with law, it is necessary to make new
appointments.
” ‘Therefore, be it resolved: To appoint as inspectors for the approaching
elections Manuel Sabido, Cirilo Sinogba, and Roman Malanyaon, and as poll clerk,
Valeriano Pron. Yeas: Esteban Malanyaon, Monico GalVes, Juan Cariiio, Luis
Ygusquiza, Francisco Amador, and Gerardo Parato. Nays: Esteban Frutos, Esteban
Reganit, and Julio Cardena.’
“It appears that the council doubted the legality of its resolution just
above transcribed, by reason, of its having been passed on the 13th day of
April, and at its regular session of the 15th of the same month passed
Resolution No. 48 (Exhibit E), which is as follows:
” ‘Resolution No. 48.—Reading was had of the copy, in its entirety,
of the decision of the justice of the peace court of the provincial capital,
dated April 12, 1916, in which decision, among other pronouncements, it is held
that the appointment of election inspectors and poll clerk in favor of Victorio
Colera, Manuel Sabido, Cirilo Sinogba, and Roman Malanyaon, effected at the
session held on February 29, 1916, is illegal, ntdl, and void, by reason of its
not having been made on the date fixed by law, and therefore said court orders
the municipal council to proceed with the appointment of new election inspectors
and a new poll clerk, at its session to be held this 15th day of April, 1916,
or, if impracticable for any reason, on the 17th of the same month.
” ‘The chairman asked the opinion of each one of the members of the council
as to whether or not new inspectors should be appointed in accordance with the
decision of the court referred to. Councilors Yguzquisa, Malanyaon, and Amador,
and vice-president Parato favored a new appointment, as did also councilor
Reganit. The latter stated that at the session of April 13, 1916, he had
dissented as he could not agree to the appointment of some of the inspectors
effected on that date. He therefore thought that for his satisfaction he might
be allowed to name the persons whom he desired to be chosen as election
inspectors. Councilors Frutos, Carino, and Galves were of the opinion that the
new appointment should not be made, for the reason that at the session held on
April 13, 1916, these positions had already been filled by appointment.
Councilor Cardena reserved his opinion.
” ‘As a result of the opinions above mentioned it was resolved by a majority
vote to appoint new election inspectors and a new poll clerk, in conformity with
the decision of the court aforenamed. Upon a vote being taken Manuel Sabido,
Justo Bordado and Roman Malanyaon were chosen as inspectors, and Valeriano Pron,
as poll clerk, it being understood that from the vote taken by the council on
the matter Messrs. Cirilo Sinogba and Roman Malanyaon received a tie vote; so
the chairman cast the deciding vote in favor of the latter.’ By this resolution
Justo Bordado was appointed for the first time to take the place of Cirilo
Sinogba. His appointment was proposed by Felino Padilla, candidate for municipal
president, who claimed that said Bordado belonged to his party.
“In the afternoon of that same day the council again met in special session
and adopted its resolution No. 50 (Exhibit E);, which is as follows:
” ‘Resolution No. 50.—The municipal vice-president in the regular
session of this day submitted the following resolution:
” ‘(1) Whereas, on April 13, 1916, the municipal council in special session,
proceeded to the appointment of election inspectors, in accordance with the
decision of the justice of the peace of the provincial capital;
” ‘Whereas it is not superfluous or unnecessary to ratify said appointments;
and therefore,
” ‘Be it resolved to ratify, as is hereby done, the resolution adopted by the
municipal council of Calabanga on April 13th and which concerns the appointment
of election inspectors and poll clerk.
” ‘Be it resolved, further, to set aside, as is hereby done, the resolution
adopted by this council on the morning of April 15, 1916, and which concerns the
appointment of inspectors. Adopted unanimously.’
“On April 17th, the council again met, also in special session, to adopt its
resolution No. 65 (Exhibit E) which reads:
” ‘Resolution No. 65.—On motion by the Chair, Be it resolved to
ratify, as is hereby done, the appointments made of election inspectors in the
regular session of April 15, 1916, as said appointments are in conformity with
the pronouncements of the judicial decision which holds to be illegal, null and
void the appointments made of election inspectors in the special session of
April 13, 1916, and in the regular session held in the afternoon of the 15th of
the same month, at which latter session the appointments made at the session on
the 13th of said month of April were ratified, all of such appointments being in
conflict with said judicial decision. Unanimously adopted.’
“On April 19th, Governor Fuentebella suspended from office the municipal
president of Calabanga, Dionisio Bordado, and likewise the four councilors Julio
Cardena, Esteban Reganit, Monico Galves, and Francisco Amador.
“On the same date the council composed of the remaining councilors and the
new appointees in substitution of the suspended councilors met in special
session presided over by the acting municipal president, for the purpose of
passing resolutions among which was that numbered 67 (Exhibit E) as follows:
” ‘Resolution No. 67.—In the session held today councilor Luis
Ygusquiza submitted the following resolution: Whereas, on the 13th, 15th, and
17th of April, 1916, the municipal council in special sessions appointed three
election inspectors and a poll clerk, in accordance with a decision rendered by
the court of this provincial capital;
” ‘Whereas the resolutions adopted at said sessions treated of the same
matter and in such a confused manner that the resolution of the 13th of April
was annulled by that of the morning of the 15th, and that of the afternoon of
the 15th, by that of the night of the 17th; and
” ‘Whereas it is desired to avoid wrong interpretations and that said
appointments of inspectors and poll clerk be duly ratified,
” ‘Therefore, Be it resolved: (1) To annul the resolution of the 13th, that
of the morning of the 15th, and that of the night of the 17th, concerning the
appointments of three inspectors and a poll clerk; (2) to rectify the resolution
of the municipal council of Calabanga, No. 50, of the after^ noon of April 15th,
except the part thereof relative to the appointment of Manuel Sabido; and (3) to
appoint, as is hereby done, Juan Garza, Cirilo Sinogba, and Roman Malanyaon, as
election inspectors, and Valeriano Pron, as poll clerk.’ Adopted by a majority
vote.
” ‘Councilors Guisic and Himantog dissented; the former proposed Justo
Bordado, Cirilo Sinogba, and Juan Garza, as inspectors, and Valeriano Pron, as
poll clerk; and the latter Toribio Felipe, Faustino Perfecto, and Eustaquio
Portugal as inspectors, and Valeriano Pron as poll clerk.’
“This last resolution, as well as the others from which the name of Justo
Bordado was eliminated from the names of the inspectors appointed, was the
subject of an appeal on the part of Felino Padilla, which appeal was decided
favorably to him by the justice of the peace court of the provincial capital,
acting as judge of the Court of First Instance, by annulling the resolutions
Nos. 45, 50, and 67, and declaring the resolutions Nos. 48 and 65 to be valid.
Consequently, the appointments of Manuel Sabido, Justo Bordado, and Roman
Malanyaon, as election inspectors were sustained.
“Justo Bordado resigned his office alleging sickness and was substituted by
Toribio Felipe who, with the two appointees above named, acted as inspector on
the day of the election.
“Such is the history of the conflict waged over the appointment of election
inspectors in the municipality of Calabanga.
“If Governor Fuentebella tools part in it, there would be no reason for
surprise, as he was governor.
“As may be seen, it was all a purely local question and one of procedure. The
herein protestant and protestee were not parties to that wrangle, and, as in the
case of Baao, the court believes that, although the matter in dispute is in a
certain manner connected with the conduct of the elections, yet the relation is
not one of causality, that is to say, such changes of inspectors had no bearing
on the votes obtained by the protestee Manuel Crescini nor on those which the
protestant Andres Garchitorena failed to obtain.
“With respect to the other irregularities, both those relative to the polling
place and the voting booths, as well as those concerning the manner in which the
inspectors conducted themselves towards the watchers, also a subject of
complaint on the part of the protestant, the court is convinced that these
irregularities actually existed.
“The polling place was in the second story of the municipal building, which
was fitted and equiped to serve for this purpose, while the ground floor might
have been used instead. The voting booths had no doors; it appears that they had
been provided with them but that they were removed, to which removal the
inspectors paid no attention whatever. There was no railing in front to serve as
a guard rail.
“It appears however that although all this may be another reason for holding
that the inspectors of Calabanga committed, as such, breaches of duty, or were
negligent in the due compliance with their duties, such commissions and
omissions do not warrant a holding that the election was seriously vitiated,
inasmuch as there is no evidence that the secrecy of the ballot was thereby
violated; there was no person near in front of the booths while the electors
were filling out their ballots, nor was anybody in the room, except the electors
inside of each booth, and the inspectors were stationed in such a way that their
backs were turned towards the booths. (See Exhibit C, Calabanga.)
“In the case of Gardiner vs. Romulo (supra), the Supreme Court made
pronouncements in regard to this kind of irreguIaritiSs, and said:
” ‘Were we confronted with the bare proposition that the polling stations
were located on the second floor and that the 30-meter space around them was not
kept clear, it might be that we should not have taken the drastic step of
avoiding the returns from this municipality. The law directs that these things
be done, but it does not say that the fact that they were not done shall have
the effect of vitiating the returns, and unless the non-observance of the law in
this respect was made a means of fraud or coercion they should be considered as
harmless irregularities.’
“In that case said irregularities were combined with several facts showing as
many election frauds and that the 30-meter space was not kept clear. In the
present case, not only was said space clear (this was one of the grounds oi; the
protestant’s complaint), but also there were no people in the room and polling
place, except the electors inside the respective booths occupied by them, the
election inspectors and polling clerk, and a policeman or two at the door of the
polling place to keep order.
“In view of these facts and of all the circumstances of the case, the court
chooses to apply most benignly the principle expressed in the citation above
given of the pronouncement made by the Supreme Court, and consequently considers
said irregularities as of no vital import. On account of these irregularities
all the ballots cast in the single election precinct of Calabanga should not be
rejected; but the votes which for other reasons were declared fraudulent or
illegal should be deducted.
“Now coming to the matter of the recount of the ballots, the court finds as
follows:
“There is a slight variance between the list of voters, the returns, the
ballots, and the statements of the inspectors, to wit:
“The list shows the registration of 368 electors, 348 of whom voted according
to the voting enumerations and 20 of them did not vote. (Said list discloses
however that the elector Natera, J. V., was listed under two numbers, 35 and
147, and Tarala, Nicolas, likewise twp, 22 and 52, which seems to indicate that
these men voted twice.) The returns attest that 340 electors voted, and that the
number of ballots found in the ballot box is also 340. The commission found that
349 ballots were used, 15 of which were thrown out by the inspectors during the
count, and that 19 ballots were spoiled during the voting, there remaining 80
official ballots in blank, all of which ballots aggregate the sum of 448 as
against 449, the number stated in the receipt given by the inspector Toribio
Felipe to the municipal treasurer for the ballots delivered to the former by the
latter. The inspectors attest in the statement made by them that 350 electors
voted.
“This conflicting fact and the disappearance of one ballot, in combination
with the frauds and irregularities above mentioned, might seem to be a
sufficient reason for the complete annulment of the election held at Calabanga;
but the court does not deem that such a drastic measure should be adopted until
every means shall have been exhausted of finding some satisfactory explanation
and some way to determine how many and which are the illegal votes, in order to
give proper weight to those that are legal and unsullied.
“It must be taken into account that, in addition to the provincial protest,
there was also a municipal protest regarding the Calabanga elections, and it
appears that, on recounting the ballots then, which was effected a long time
ago, 350 ballots were found to have been used (according to the inspectors’
statements), from which it is concluded that the disappearance of one of the
ballots used occurred perhaps accidentally subsequent to said recount. It is
understood how 350 used ballots were found, though but 348 electors voted,
because each of the electors J. V. Natera and Nicolas Tarala voted twice (on the
supposition that the list is correct in this regard). The incorrectness or
inaccuracy of the returns is another fault for which the inspectors who drew it
up are responsible; but the court believes that such defect can and should be
corrected.
“The result given by the ballots is: for Manuel Crescini 133 (by the returns,
134); for Andres Garchitorena 82 (by the returns, 81). The remaining votes were
cast for the other candidates, and there were some scattering votes. In several
ballots the space intended for the name of the candidate for the office of
governor was left in blank. Other ballots were rejected by the inspectors for
various reasons.
“Several of these votes were challenged by the protestant on the ground which
he alleged before the commission, and the court decides these objections in the
following manner:
“One hundred and seven ballots were written by the inspectors, 87 of them
being for Crescini and 20 for Garchitorena. One hundred and four of this total
number, that is, not including the three votes of the respective inspectors,
which are for Crescini, are rejected, for the reasons stated elsewhere and
because they were written fraudulently for persons who are unknown and did not
take the oath of incapacity.
“Nine votes, 3 of them for Crescini and 6 for Garchitorena (ballots Nos. 7,
8, 50, 64, 66, 175, 209, 229 and 331), are challenged as being written by the
same hand, probably by the poll clerk V. Pron, not authorized by law to do so.
The court has examined these ballots and is not convinced that they were written
by the same hand. They are admitted.
“Objection is made to:
“One vote, ballot No. 296, as being ambiguous, because the name of Crescini
is written twice. Rejected.
“One vote, ballot No. 297, for Crescini, as being illegible. It is so, and is
rejected.
“Five votes, ballots Nos. 230, 238, 244, 304, and 310, as bearing the name of
M. Crescini outside the space provided for the name of the candidate for
governor. Of these ballots Nos. 230, 238, and 244 are admitted, as the intention
of the respective elector appears to be clearly expressed; the remaining two,
Nos. 301, (not 310) and 304, are rejected, as the elector left no space in blank
to serve as a guide in interpreting his intention.
“In recapitulation: Of the 133 votes for Manuel Crescini, 88 should be thrown
out, to wit: 84 cast by illiterates, 1 illegible, 1 ambiguous, and 2 with
improper spacing, there being a remainder of 45 valid votes; and of the 82 votes
for Andres Garchitorena, 20 cast by illiterates should be deducted, giving a
residue of 62 valid votes.
“Municipality of Capalonga.
“The protestant’s complaint with respect to this municipality consists
according to his motion in that ‘in this precinct the petitioner obtained 11
votes for provincial governor and notwithstanding, the provincial board of this
province, in making the general canvass, awarded him only one vote according to
the tabulation said board made of the returns by precincts of the election held
in this province.’ (Record, p. 103.)
“At the hearing the protestee admitted that the provincial board of
canvassers did make a mistake by recording 1 instead of 11.
“Therefore, of the votes cast in this municipality, 6 should be awarded to
Manuel Crescini and 11 to Andres Garchitorena.
“Municipality of Iriga.
“This municipality is the largest of all those of the province of Ambos
Camarines. According to the census of the Philippine Islands of 1903, it had
19,297 inhabitants distributed in very few barrios which on this account are
quite densely populated; they are: Poblacion 2,049; Salvacion 1,944; San Agustin
1,880; San Antonio 2,203; San Isidro 1,910; San Juan 1,833; San Miguel 1,024;
San Nicolas 1,824; Santiago 1,210; Santo Domingo 1,393; and Santo Nino,
2,027.
“In the motion or written protest, the following grounds were alleged, to
wit:
” ‘(a) In view of the number of registered voters (more than 1,050), three
polling places were prepared in this municipality, but the respondent who is the
municipal president of said municipality, instead of locating said stations in
central points in each election precinct, located all of them at a short
distance from his dwelling house in the barrio of San Nicolas of said
municipality and at the entrance to the town.
” ‘(b) Two of said polling places were situated in one school building, and
to gain access to them the voters had to climb stairs of a little more than one
meter high. These polling places were not furnished with any guard rail, as the
law provides, and the voting booth, arranged in line, were made on all sides of
a framework of bamboo covered with paper, but the paper did not cover the entire
framework, there being an open space 2 or 3 inches in width in the walls or
sides of the booths, so that the elector who entered one of the latter could see
and communicate with those who were in the adjoining booths. Besides, the front
part of each one of these booths which served as an entrance was completely
open, had no door and was not covered with either paper or cloth; so the
election inspectors could, from the place where they were, see, read and observe
what the elector wrote on his ballot.
” ‘(c) The other polling place was situated in a small camarin built of
bamboo and nipa and without a floor. It also had no guard rail. The partition
walls of the booths of the two aforementioned polling places [?] and, besides,
there was the following particularity: two of these booths were situated besides
the entrance and exit of the camarin, and the voters assembled near said doors
could not only communicate with the elector in either of said two booths while
he was preparing his ballot, but could even read the contents of his ballot.
” ‘(d) The election inspectors and the poll clerk of these three precincts as
well as the municipal policemen and other persons, all partisan of the
respondent, engaged very actively in electioneering within the polling places on
the day of the elections, solicited votes for the respondent, and entered the
voting booths in company with electors who could read and write, in order to see
and witness what the latter wrote on their respective ballots, and by promises
or threats to induce them to vote for the respondent, by which means they
obtained many votes for the latter which otherwise would have been cast for the
petitioner or for other candidates.
” ‘The said electors so unduly influenced are: Juan Borromeo, Feliciano
Panis, Sinforoso Villadares, Doroteo Saunar, Victor Salvadora, Calixto Vizcaya,
Juan E. Taduran, Valenciano Canuto, Julian Naldo, Isaac Lagasina, Rufino Alanis,
and others at present unknown to the petitioner.
” ‘(e) Said election inspectors in those three polling places had during the
voting official ballots that had been filled out beforehand with the name of the
respondent written in the space intended for the name of the candidate for
provincial governor, and said ballots were deceitfully delivered to illiterate
electors for the purpose of being cast in the ballot box, as they were in fact
cast and counted as votes for the respondent.
” ‘(f) The election inspectors themselves had ballots that were imitations
of, or very similar to, the official ballots, and such counterfeit ballots were
delivered to many illiterate electors who went to the polls to vote and who
being deceived filled out said false ballots, believing them to be authentic,
and these were afterwards changed by said inspectors one of which changes was to
make it appear that the respondent was voted for for the office of provincial
governor. ,
” ‘(g) Said election inspectors defrauded a large number of illiterate
electors who solicited their assistance in the preparation of their respective
ballots, for, instead of writing the name of the respondent [petitioner?] or
those of other candidates for the office Ojf provincial governor, they wrote the
name of the respondent for said office without the knowledge and against the
will of said electors.
” ‘(h) Many electors, knowing how to write and not being physically
incapacitated from preparing themselves their ballots, solicited nevertheless
the assistance of the election inspectors in the preparation of their respective
ballots, and the latter rendered such assistance for the purpose of knowing, and
in this manner assuring themselves, that said electors’ votes would be for the
respondent.
” ‘(i) A large number of electors who solicited the assistance of the
inspectors in the preparation of their ballots did not previously take the oath
of illiteracy or physical disability as required by law nor did said inspectors
require such oath.
” ‘(j) A large number qf ballots were cast in the ballot box without the
presence of the electors who prepared them, for the inspectors competed these
electors to go out before said ballots were therein deposited.
” ‘(k) More than 300 persons registered in the election list who were wholly
unqualified to be electors voted in said polling places and their ballots were
admitted by said inspectors who deposited them in the ballot box and afterwards
counted them during the canvass made of the votes.
” ‘(l) More than 200 electors voted in said polling places after 6 p. m. on
the day of the election and their votes were deposited in the ballot box and
afterwards counted during the canvass made of the votes.
” ‘(m) After the closing of the polls, said polling places were closed for
about three hours, during which time the only persons within were the election
officers, and after this long closure the canvass of votes was commenced, which
was conducted so slowly that it lasted three days, notwithstanding that not more
than 400 electors had been registered in each polling place.
” ‘(n) Said election inspectors did not permit any candidate’s watcher who
witnessed the voting to see during the canvass of the votes the contents of the
ballots as they were counted; wherefore the petitioner believes, and so alleges,
that said inspectors read in many ballots the name of the respondent, though
that of the petitioner or those of other persons were written thereon as
candidate or candidates for the office of provincial governor/
“If the proofs adduced with respect to the other municipalities are numerous,
not less so are those that should have been, and in fact were, presented in
support of the objections made against the election held in the three election
precincts of this municipality of Iriga.
“In consideration of the importance of the municipality just mentioned, the
nature of the charges made, and the circumstance that it was the protestee’s
place of residence at the time this contested election was held, he being the
municipal president of Iriga, the court will undertake to discuss each one and
all of the questions raised by the parties in .their pleadings and evidence,
such as may be pertinent and necessary for the proper decision of this case,
though this will be done synthetically and with the greatest possible
conciseness compatible with the requisite clearness.
“The allegations contained in the paragraphs (a), (b), and (c) of the motion
(as regards Iriga) may be deemed to be proven; the court declares that they
are.
“With respect to said allegations of the protest, not only did the protestant
introduce unblemished and convincing evidence, but also the protestee impliedly
admitted them at the hearing on his trying to show by his own evidence and by
his cross-examination of the protestant’s witnesses, that all that was done in
view of the fact that the municipality of Iriga had no other buildings available
for the purpose.
“In regard to the conditions of the voting booths on the day of the
elections, counsel for the protestee had several witnesses brought before the
court to testify that said booths were in the condition the law required them to
be and had the appearance shown in the photographs (Exhibits 1 and 2),, and that
at the time the election was held the booths in the three polling places or
election precincts were alike or the same in form.
“The court gives no credence to that testimony and those photographs and
although he should like to do so he cannot morally or legally, in view of the
fact that such photographs which are supposed to have been taken of one or two
booths of those used during the elections held on June 6, 1916, were made long
subsequent to the elections and after they had been covered for the purpose of
being so photographed, and chiefly in view of the following stipulation of
facts, contained in the record and made at the proposal of the protestee’s own
counsel:
“While Luis Martinez, one of the protestant’s witnesses, was testifying at
the morning session of September 20, 1916, Mr. Lockwood said:
” ‘To gain time,
we can agree that the booth of the first polling place of Iriga had no door.”
(Evidence presented before the Honorable Judge Paredes, p. 213.)
“It should be borne in mind in the first place that it is the understanding
of the parties in this case and of the court that when speaking of a door it is
not precisely the opening or space through which the elector passes in entering
or going out of the voting booth that is meant but the actual door itself,
namely, a thing made of material of one sort or another which serves to close
said opening or space and which may be removed or put in place, according as to
whether the door be opened or closed; and the second place, that is an actual,
true, and certain fact that all the voting booths used in three polling places
on June 6, 1916, were similar one to another and had the same form, like so many
copies made from the same model or type.
“The following facts which were proven are intimately related to the matter
of the polling places:
” (a) In the elections prior to that held on June 6, 1916, there were in
Iriga two polling places; (b) said stations were separated from each other by
more than one kilometer, having been so located without doubt for the
convenience of the voters of each election precinct, in accordance with law;
and, (c) at the last general elections, a third polling place was established
and this one and the others were located in buildings very near each other
situated in San Nicolas, the barrio in which the protestee Manuel Crescini
resided.
“It was also proven that the number of booths prepared was insufficient
inasmuch as, for instance, in the first precinct or polling station where 423
electors were registered on [?] booths were furnished, and the tables or desks
used were most inadequate.
“Said desks or writing desks were of the kind used by the children in the
public schools. They consist of a seat and a back. Nailed horizontally to the
upper part of the back there is a slightly inclined board of about 50
centimeters in width which serves as a table for the pupil sitting in another
seat placed behind the first, that is this small table corresponds to another
child who is not the one occupying the seat of which the table forms a part.
“It is true that these desks or writing desks were placed against the wall in
the rear of their respective booths, the small table being toward the inside and
the seat toward the outside; but the elector, while writing, besides finding
both the table and the seat necessarily disproportionate. for him, had also to
assume a very uncomfortable position, with his feet towards the door of the
booth, his body to one side, and his face towards the rear, that is, he had to
twist himself, unless he wrote with his writing material at his back or at his
side, and in such a cramped position could not shield his ballot from the view
of an observer outside the booth and in front of him, that is, not in line with
the elector’s body.
“Another fact is that the six ballot boxes furnished the three polling places
consisted of so many boxes or receptacles of cubic shape made of pine; the
boards that formed their sides simply nailed together, and their lids or covers
were attached by hinges but were provided with no lock and key.
“In view of these facts, can it be said that the law was complied with?
Evidently, no. Sections 511 and 512 of the Administrative Code [1916]
provide:
” ‘Sec. 511. Designation and arrangement of polling places.—At least
sixty days before each general election the municipal council in each
municipality in which such election is to be held shall designate in each
election precinct a place, as centrally located with respect to the residences
of the voters as is practicable, where the elections and the meetings of the
board of inspectors for registration shall be held during the year. Each place
so designated shall, if practicable, be a room upon the lower floor, of
reasonable size sufficient to admit and comfortably accommodate twenty electors
at one time outside the guard rails. No liquors shall be sold or cockfights held
in any building so designated from the time of designation until the day after
the election. If for any cause a place so designated shall thereafter and before
election be destroyed or for any cause cannot be used, the municipal council
shall forthwith meet and designate some other suitable place for holding such
registry and election. Not more than one polling place shall be in the same
room, and not more than two polling places shall be in the same building. The
municipal council shall provide £or each polling place at each election the
necessary ballot and other boxes, guard rail, booths, stationery and supplies
necessary for the lawful conduct of each registration and election thereat;
shall preserve the same when not in use and shall deliver all such ballot or
other boxes for each polling place at the opening of the polls of each election.
Whenever the municipal council shall be unable to procure suitable places, or
whenever it shall be more economical so to do, such council may provide
temporary or portable structures adequate to the purpose, and shall take such
measures as are proper and necessary for the storing thereof and reerection of
the same at the following election. Such structures may be erected in any public
street or plaza, but not so as to block traffic thereon. No building owned or
inhabited by any person who is a candidate for any office for which votes are to
be cast in any precinct shall be used as a polling place for that precinct.
” ‘Sec. 512. Voting booths.—There shall be in each polling place
during each election a sufficient number of voting booths not less than one for
every fifty voters in the election precinct. Each such booth shall be at least
one meter square, shall have four sides inclosed, each at least two meters high,
and the one in front shall open and shut as a door swinging outward and shall
extend to within fifty centimeters of the floor. Each such booth shall contain a
shelf which shall be thirty centimeters wide extending across one side of the
booth at a convenient height for writing, and shall be kept furnished with
indelible pencils to enable the voters conveniently to prepare their ballots for
voting. Each booth shall be kept clearly lighted, by artificial lights if
necessary, while the polls are open and until the voting has ended.
” ‘A guard rail shall be placed at each polling place at least two meters
from the ballot boxes and from the booths, and no ballot box or booth shall be
placed within two meters of such rail, and each guard rail shall be provided
with an entrance and exit, the one separate from the other. The arrangement of
the polling place shall be such that the booths can only be reached by passing
within the guard rail, and that the booths, ballot boxes, election officers, and
every part of the polling place, except the inside of the booths, shall be in
plain view of the election officer and of persons just outside the guard rail.
Each booth shall be so arranged that there shall be no access thereto except by
the door in the front of said booth.’
“These legal provisions just above cited, which are the same as those
contained in sections 9 and 21 of Act No. 1582, have been interpreted by our
Supreme Court, in Gardiner vs. Romulo (supra) as follows:
” ‘5. The central idea of the election law is to secure a secret ballot to
the electors, to the end that they may express their choice of candidates
uninfluenced by threats, intimidation, or corrupt motives.
” ‘6. The requirements of the Election Law providing for the location of
polling stations and the construction of booths and guard rails for the latter
may be departed from in some particulars and yet preserve in substantial form
the secrecy which the law requires. But the failure to provide doors and guard
rails for the booths and the placing of the writing shelf so that it faces the
side instead of the rear of the booth are, combined, a fatal disregard of the
law, inasmuch as such an arrangement does not offer, even in substantial form,
the secrecy and seclusion which, according to the purpose and spirit of the
Election Law, is its most mandatory requirement.’ (Syllabus.)
“And in Manalo vs. Sevilla (supra) the following appears :
” ‘There should be a booth for every 50 voters and one for a fractional part
thereof/ For example, if there are 51 voters, there should be two booths.
“Sections 543 and 544 of the Administrative Code [1916] give an idea of some
of the requirements of the law in regard to ballot boxes. They prescribe:
” ‘If it should become necessary to make room for more ballots the chairman
may open the box in the presence of all the board and press down the ballots
with his hands without removing any therefrom; he shall then close, lock and
seal the box, as hereinafter provided. In case of the destruction of the boxes
or the failure to deliver them at the polling place, the board of inspectors
shall immediately provide other boxes or receptacles as nearly as possible
adequate for the purposes for which intended.
” ‘SEC. 544. * * * At the opening of the polls the ballot box and box for
spoiled ballots shall be opened by the chairman, emptied and exhibited to all
the members and other voters present, and, being empty, shall be closed, locked,
and a seal placed ovefr the lock, and the boxes shall be kept closed and sealed
until the polls are closed, when the ballot box shall be opened to count the
votes.’
“In passing to a consideration of the other questions raised, the court deems
it convenient to discuss then separately, with respect to e’ach one of the three
precincts of Iriga, inasmuch as the evidence adduced bearing on the
irregularities alleged to have been committed in one polling place, or on the
frauds charged against the inspectors of a certain precinct, ought not affect
the voting done in the other two precincts, though they belong to the same
municipality.
“Following the same plan adopted with respect to the other municipalities or
election precincts, the court will proceed first and preferentially to an
examination of the ballots and other documentary evidence that concern- the
contested elections.
“FIRST PRECINCT.
“With respect to this precinct, a question arises that is entitled to
preferential consideration, in view of the fact that it is alleged and there is
evidence that the ballot boxes were tampered with.
“In fact, the testimony of the chairman and the poll clerk of the election
board of the first precinct appears to be conclusive with respect to this
question, particularly- taking into account the appearances of the ballot boxes
as compared with the other four pertaining to the other two polling places.
“The commission appointed for the recount deemed it expedient to ascertain
the true condition of the ballot boxes before it should proceed to open them,
and therefore called before it the respective election inspectors and the
municipal secretary in order to give testimony in regard to the identification
and other circumstances relative to said ballot boxes. In the minutes of the
commission referred to, there is recorded the following memorandum:
” ‘ENRIQUE Iturrios, presiding officer of the first polling place. He
examined the box of the good ballots of the first polling place and testified
that said ballot box had been changed; that the sides of the ballot box that had
been used on the day of the election were of one single piece, while the sides
of the present ballot box are of two pieces; that the wood of the ballot box
used was newer than that of the present box; that the box of good ballots
brought to this commission is not the same one that was delivered to the
municipal secretary after the election; that the papers containing the signature
of the municipal secretary, which were stuck to the edges of the ballot box
after the election, were no longer there; and that after the election the ballot
boxes were not closed with a key but with nails. He identified the signature
that appears on the strip of paper attached to the lid and extending across the
front side of the box and testified that said paper is the same one which they
(the inspectors) signed and stuck on the original box in the same manner/
“The minutes also contain a record of the description of the ballot boxes, as
follows:
” ‘With respect to the conditions of the ballot boxes before they were opened
by this commission, it is made a matter of record that the box of good ballots
is square on all its sides, is made of packing-case boards that are quite thick
and of a natural color, is similar to the other ballot boxes of the same
municipality of Iriga, and is securely nailed. On the cover there is a paper of
the size of legal cap which extends to the middle of the front side of the box,
and on the edges of this paper there are several daubs of sealing wax which
serve as seals. Said paper bears the following words: “l.er colegio electoral
(1st Polling Place) and the signatures of Enrique Iturrios and Francisco
Hernandez, and below, “Junio 6, 1916.” On the ballot box of good ballots there
are also several small strips of paper stuck to the sides, corners, and edges,
and bearing the following inscription: “Julio 13, 1916,—Pastor Guadalupe,
Municipal Secretary.” At the bottom of the ballot box of good ballots of the 1st
precinct there is an opening near one corner, two and a half inches long by one
inch wide. This opening does not appear to have been made by outside fcrce nor
by any instrument whatever, but is a natural break in the wood caused by a
knot.
” ‘The ballot box of spoiled ballots is of the same shape and size as that of
the good ballots, except that it is a trifle higher than the latter, due to the
cover being of thicker lumber.
” ‘On the cover of this box there is likewise a long sheet of legal cap paper
reaching to the middle of the front side, and on the edges of this paper there
are also daubs of sealing wax and the following words: “l.er colegio electoral.
—Balotas inutilizadas, Junio 6, 1916” (1st Polling Place.— Spoiled Ballots, June
6, 1916). Said ballot box also has several papers stuck to the edges, bearing
the words: “Julio 13, 1916—Pastor S. Guadalupe—Mun. Sec.”‘
“On petition by the parties, the court investigated this incident relative to
the alleged violation of the ballot boxes, and several witnesses were called to
testify, among them being the election inspectors themselves and the poll
clerk.
“Enrique Iturrios, presiding officer of the election board of the first
precinct, testified that the ballot box used at the election and intended for
good ballots was sealed with paper signed by the three inspectors (the witness,
Francisco Hernandez, and Paulino Federis) and was delivered to the municipal
secretary together with the box of spoiled ballots (the paper seal of which box
appears not to have been signed by any inspector); that one Sunday night
subsequent to the election, after prior notice by the protestee Manuel Crescini,
witness went with the latter to the municipal building from which they took the
ballot boxes of the first precinct and carried them in a sack to the protestee’s
house, and as soon as they entered it Crescini sent for the other inspector
Hernandez who arrived immediately and thereupon broke the cover of the ballot
box of good ballots and opened without breaking the cover of the box of spoiled
ballots; that after both receptacles had thus been opened, he (Iturrios) and
Hernandez engaged themselves in restoring several spoiled ballots which bore the
name of Manuel Crescini for governor, transferring them to the ballot box of
good ballots, and from the latter removed ballots that had been cast for Andres
Garchitorena and for other candidates and put them into the box of spoiled
ballots; that they also erased the name of Andres Garchitorena from other
ballots, writing afterwards in place thereof the name of Manuel Crescini; and
that the ballot box for good ballots used at the election was destroyed by fire
and was substituted by a similar box which Crescini had there in his house, in
which latter box the good ballots and those corrected were placed, and after
this had been done the lid was nailed down and was sealed with another sheet of
paper like the one used on the destroyed box, but signed by only the two
inspectors Iturrios and Hernandez, the sole persons who were present during
these proceedings.
“Francisco Velasco, poll clerk of the same polling place, testified that the
ballot box exhibited to him as the one used at the election held in the first
precinct of Iriga was not the one there used, because the ballot box that they
used did not have a large opening at the bottom; that the sides of the genuine
box were each made of one single piece of lumber and not of several; and that
the paper containing the seals was signed by the three inspectors and not by
only two of them.
“The inspector Francisco Hernandez states that the ballot box in question was
the same one that was used at the election for good ballots, and that he was
able to identify it because, when the president election officer showed the
ballot box to the public, he noticed that it had a small hole at the bottom of
the size of a peseta. (When this inspector testified—which he did before the
poll clerk Velasco gave his testimony—the hole at the bottom of the box was
still covered, and when it was uncovered by removing the paper covering the hole
was found to be two and a half inches long by one inch wide. This witness denies
all the statements made by Iturrios about the violation of the ballot box and
his participation therein.
“The other inspector Paulino Federis testified that he did not sign the paper
affixed to the ballot box bearing the seals, because, though he had finished his
work when the sealing was done and the other inspectors signed, and though he
saw these operations, he had a headache and forgot to sign, and that neither his
colleagues nor the poll clerk called his attention to the fact that he did not
sign.
“The ballot box and the box in question agree with the description given of
them in the minutes of the commission above transcribed. There is besides the
additional circumstance that, on comparing the ballot box for good ballots with
the box for spoiled ballots, the latter is found to be somewhat larger than the
former and, in comparison with the other four ballot boxes of the three
precincts, of coarser make and a little older. Furthermore, on the lid or cover
of this ballot box there is an old oxidized lock that cannot be opened or
closed, which shows that the box was used in previous years. As to the box for
spoiled ballots, the same previous use is suggested by its having on the cover a
piece of tin plate, indicating that previously it had a lock. These
circumstances in some manner distinguish these ballot boxes from the others.
“But the court does not wish to decide this question of the violation of the
ballot boxes by solely relying upon the appearances and the testimony of
Iturrios and Velasco. Iturrios, according to his own statements, had reasons for
not liking the protestee Manuel Crescini; he saw that others were advanced to
positions which he had a better right to fill, that his hopes were not realized
of being appointed warden of the provincial jail, while the other inspectors,
his companions, and the inspectors of other municipalities had already been
awarded good provincial or municipal positions.
“The court prefers to turn to the ballots themselves in order to contemplate
in them the resplendent light of the truth, if they are found to be intact, or
in a contrary case to discover through them the frauds denounced and chiefly the
very fact of their violation now under discussion.
“In one of the ballot boxes there were found 420 good ballots and 3
improperly filled in and bearing on their reverse side the word ‘rejected;’ and
in the other box, 47 spoiled ballots with the word ‘spoiled’ written on the
back, on some of them with an indelible pencil and on others with a pen. Of the
420 good ballots, 400 are for Manuel Crescini, 14 for Engracio Imperial, 4 for
Andres Garchitorena, 1 is illegible, arid 1 undecipherable. The 47 spoiled
ballots can be classified as follows: 13 for Crescini, 16 for Imperial, 8 for
Garchitorena, 3 for Botor, and 7 for various other candidates.
“Twenty-two of said 420 good ballots originally bore on their reverse side
the word ‘spoiled/ which was erased in order to restore them; besides, something
is noticed in these ballots that distinguishes them from the other good ones,
but which, at the same time, makes them similar to the spoiled ballots, and it
is that the good ballots (except 2 of them which perhaps through confusion were
included) all have, in about the central and middle part of their upper half, a
small hole produced by a pin, needle, or thread, which indicates that they were
strung together. The same kind of hole is also noticed in 24 of the 47 spoiled
ballots, while these 22 ballots just above mentioned, as well as the other 23
(of the 47) spoiled ballots, have no such hole. These details show indubitably
that the 24 perforated ballots now found among the spoiled ones were once among
the good ballots and were strung with them by means of the same needle or the
same thread, and that the 22 ballots with the word ‘spoiled’ erased, or, better
said, restored ballots, must have come from the lot of spoiled ballots with
which they must previously have been joined without stringing of any kind.
“In accordance with the details above mentioned, the result given by the 420
good ballots is in perfect harmony with the result shown by the returns, to wit,
400 votes for Crescinir, 4 for Garchitorena, and 15 for Imperial. (Of the
remaining ballots, without doubt either the illegible or the undecipherable one
was counted.)
“In view of the circumstances of the case, what explanation may be given to
this fact, in connection with the violation of the ballot boxes now under
discussion, taking into account besides that 16 of the restored ballots (Nos.
348, 349, 351, 352, 353, 354, 357, 358, 359, 360, 365, 366, 367, 368, 369, and
370) turn out to have been written by the inspector Iturrios, one (No. 341) by
the inspector Hernandez, and another (No. 356) by the inspector Federis, and 4
(Nos. 344, 345, 346, and 355), by electors who could read and write?
“The ballot boxes were either actually violated or not; there is no possible
middle ground. If it be the first alternative, then there is no question and
there can be no doubt about the truth of the testimony given by Enrique Iturrios
in so far as it refers to such violation, though perhaps not with the details
related and without the direct or indirect intervention of the protestee Manuel
Crescini. In such a case the ballots deserve no credence; they lose all their
probatory value and carry with them the total discredit of the election
returns.
“If there was no violation of the ballot boxes, and the ballots are intact
and in the same condition that they were when the ballot boxes were closed and
delivered together with the rest of the documents to the municipal secretary,
then we find other frauds and illegalities as serious as such a violation
itself.
“In fact, who wrote on the back of the ballots and afterwards erased the word
‘spoiled’? It could only have been some one of the election inspectors
(apparently Iturrios himself), because 18 of the ballots were written by the
inspectors, supposedly for illiterate voters, and 4 of them were prepared by
electors who could read and write, for it is presumed that they did not write
anything on the back of their own ballots, nor much less wished to spoil them,
and there is no proof that they did. When a ballot was spoiled (during the
voting, it is supposed) it must have been put inside the box for spoiled
ballots, and the elector must then have received another blank ballot, which
after being filled in must have been deposited in the proper ballot box. On this
hypothesis, 423 good ballots would have been found in the ballot box, which is
the number of electors who voted according to the registry list with the
exclusionof course of the 22 spoiled ballots which, as we have said, must have
been placed in the box intended for them. Then we find that likewise an illegal
act was committed by the spoiling of good ballots to substitute them by other
ballots taken from the box of spoiled ballots and restoring the substitutes by
the erasure of the word ‘spoiled’ written on their reverse side; and this act
could have no other than a fraudulent purpose.
“Another hypothesis is that the inspector who spoiled the ballot did so
through mistake or carelessness and therefore immediately restored it and
afterwards deposited it in the box for good ballots. Can such a theory be
accepted? Assuredly it cannot, particularly if account is taken of the fact that
most of these ballots were prepared by the inspectors themselves for supposed
illiterate voters. At all events, in every case the alleged mistake or
carelessness is illegal, because, with respect to the ballots written by
electors who could read and write, it supposes the fact of the inspectors having
opened these ballots, and likewise illegal was the restoration of the latter
through erasures, for the elector should have been given another clean
ballot.
“In the foregoing hypothesis no account at all has been taken of the detail
regarding the perforations or small holes made in the ballots for the purpose of
stringing them.
“Besides the absurdity of the suppositions mentioned, the protestee presented
no evidence whatever in rebuttal of the statements of Enrique Iturrios with
respect to the restoration of spoiled ballots, nor any proof at all to show that
such ballots were restored during the voting or the subsequent canvass of the
votes.
“Really, the court finds no complete explanation of this matter other than
that given by the presiding officer of the election board, himself being one of
those who violated the ballot boxes and restored ballots. That these acts were
commited by Iturrios in the house mentioned and with the connivance of certain
persons who were not inspectors, is a point which the court deems unnecessary to
decide in these proceedings; it is sufficient to say that the violation of the
ballot boxes of the first precinct of Iriga is a proven fact, and that it was
likewise proven by the ballots themselves that some restored ballots in which
protestee appears to have been voted for for governor were substituted or
exchange for good ballots cast for other candidates. The inspectors Enrique
Iturrios and Francisco Hernandez participated directly in the commission of
these acts.
“This leads the court to inquire the purpose of the violation of the ballot
boxes, the origin of the 22 restored ballots, and the reason why they were
previously spoiled.
“The protestant advances the following theory with respect to these
questions:
“As he alleges in his written petition, during the voting the election
inspectors had official ballots which had been filled out beforehand by writing
the name of .the protestee in the space allotted for the office of provincial
governor, and it was these ballots that were deceitfully delivered to illiterate
electors to be deposited in the ballots box, as in fact they were there
deposited and were counted as votes for the protestee. The ballots so prepared
since the evening before the elections were not all given out, but some of them
were left over, notwithstanding that the elections were prolonged in order to
enable all registered electors to vote. These extra unused ballots were spoiled
and placed in the proper box. In making the canvass of the votes they read on
several ballots the protestee’s name instead of the names of the rival
candidates which were actually written on said ballots, thus falsifying the
returns ; and knowing that these were not of course in agreement with the
ballots, they made the necessary adjustment by violating the ballot boxes and
restoring ballots that had been spoiled.
“In support of this theory the protestant presented among other evidence the
exhibits B-l, B-3, and B-5, the testimony of the municipal treasurer of Iriga
and of the inspector Enrique Iturrios, the electoral returns of the first
precinct (Exhibit F), and the ballots themselves above mentioned. The Exhibits
B-l, B-3, and B-5 together with the testimony of the municipal treasurer show
that the election inspectors requested and received official ballots and
indelible pencils on the afternoon of June 5, 1916. Enrique Iturrios gave the
testimony reproduced and abridged in another part of this decision. The election
returns set forth among other facts that the polls closed at seven o’clock in
the evening. It has already been said that the ballots referred to prove the
fact of the violation of the ballot boxes and show why they were violated.
“Against such theory and in rebuttal of said evidence, the protestee made no
objection other than a mere denial, nor did he endeavor by testimony or by
argument to prove the inadmissibility of the theory in question. He simply
adduced evidence tending to prove his great popularity, particularly in Iriga,
the town of his residence. He attempted to show that he had no need to resort to
such illegalities in order to triumph and sustain the returns nor to attack the
credibility of Iturrios and the other witnesses presented by the protestant.
“The court does not deny the protestee’s popularity, and is morally convinced
that the people of the town of Iriga like him, and that a large majority of the
electors of this town voted for him. The court agrees with him in that not only
was there no need to resort to unlawful means but also that in every case such
means should be repudiated, and does not hold that the testimony given by
Iturrios and other witnesses for the protestant is without defect or blemish.
But the main question hinges on the explanation of the condition and
circumstances of the ballots considered in combination, on the one hand, with
the prolongation of the voting until 7 o’clock in the evening and on the other,
with the requisition for and receipt of the official ballots on the afternoon of
the day immediately preceding that of the elections.
“Be it as it may, the court considers these questions as secondary and will
not delay further in a more extensive discussion of them. It is enough to say
that whatever might have been the purpose sought by the violation of the ballot
boxes, whatever the origin of the 22 restored ballots, and whatever be the
reason why they were previously spoiled, none of the acts committed in respect
to these facts can be justified, nor did they seek the attainment of any lawful
purpose.
“So then, leaving these questions to one side and scrutinizing more closely
the contents of the ballot boxes aforementioned, for the purposes of a full
discussion of the elections held in this precinct, the court finds:
“That of the 420 ballots found in the ballot box 187 were written by the
inspectors, Enrique Iturrios having identified 65 as prepared by him, Francisco
Hernandez 86 and Paulino Federis 36; that, according to the list of illiterates,
the number of incapacited electors who were assisted is only 146; that 520
ballots were delivered by the municipal treasurer to the inspectors of the first
precinct of Iriga; and that the total number of ballots returned by said
inspectors is as follows:
Ballots filled in and valid……………………………………….
Ballots filled in and rejected…………………………………. Ballots
spoiled………………………………………………………Ballots in
blank……………………………………………………….
“Consequently, one ballot is missing.
“Entering now upon a discussion of the 184 votes cast by illiterate electors
(187 less the three votes of the inspectors), in connection with the list
presented (Exhibit 3, Iriga), omitting for the present all consideration of the
matter concerning the oaths of incapacity (the poll clerk said in his testimony
that those who were assisted in the preparation of their ballots did not take
this oath), and also of the question as to whether said list of illiterates is
or is not admissible as evidence (it not having been transmitted to the court in
due time, together with the rest of the documents pertaining to the election),
the court will say that either said Exhibit 3 relative to Iriga is absolutely
false, or the election held in the first precinct was full of illegalities and
frauds, or that perhaps both these propositions are true.
“If the 184 ballots were written by the inspectors, which is a true and
undeniable fact for it is shown to be such by the ballots themselves identified
by the very electors for whom these inspectors wrote them, it necessarily
follows that said list of illiterates is false, inasmuch as it shows that only
146 illiterate electors were assisted. Ordinarily this statement would suffice,
but the court believes that it is not superfluous to scrutinize said list
closely in order to establish grounds upon which to base such a grave
pronouncement as that of declaring this list to be false.
“Said document is drawn up on a blank form, Election Form No. 8, and its
heading is as follows i
” ‘Minutes of the proceedings of the board of election inspectors.—In the
polling place of the municipality of Iriga, June 6, 1916.—On this date record is
hereby made of the names of the incapacitated electors who received assistance,
the names of the inspectors who assisted them, together with a statement of the
oaths taken before the board by said electors, and the nature of the disability
alleged by the latter consisting, as to some of them, in their not knowing how
to write, and, as to the others, in defective sight or defective hands.’
“Following this heading appear the Christian names and the surnames of the
persons said to have been assisted, but no mention is made of the names of the
inspectors who gave the assistance. It. is supposed, and we are prone to
believe, that said names were written in the same order in which the voting was
done, that is to say, that the names first recorded are those of electors who
voted before the electors whose names are last.
“Now then, it appears that Lorenzo Panday whose name is the first on the
list, bears No. 189 in the order of the voting, as seen on the register of
voters, which means that he voted long after Anselmo Molina whose name appears
in the middle of the list and bears No. 5 in the order of the voting and after
that of Feliciano Ibarreta, voter No. 196, though the latter’s name is the last
one of the 146 of the list.
“But the irregularities just mentioned are not the most serious ones. Said
list shows that Pedro Dacara and Sergio Balang were assisted; however, upon an
examination of the register of voters it is found that such persons, if they
exist, were not registered. The case of Manuel Dacara and Victoriano Taduran is
also very conspicuous. It is given to be understood that these two electors
whose names appear in this list of illiterates voted in the first precinct,
assisted by the inspectors; however, they were not registered in this precinct
but in the second. Manuel Dacara did not vote, and it is not known whether
Victorino Taduran voted or not, for, though he bears No. 117 in the order of the
voting, this number nevertheless was crossed out.
“If it is contended that this list of illiterate electors is correct, then it
constitutes the best proof that at the elections held in the first precinct of
Iriga illegalities and frauds were committed such as those of the voting of
persons not registered in the list of voters and of electors from another
precinct.
“The discrepancy between the number of ballots written by the inspectors and
the number of illiterate electors to whom such ballots should correspond is
undoubtedly a serious defect and one of considerable importance, as is likewise
that of the absence of the proper register of disabled voters required by law,
both of which defects the court holds to have been proven. It was also proven
that the inspectors of the first precinct were unfaithful in the performance of
their duties in regard to the illiterate voters. But of much more serious a
nature, and of farreaching import, is the unexplained disappearance of one
official ballot.
“When this loss occurred and whether it was a ballot already filled in or one
in blank nobody knows. The fact is that the inspectors did not render an account
of one ballot, did not explain its absence. In view of all the circumstances of
the case it is more than likely that this ballot was removed during the night
before the election by some elector or by an electioneerer of some candidate,
with or without the knowledge and consent of the inspector who had the custody
of the ballots.
“Now, by a slight examination of the register of voters it will be seen that
several persons, after once having been excluded, were permitted to vote. This
register shows in fact the registration of 42 electors, opposite whose names and
in the column provided for remarks the following note appears: ‘Excluded through
challenge by the municipal treasurer.’ However, 31 of these electors so shown to
have been excluded did vote and only 11 of them did not.
“There are many and various other questions also, as for instance that of
whether or not the secrecy of some ballots was violated while the respective
electors were voting; that of whether or not an electioneering was done within
the booths; and that of whether or not any electors voting for the protestant
were defrauded of their votes; but the court does not believe it necessary to go
into further detail in this matter. Suffice it to say that, owing to the
conditions of the voting booths, it was easy to violate the secrecy of the
ballots; that several witnesses presented by the protestant testified that the
inspectors had unduly arid improperly influenced them in favor of the protestee,
and the testimony of some of them was not rebutted on cross-examination ; and
that some thirteen electors capable of reading and writing testified, and their
testimony was riot successfully rebutted, that they voted for Andres
Garchitorena, while the returns show but four votes for this candidate.
“In conclusion: in view of the conditions of the voting place, booths, and
ballot boxes of the first election precinct of Iriga, as described in the
commencement of these considerations; taking into account the violation of the
ballot boxes and the changes or substitutions of ballots, which fatally and
absolutely discredit the electoral returns; noting the frauds that imply
infidelity on the part of the inspectors in the performance of their duties with
respect to the illiterate voters, and the falsity of the returns made by these
inspectors; considering the disappearance of one ballot, and the fact that
several persons voted who had previously been excluded from the registration
list; and, finally, in view of the commission of various other irregularities by
the inspectors during the elections, the court does not see how it can lawfully
render a decision contrary to the general and constant doctrine followed by the
courts of these Islands according to which, in such cases, the election must be
annulled.
“The election returns are rejected and the election held in the first
precinct of Iriga are annulled. (See McCrary, par. 348; Gaston vs. Hernaez et
al., court of Negros Occidental; Genarao vs. Disipio, court of Pangasinan;
Auresus vs. Pedero, court of Ambos Camarines; also Villamor on Elections, pars.
1053, 1062, and 1063; and Gardiner vs, Romulo, 26 Phil. Rep., 521.)
“SECOND PRECINCT.
“From an examination of the ballots cast in this second polling place of the
municipality of Iriga, made in connection with the pleadings and evidence
submitted, the court finds:
“That 284 good ballots and 25 spoiled ones were found in the ballots boxes;
that 184 of these ballots were written by the three inspectors Juan Castro,
Bembenuto Bersamina, and Juan Salvadora in the proportion respectively of 70,
28, and 86; that of the 70 prepared by Juan Castro, 55 were identified by him
and the rest by the handwriting expert, with whose opinion the court agrees
(said expert included 5 more ballots, Nos. 81, 83, 93, 95, and 106, also 115,
but the court believes they should be excluded); that the 28 ballots written by
Bembenuto Bersamina were all identified by him, except one, No. 80, which was
found by the handwriting expert and is deemed by the court to have been written
by Bersamina; that, likewise, Juan Salvadora recognized 31 ballots as having
been written by him, and the court is convinced that the other 55 ballots found
by the handwriting expert were also written by this inspector; that all these
184 ballots are for the protestee Manuel Crescini, there being not a single vote
by any illiterate elector for any other rival candidate; and that 20 of the
ballots filled out by Juan Salvadora were found completely untampered with,
showing that they never had been folded.
“In the election returns Exhibit G-Iriga the statements, among others, are
made that the polls were opened at 7 o’clock in the morning and remained open
continuously until 8 o’clock in the evening; that according to the registry
lists the number of persons who voted was 288; and that the number of ballots
found in the ballot box was 285.
“The same returns, however, also state that the canvass of the ballots showed
that for the office of governor:
Manuel Crescini
received……………………………………….Engracio Imperial
………………………………………………….Andres Garchitorena
…………………………………………….Fulgencio Contreras
………………………………………………Severo Cea
…………………………………………………………….Felipe Momponbanua ……………………………………………. Francisco
Botor……………………………………………………..
…………………………………………………………..
“The list of illiterate voters presented by the protestant as Exhibit 5-A
Iriga contains the names of 167 persons who it is alleged, ‘requested to be
assisted by the inspectors, on account of these electors being incapacitated,
and subscribed their oath of incapacity/ Said list shows that the inspector Juan
Castro assisted 65, Bembenuto Bersamina 35, and Juan Salvadora 66. Another name
is given, without specifying who rendered the assistance.
“Such are the facts shown to have been proven by the documentary evidence
above mentioned, with respect to which there-is not the least dispute. The
question or questions which require solution are those that arise from the many
discrepancies discovered in comparing one proof with another, and even the
different parts of the same document with each other. These questions may be
comprised within the following simple proposition: Whether or not
irregularities, illegalities, and frauds were committed in the elections held in
this election precinct.
“Commencing with the election returns, the first fact
noted is that the voting was prolonged until 8 o’clock in the evening,
notwithstanding that no more than 285 electors voted, and this is undoubtedly an
irregularity. Secondly, it is made to appear that 285 electors voted, but
following this statement, just below it, is another which shows that 287 votes
in the aggregate were cast for governor, exceeding by 2 the number of voters.
This may be an innocent mistake, but it is none the less another irregularity.
Thirdly, the returns state that the number of ballots found in the ballot box
was 285, while the commissioners and the court found there only 284—a
difference of one ballot This might be allowed to pass as an involuntary error,
but it is also another irregularity.
“Coming now to the matter of the ballots themselves, our attention is greatly
attracted by the large proportion of those written by the inspectors, 65 per
cent of all the votes cast; but this is nothing as against the discrepancies
found on comparing this number with that of the illiterate voters as shown by
the list of the latter.
“One hundred and eighty-four ballots were written by the inspectors, which
show that 181 illiterate electors were assisted by them. Of this number 69
should pertain to the inspector Castro, 27 to Bersamina, and 85 to Salvadora.
But the list of illiterates attests that only 167 of them were assisted: 65 by
Castro, 35 by Bersamina, and 66 by Salvadora. From this it follows that the
first inspector wrote 4 and the last one 19 ballots more that do not correspond
to any assisted elector, while the second inspector wrote 8 ballots less than
the number attested to have been written by him, that is, 8 votes by disabled
electors disappeared.
“If we turned our attention only to the number of the ballots identified by
the inspectors themselves as having been written by them, consequently excluding
those discovered by the handwriting expert and by the court, we would find a
still more unexplainable difference, inasmuch as the sum of the ballots
identified by the inspectors is only 113, while according to the list the number
of supposed illiterate assisted 167.
“In view of this discrepancy, there is no doubt that the list of illiterate
voters presented as Exhibit 5-A-Iriga is inadmissible. It was not found among
the documents which the municipal secretary transmitted to the court when he was
directed so to do.
“Juan Castro stated that said list was made on the very day of the elections
and that the succession of the names therein contained corresponds more or less
to the order in which the owners of these names voted. Several of the names
however, particularly the last ones, are not in such relationship with the order
of the voting, as may be readily seen from the following table:
153. Policarpo Salvadora …………………………………. 154. Pantaleon Iraola………………………………………. 155. Estanislao Iraola……………………………………… 156. Silverio Orbon ………………………………………….. 157. Apolonio Orbon ………………………………………… 158. Pedro Orbon……………………………………………… 159. Emiliano Asiao…………………………………… 160. Laureano Adaon………………………………………… 160. Laureano Adapon …………………………………….. 161. Victor Solia …………………………………………….. 162. Norbeto Orgon ………………………………………….. 163. Gabino Tagalog………………………………………… 164. Numedico Samonte …………………………………… 165. Buenaventura Isabelo ……………………………….. 166. Casiano Tagum ………………………………………… 167. Juan Navarro……………………………………………
“Moreover, the name of Tomas Casiao figures in said list as being1 that of
one of the electors who were assisted, while according to the registration list
this elector did not vote. The list of illiterate voters also contains various
other names of electors who, according to the oral evidence, were able to read
and write and were not incapacitated from filling out their ballots.
“It cannot therefore be sustained that said list of illiterate voters is
correct and legal, and the conclusion is that the inspectors of the second
precinct failed to perform the duty imposed upon them by law with respect to the
registration of the oaths taken by disabled voters, and consequently, for the
same reasons stated in regard to the same matter in connection with other
precincts, the 181 ballots written by said election inspectors cannot be
admitted as legal.
“The most serious fact and of fatal consequence noted in connection with this
precinct is that the ballot box contained 20 ballots filled in by Juan Salvadora
which are completely smooth and with no signs of having been forged; some of
them bear traces or impressions of letters written by hand and with a pencil,
showing that the ballots must have been under others while these were being
filled out on top of them.
“Said unfolded ballots are those numbered 7, 8, 9, 10, 11, 12, 13, 14, 15,
16, 17, 18, 19, 20, 21, 22, 23, 26, 49, and 203, and those that show the traces
or impressions mentioned are Nos. 7, 11, 12, 13, 15, 17, 18, 21, 23, and 49.
“What explanation can be given to this fact such as may be compatible with
the legality of the elections and the innocence of the inspectors?
“None at all. Anyone, upon reflection, will find that it evidences or implies
the commission of illegalities and frauds.
“The most innocent explanation that can be imagined is that this inspector
Juan Salvadora, on the twenty occasions when he had to assist an illiterate
elector, did not accompany him to the voting booth, but instead went to the
inspectors’ table and there filled out the ballot without separating it from the
pile while he wrote, and was careless in not folding it and putting it in the
proper ballot box.
“But, as is seen, even this, the most innocent explanation, shows the acts
explained to be replete with illegalities, and it is useless to examine one by
one the various suppositions that might be made.
“The most complete and satisfactory explanation which the court finds is
that, during the voting, the election inspectors actually had ballots that had
previously been filled in with the name of the protestee written in the space
intended for the name of the candidate for the office of governor (this is
shown, though indirectly, by the following indisputable facts: (a) the
requisition for and receipt of the ballots and indelible pencils from the
afternoon of the day immediately the elections; (b) the existence of 20 unfolded
ballots; (c) the similarity bordering on an almost exact likeness of said 20
ballots, as regards the names of the candidates voted for; (d) the existence of
traces or impressions of letters, on some of said ballots); that all of the
ballots so prepared could not be disposed of, the 20 ballots in question,
consequently, remaining undistributed; that probably several of the
controvertible ballots, or some of those for other candidates, instead of being
rejected or counted, were spoiled and afterwards substituted by these extra
ballots (in the list there are no remarks about spoiled ballots and the four
such which were found in favor of Andres Garchitorena are in reality perfectly
good ballots); and that, in making such substitutions during the canvass of the
votes the inspectors did not notice that the ballots in question had not been
folded, for most likely all the ballots were open and spread out before them
while being examined. All these facts show nothing but a series of illegalities
and frauds of the most serious nature.
“Neither is the registration list exempt from irregularities and the fact of
permitting registered persons to vote after they had been excluded is another
proof of another illegality. In said list 54 registered names appear, opposite
whicj the following note was placed by the inspectors: ‘Excluded through
challenge by the municipal treasurer/ One of the challenged electors voted, and
31 did not.
“Furthermore, the oral evidence shows that there were cases of violation of
the secrecy of the ballot, of electioneering by the inspectors and policemen on
guard within the polling place itself, and that Garchitorena was defrauded of
several votes (eleven [11] witnesses testified that they voted for this
candidate, and nevertheless only one ballot was found to have been cast for him,
or five [5], including the four [4] found among the spoiled ones; for these four
are good ballots and should be counted).
“There were therefore several illegalities and frauds that sully the purity
of the votes cast in this second precinct. In view of all the preceding
statements, can the good votes be distinguished in order to separate them from
bad ones deposited in the ballot box? It would be very difficult or perhaps
impossible to do so, just as it would be to follow step by step the whole course
of the election, and watch one by one the acts of the inspectors. Let us try
however to proceed to make such a distinction under guidance of the most liberal
rule possible, and we shall see what result is attained.
“For the reasons elsewhere explained, 181 votes cast by illiterate electors
should not be accepted. The other irregularities or illegalities in reference to
votes of illiterate electors may add to their unlawfulness, but cannot increase
their number; the same may be said in connection with other frauds committed
against these votes. Such irregularities and frauds may perhaps make the votes
affected by them more repudiable than they are, but their effects are
circumscribed to the group to which such votes pertain; they cannot contaminate
the other votes honorably cast. That the 20 filled in and unfolded ballots are
indexes of a great fraud, cannot be doubted but their fatal influence does not
pass beyond the bounds of the group to which they belong, nor beyond those of
that of the 181 ballots written by the inspectors.
“The prolongation of the voting until 8 o’clock in the evening can produce
the nullification of the votes cast between 6 and 8 o’clock in the evening,-but
nothing more. In the present case it is relatively easy to ascertain the number
of such votes, and it is already known or should be presumed that they are all
for the protestee, inasmuch as nearly all the votes cast in the precinct are for
him. As 285 electors voted, according to the returns, and the polls were open
for 13 hours, under similar circumstances 43 electors at the most must have
voted between the hours of 6 and 8 in the evening which gives another
determinate number of illegal votes.
“As certain persons excluded from the registration list voted
notwithstanding, the measure of this illegality is also determinable and is
determined by merely scanning said list, which attests that the number of such
excluded electors is 21.
“The votes vitiated through other causes can perhaps be determined by an
examination of the evidence adduced by the protestant, and, on the supposition
that such evidence has been given its due and full weight, they would be
distributed as follows: for violation of the secrecy of the ballot 3, for undue
and improper influences 5, and as votes fraudulently wrested from Garchitorena 6
(11 less 5).
“There would thus be a total of about 259 excluded votes, that is, nearly all
those-cast in the precinct; and if it is taken into account that there still
remain several challenged ballots, some as being marked, others because they are
illegible, a few for the reason that they bear certain defects, such as blots,
the writing of the name outside of the proper space, etc., it will be seen that
the result is practically the annulment of the election held in the whole
precinct.
“In reality some of the illegalities that mark the purity of the election in
this precinct are of such a nature that it is impossible to identify with any
degree of certainty the vitiated votes in order to distinguish them from the
good ones, particularly if account is taken of the fact that the same
irregularities occurred in this precinct as in the first, as regards the
conditions of the polling place, the voting booths, and the ballot boxes.
“It is unnecessary to repeat here the considerations already set forth above
and by reason of whicjh the returns and the elections held in the first precinct
were rejected and set aside. For the same reasons the court finds that the
elections held in the second election precinct of Iriga should be, as are
hereby, set aside.
“THIRD PRECINCT.
“In order that this decision may not be too lengthy, the court will say at
once briefly that in this precinct the same irregularities and similar frauds
and illegalities were committed as in the first and second precincts.
“Two hundred and fifty-nine ballots were found in the ballot box, and 116 of
these were identified by the inspectors as having been written by them (without
counting some nine others which the handwriting expert identified), distributed
as follows: the inspector Ciriaco Alfilor, 56; Pablo Aguilar, 30; and Manuel
Seguera, 30. According to the list presented by the protestee himself, 95
illiterate were assisted.
“A slight examination of the table below inserted wil suffice to show at once
the discrepancies between the ballots identified by the inspectors and the list
of illiterate voters. It must be borne in mind that this list is one of names,
beside each one of which are those of two assistant inspectors, and taking any
of said names, the first as that of the clerk and second as that of the witness,
or viceversa, nothing is discovered except an unexplainable disagreement. Here
is a table:
blank………………………………………….
“Said list (Exhibit 4-Iriga) bears the following heading:
‘List of the qualified electors who voted in the 3d precinct,’ and shows in
their proper numeration the following names among others, to wit: Juan Barroga
35, Marcos de los Reyes 146, Tomas Oliva 198, Agaton Oliva 199, Marcos de los
Reyes 209, Tomas Oliva 198, Agaton Oliva 199, Marcelo Tabayag 209, and Tomas
Gonzalez 226. However, the registration lists disclose that Juan Barroga did not
vote, and that Marcos de los Reyes, Tomas Oliva, Agaton Oliva, and Tomas
Gonzalez were registered in the second precinct, not in the third, and they too
did not vote. Marcelo Tabayag’s name is not found on any of the registration
lists of Iriga, that is to say, he was not an elector.
“As may be seen, this list Exhibit 4-Iriga, is not a faithful record of the
manner in which the election was conducted in this precinct, or, if it is, then
it is a positive proof of the illegalities shown by it to have been committed.
In either case, it cannot be admitted as evidence that the inspectors proceeded
legally in conformity with law with respect to the illiterate electors.
“So then, the votes cast by the latter, and which number is 113 (116 less 3),
must meet the same lot as the rest cast under similar conditions in the first
and second precincts; they cannot be admitted as legal and irrefutable proofs of
fraud stand against the inspectors.
“The court can not explain the fact of there having been found 269 good
ballots and two groups of spoiled ballots (one group of 13 ballots which bear on
their reverse side the word ‘spoiled,’ and another one of 15 without this word).
He has examined, very scrupulously and with the greatest care, the registration
lists of the third precinct, and has found that 282 electors were registered, of
whom only 254 voted and 28 did not. According to these lists, only 13 ballots
were spoiled during the voting.
“So then, there are 5 more good ballots than there should be, and 15 other
surplus ballots (also good, though placed among the spoiled ones) the
genuineness of which is much under suspicion, and as no explanation whatever was
made of this matter, and furthermore as the court finds that these 15
unblemished ballots which are among the spoiled ones really must have been
rejected during the canvass (which implies their substitution), he believes that
there were also in this precinct some 20 surplus ballots, which were placed in
the manner above related, and the word ‘surplus’ necessarily awakens the idea
that, as in the other precincts, ballots were used which had been prepared
beforehand by filling in the protestee’s name for the office of governor.
“If the registration list is correct, as it ought and is presumed to be, for
the litigant parties raised no question whatever in respect to its exactness, no
more than 254 good ballots and 13 spoiled ones could have been found in the
ballot boxes.
“Also in this precinct the voting was prolonged until 7 o’clock
notwithstanding that no more than 282 electors were registered and that only 254
of them voted.
“In the polling place of this precinct, just as in those of the first and the
second, several electors were allowed to vote whose names appear in the
registration list under the following note written by the inspectors themselves:
‘Excluded through challenge by the municipal treasurer.’ Thirty-two of the 51
electors so excluded voted.
“Two ballots (Nos. 110 and 231) bear two different handwritings and show that
the inspector Seguera wrote the name of Manuel Crescini for governor, and the
elector the names for the other offices.
“Several ballots for the protestee which ought to have been rejected on
account of marks, blots, or other defects were admitted and counted, while the
few that were found with the name of Andres Garchitorena for governor (9
ballots) were either rejected or spoiled, it is not known exactly which, but the
court has decided that at least 7 of the latter contain no defects such as might
bring them into dispute.
“It was proven that in this third precinct, as in the first and the second,
the secrecy of the ballot was violated and electioneering was done in the
polling place. Twenty- four electors testified that they voted for the
protestant Andres Garchitorena; their votes however disappeared, only one of
them being accounted for in the returns and found among the good ballots, and 9
were found among the spoiled ballots.
“The court is desirous of adopting the most liberal rule possible to guide
him in passing upon the matter in hand, as he already stated with respect to the
second precinct, and accordingly shall endeavor to determine the vitiated votes
in order to separate them from the good ones; but it has already been seen that,
due to so many irregularities and illegalities, the application of such a rule
brings the result that the number of votes to be deducted is nearly equal to the
total of the votes cast in the precinct, which is practically tantamount to an
annulment of the elections held therein.
“On account of such frauds and illegalities held to have been proven, as well
as of the nonfulfilment of the law as regards the installation of the polling
place and the conditions of the voting booths and ballot boxes, and also because
of the legal doctrines and the authorities above cited, the court is of the
opinion that, in view of all the circumstances of the case, it is impossible to
arrive at a positive determination of how many votes are affected by such
fraudulent irregularities, and how many are not.
“The court therefore holds that, with respect to the third precinct of Iriga,
the extreme measure must be adopted of rejecting the returns of its inspectors
and setting aside the elections held therein.
“Municipality of Lagonoy.
“The grounds of the protest with respect to this municipality are :
” ‘(a) The polling place of this precinct was situated in the upper story of
a house, and, notwithstanding that 225 electors were registered in this
precinct, only four booths were constructed for voting purposes.
” ‘(b) On the 27th of May of the present year, the Court of First Instance
of this Province of Ambos Camarines issued an order annulling the appointment of
election inspectors and poll clerk made by the municipal council of this
municipality in favor of Esteban Mendoza, Balbino Frondoso, and Doroteo Totañes,
as inspectors, and Quintin Bona, as poll clerk, and ordered said council to
proceed to appoint new election officers within 48 hours after it had been
notified of said order. Consequently, on June 5, 1916, the council appointed new
election officers in the persons of Gaudencio Presentacion, Gil Forteza, and
Manuel Ledesma, as inspectors, and Ananias Obias, as poll clerk.
” ‘(c) On the day of the election, June 6, 1916, said election inspectors and
poll clerk recently appointed took the oath required by law, but when they
attempted to assume possession of their respective offices they were rudely,
improperly, and unlawfully opposed by the former election inspectors and poll
clerk whose appointment, as aforesaid, had been annulled by the Court of First
Instance of this province. Said former election officers not only made such
rude, improper, and unlawful opposition in obedience to instructions previously
given by governor Jose Fuentebella, a most devoted partisan of the protestee,
who proposed the appointment of these officers, but also refused to deliver to
the new officers all the election documents, papers, and equipment, and to leave
the polling place, as in fact they did not leave it, and in such manner
prevented the new officers from acting and from holding the elections, which
latter officials, notwithstanding, remained in the polling place on the said 6th
day of June from 7 o’clock in the morning to 7 o’clock in the evening, when they
retired without holding the election.
” ‘ (d) After said new election officers left the polling place, said Esteban
Mendoza, Balbino Frondoso, Doroteo Totafies, and Quintin Bona, intrusively
assuming authority as election inspectors, the first three, and as poll clerk,
the fourth, did, in obedience to orders given by Governor Fuentebella, hold the
election from 10 o’clock at night until 3.35 p. m. of the 6th of June
aforementioned, at which latter hour they rested until 6 o’clock in the morning
of the following day, June 7th, when they recommenced their labor and continued
it until noon, in order to accomplish, as they did from this latter hour, the
canvass of the ballots.
” ‘(e) About eighty voters registered in said precinct did not vote, some of
them because, in view of the fact that the election was not held on the 6th of
June, between 7 a. m. and 6 p. m., they believed there would be no election, and
others because they believed and believe that the election held by said
intrusive officers was and is illegal, null, and void, and, besides, they had no
confidence in the honesty and morality of the latter.
” ‘(f) Said intrusive election officers carried on the voting by
capriciously calling the electors by their names, four at a time, from the place
where these voters had gathered at a distance of 30 meters from the polling
place, for, like the public in general, they were not allowed to be in or nearer
the polling place, which was surrounded and guarded by policemen and
Constabulary soldiers carrying guns with fixed bayonets, who also patrolled the
house of an elector named Ibo Alvarez not permitting anyone to go out of it, and
abused several electors awaiting their turn to vote.
” ‘(g) Said intrusive officers, within the polling place and inside the
booths themselves, unduly and improperly influenced, and used threats and force
upon the voters already daunted by the exhibition of the armed force around the
polling place, to the end that such electors might vote for the respondent
Manuel Crescini. The electors wiio were so unduly and improperly influenced by
threats and the exhibition of force are Bonifacio Rosero, Juan Florence,
Valentin Primavera, Ciriaco Rivero, Dalmacio Kellora, and Gerardo Romulo, and
others whose names are at the present time unknown to the petitioner.
” ‘(h) Said intrusive officers prepared the ballots of the illiterate
electors without inquiring of them as to whom they wished to vote for, and
without paying heed to the indications made to them by said electors in
reference to the latter’s choice of candidates for the various offices.
” ‘(i) Said intrusive officers made fraudulent record that 134 electors
voted, while in reality no more than 115 electors voted in that election.
” ‘(j) In view of the secrecy that attended the acts of said intrusive
officers, and of the fraud alleged in the preceding paragraph, the petitioner
believes, and so alleges, that these officers read on some ballots the name of
the respondent for the office of provincial governor, although the name of the
petitioner or that of some other candidates for governor was written
thereon.
” ‘(k) Governor Jose Fuentebella, in connivance with the respondent,
suspended the municipal president of said municipality, at 7 o’clock in the
evening of said 6th day of June, and ordered him to respect the authority of the
chairman of the election board, Esteban Mendoza, and did all this because said
municipal president, since the morning of said day, tried to expel from the
polling place said intrusive officers in order that those recently appointed
might act instead.
” ‘(l) A few moments before the voting commenced, and during its progress,
said false election inspectors distributed to the voters official ballots that
had previously been filled in with the name of the respondent as the choice for
the office of governor, without said voters having expressed their desire to
vote for the respondent, and these ballots were placed in the ballots box and
counted during the canvass as votes for the respondent. Moreover, said election
officers did not, before receiving the votes of the illiterate electors or of
those physically unable to write, require them to take the oath of illiteracy or
of physical disability.
” ‘(m) Said false election inspectors did not deliver the ballot boxes,
together with the election documents, to the municipal secretary immediately
after the termination of the canvass of the votes, but said boxes and documents
were retained by these inspectors until the day when this court required the
same to be transmitted to it.’
“From the documentary and oral evidence produced during the trial, it is
shown that the general elections held in the municipality of Lagonoy, Ambos
Camarines, in the month of June, 1916, had the following antecedents and took
place under the following circumstances:
“The municipal council of Lagonoy met several times in order to proceed to
the appointment of election inspectors and a poll clerk, and, prior to May 31,
1916, did appoint Esteban Mendoza, Balbino Frondoso, and Doroteo Totafies as
inspectors, and Quintin Bona as poll clerk.
“On said date of May 31, 1916, this court, deciding the petition for a writ
of mandamus wherein Eulogio Froa is petitioner and the municipal council of
Lagonoy and others are respondents (Civil Case No. 2020), held that the
appointment of said election inspectors and poll clerk, Esteban Mendoza, Balbino
Frondoso, and Doroteo Totanes, and Quintin Bona, was null and void and of no
value, and issued a peremptory mandamus directed to the municipal council of
Lagonoy of the province of Ambos Camarines, directing that, within forty-eight
hours after service of notice of said order, it meet and proceed to appoint
election inspectors, two of whom should be such persons as the petitioner
Eulogio Froa might propose. (Exhibit F.)
“In said Civil Case No. 2020, said Esteban Mendoza, Balbino Frondoso, Doroteo
Totañes, and Quintin Bona, as appointed election inspectors the first three, and
as appointed poll clerk, the fourth, were respondents, together with the
municipal council of Lagonoy.
“The dispositive part of the judgment referred to was telegraphed by the
clerk of the court to the muncipal council of Lagonoy, through the municipal
president of San Jose, inasmuch as it was of an urgent nature and there was no
time to lose.
“Upon notification and due call by the municipal president, the council met
in special session on June 5, 1916, and proceeded to comply with the order of
the court by appointing Gil Forteza, Gaudencio Presentacion, and Manuel Ledesma
as election inspectors, and Ananias Obias as poll clerk, to substitute Esteban
Mendoza, Balbino Frondoso, Doroteo Totañes, and Quintin Bona.
“What happened afterwards, that is, on the day of the elections, is set forth
in the statement drawn up by the election inspectors and poll clerk last
appointed, protestant’s Exhibit J, the contents of which are as follows:
” ‘In this single polling place of the municipality of Lagonoy, province of
Ambos Camarines, P. I., today, the sixth of June, 1916, at five o’clock in the
afternoon, we, the undersigned election inspectors, hereby solemnly set forth
that at 6.30 a. m. of this date we went to the polling place for the purpose of
fulfilling the duties and obligations imposed upon us by law as election
inspectors legally appointed by the municipal council at its session held at 9
p. m. of the 5th instant, but that we were unable to enter the polling place for
the reason that we were stopped and expelled beyond a distance of thirty meters
therefrom by Constabulary guards and the whole municipal police corps. who.would
not admit us to the polling place and alleged that in prohibiting our entrance
thereto they were obeying orders given them by the municipal president and
presiding officer of the sostyled election board which, according to said
guards, was lawfully assembled. Therefore, we, the undersigned inspectors, for
the purpose of avoiding our being held in any way liable under the law, had to
seek the protection of the municipal president, and, after he had conferred with
the Constabulary lieutenant, the fictitious inspectors permitted us, the
undersigned, to enter said polling place, whereupon we took the required oath
and requested of said municipal president that said intrusive inspectors be
expelled and that he oblige them to deliver to us all the documents, minutes,
ballots, and other official papers concerning the election, but said intrusive
inspectors refused to deliver the same and likewise their possession of the
polling place, and notwithstanding that the municipal president ordered the
policemen to eject them from the polling place, these officers refused to comply
with the municipal president’s orders, which refusal was countenanced and
approved by the chief of police who also refused to obey these orders.
” ‘In view of these facts, we, the undersigned legally appointed inspectors,
had to remain in the polling place and officially confer with the municipal
president to the end that the intrusive inspectors Esteban Mendoza, Doroteo
Totafies, Balbino Frondoso, and the poll clerk Quintin Bona, might permit
compliance and themselves comply with the orders given by said municipal
president, so as not to waste time in detriment to the holding of the election.
But said intruders were obstinate and refused to permit the election to be held
and by such obstructive acts prevented the fulfilment of the provisions of the
Election Law until the hour of 5 p. m. arrived, at which hour the law directs
that the polls shall be closed, and as a result of said obstruction the electors
who had been waiting since the morning were unable to vote until 5 p. m.
” ‘Wherefore, we hereby make record of the foregoing facts in order to avoid
the very serious liability which the law might exact of us.
” ‘In witness whereof we, all the members of the election board, sign these
presents, which I, the poll clerk, certify.
” ‘Signed: Gaudencio Presentation.—Gil Forteza.—Manuel Ledesma.—Ananias
Obias.—Elections Inspectors and Poll Clerk.—Ibo Alvarez.—Elector.—Pedro Demesa.—
Elector.—Sofronio Bautista.—Elector.—Macario Ledesma. —Elector.’
“The previous election board formed by Esteban Mendoza, Balbino Frondoso,
Doroteo Totañes, and Quintin Bona, whose appointment, as aforestated, was
judicially declared to be invalid, null, and void, willfully disregarding the
court’s decision, to which it did not except in due time and form, and being in
possession of the ballots, documents and other things necessary for the
election, proceeded to hold said election by opening the polls some time between
9 and 10 o’clock at night of the 6th day of June and closing them at about 5
o’clock in the afternoon of the next day, the 7th, with some interruption, for
the purpose of getting a little rest, lasting until about the dawn of the day
last mentioned.
“At these elections more than 8 duly qualified and registered electors were
unable to vote and did not vote, either because of the considerable delay or,
more properly speaking, by reason of the change of time in the opening of the
polls, or because they knew that the persons who were acting as election
inspectors and poll clerk had been dismissed from office by an order of this
court, or because of both reasons.
“These facts are fully sustained by the evidence. Nevertheless, the protestee
argues that the reason why the election was delayed is because the protestant,
together with the municipal president Pedro Demesa, the justice of the peace Ibo
Alvarez, the municipal secretary Sofronio Bautista, and more than fifty other
persons, assaulted the polling place, molested the election inspectors, and
tried by force to take away from them the ballot boxes, ballots, and other
papers pertaining to the board of inspectors, and because such assaulters were
within the polling place from the time the polls were opened until 7 o’clock in
the evening of the 6th, at which hour the inspectors above mentioned were free
to hold and continue the election. The protestee also asserts that Esteban
Mendoza and the latter’s companions were de facto election officers, since they
had not been duly notified of the decision of this court in which it was held
that their appointment was null and void and of no value.
“The most impartial testimony relative to these facts is without doubt that
given by Porfirio Zablan, Constabulary lieutenant, who had been assigned to do
service on the day of the elections in the towns of Sagnay, Tigaon, Goa, San
Jose, and Lagonoy, and who had a hand in the matter. The relevant part of his
testimony is as follows:
” ‘A. While the justice of the peace was talking, the municipal president
arrived, informed me that Esteban Mendoza and his (the latter’s) companions were
not the genuine election inspectors, and requested me to remove these inspectors
and gather up the papers so as to deliver them to him. I replied to him that I
had nothing to do in the matter, and that I was there solely for the purpose of
keeping order. He then told me that there was an order of the court, signed by
the clerk of the court Mr. Cortes, which he, the municipal president, wished to
be complied with. He also told me that he wished that order to be obeyed, but
that he was powerless to force obedience to it. I then suggested to him that, as
official head of the town, he had the police under his orders, and he replied
that the police would not obey him. When I inquired of the chief of police about
this, he told me that he was willing to obey the municipal president. Then the
municipal president told me that he was going to suggest our proposal to the new
inspectors, to which I said that I had no objection. He went to the polling
place with four men, three of whom were the inspectors and the fourth the poll
clerk. Fearing that there might be a disturbance, I went up the stairs leading
to the polling place and remained at the landing of the stairway. When I
arrived, there was a discussion between the persons who had recently come and
those already there.
” ‘Q. Who were those who were already there? A. Mendoza and his companions.
This discussion or conversation continued, and after a little while I heard a
noise as if something fell to the floor, then I heard men from both sides call
out, “Police, police.” I entered and told them that that was enough, and that
they might proceed with order. I also informed them that I would arrest and put
in jail anyone who disturb order there. Both parties asked protection of me.
Mendoza and his companions requested me to protect them, and the last appointed
inspectors asked me to expel the first appointed inspectors, and vice versa. I
told them that I had nothing to do with the proceedings of the inspectors, and
that I was not there to put anyone in as inspector or to remove anyone and put
in somebody else in his place. Then Mendoza asked me to put out the new
inspectors so that he and those who had been appointed with him might continue
with the elections, as they were the true inspectors. I told them again that I
had nothing to do with the elections. The new inspectors told me there was an
order by the court to the effect that they were the true inspectors. Mendoza
replied: “I have not been notified of anything. I know nothing of it. The fact
is that I have been appointed inspector and have signed for the papers and
documents, for which I am responsible.” While Mendoza was saying that he knew
nothing of that order, the municipal president showed it, saying: Here it
is.
“The above quoted testimony is corroborated not only by that of other
witnesses presented by the protestant but also and chiefly by the very testimony
given by Esteban Mendoza, Balbino Frondoso, and Doroteo Totañes.
“There is no justification, nor can there be any, for the conduct observed by
these men, Esteban Mendoza and his companions, after they had been duly
requested by the municipal president and by the new election inspectors and the
new poll clerk to leave the polling place and deliver to said inspectors and
poll clerk the papers, documents, and other paraphernalia pertaining to the
elections, and that conduct shows nothing but a disregard of the law, contempt
to the order issued by this court and to the authority of the municipal
president, and actual resistance on their part in order that they might not give
up their position as election inspectors and poll clerk.
“But, aside from all this, the elections held in the single precinct of
Lagonoy under the direction of those men, Mendoza and his companions, were
actually conducted from between 9 and 10 o’clock of the night of June 6th until
5 o’clock in the afternoon of the following day, June 7th, 1916.
“Pursuant to section 543 of the Administrative Code, at all the elections
held under the provisions of this chapter the polls shall be open from seven
o’clock in the morning until six in the afternoon; and, according to section 494
of the same Code, the day set for the holding of the general election is the
first Tuesday in June of every leap year.
“The elections at Lagonoy, presided over by Esteban Mendoza and his
companions, are to be considered as having been held on Wednesday, the 7th of
June, inasmuch as the principal part of the voting was done on that day, instead
of on Tuesday, June 6th, or, as the protestee avers, the polls were opened at 7
o’clock of the morning of the 7th. In either case, it necessarily follows that
the elections are null and void.
“This conclusion is clearly drawn from the language of the provision
contained in section 495 of the Administrative Code, pursuant to which an
election may be post-poned by the Governor-General with the consent of the Upper
House of the Philippine Legislature, for such time as is deemed necessary, only
when there is rebellion, sedition, brigandage, epidemic, public calamity or
analogous cause which makes the holding of the election impossible or
impracticable.
“This means that, outside of the cases provided for and without an express
order by the Governor-General, with the consent of the Senate, in no other case
and by no other authority can the holding of an election be postponed.
“What occurred in Lagonoy on June 6, 1916, is far from being one of the
reasons specified as a lawful cause for postponement, and Esteban Mendoza and
his companions had absolutely no authority to provide that the election should
be held at a different hour and on a different day from those fixed by law.
“If there should still be any doubt on this point, it would be dissipated
merely by a citation of the following authorities, among others, and of the
following legal doctrine:
” ‘The time for the holding of an election is of the substance of it; and an
election held at a time not fixed by law itself or by a person authorized to do
so, must be declared to be null and void.’ (15 Cyc, 341.)
” ‘Those provisions of
law which fix the time or place of holding elections are to be construed as
mandatory, * * * . As to the time of the election, of course the day cannot be
changed even by the consent of all the voters, and the general rule is, that if
the polls are not kept open for as many hours as the law directs, and if legal
voters in numbers sufficient to change the result, or to render it doubtful,’
are thereby deprived of the privilege of voting, the election must be set aside.
A few minutes’ delay in opening the polls will make no difference, but several
hours’ delay may render the election void, and certainly will have that effect
if the party complaining of it can show that he has been injured thereby.’
(McCrary, p. 125; Villamor, par. 617.)
“In the instant case it is not a question of a few hours’ delay, but of there
having been legal voters in sufficient number (more than 80) to have changed the
result or rendered it doubtful, who could not vote or failed to do so.
“According to the motion, the protestee had in this municipality 91 votes,
Andres Garchitorena, the protestant, 30 and certainly the 80 or more voters who
could not or did not vote would have, had they voted for Andres Garchitorena,
produced a majority for him, and not for the protestee, or at least their number
was such as to render the protestee’s triumph doubtful in the municipality of
Lagonoy, a fact which of course has a great bearing on the total recount.
“Having arrived at this conclusion, the court believes that it is unnecessary
to discuss the various other questions concerned in this matter, such as those
that pertain to the irregularities of the election.
“Therefore, as the elections held in Lagonoy were null and void, which
elections were held, presided over by Esteban Mendoza and his companions, for
the purpose of filling among other offices, that of provincial governor of the
province of Ambos Camarines, for and during the term beginning on October 16,
1916, the court decides that the election returns of the single precinct of
Lagonoy should be, as they hereby are, rejected.
“Municipality of Minalabac.
“The protestant alleges in his motion:
” ‘(a) That in this precinct 34 electors duly inscribed in the registration
list of the same failed to vote on the day of the election, not through any
fault of theirs nor waiver of their rights, but through the want of official
ballots, for, at about 2 o’clock in the afternoon of said day, while said 34
electors were in front of the polling place ready to vote, the board of
inspectors of this precinct informed them that the supply of official ballots
transmitted to it was exhausted, wherefore it was obliged to suspend the voting
with a view to resuming the same upon the arrival of more official ballots which
had been requisitioned from the proper authorities. Said 34 electors awaited in
vain the arrival of those requisitioned ballots, and until the next day, when,
due to their failure to arrive, the canvass was proceeded with. Thus wefe said
electors deprived of the exercise of the right of suffrage.’
“At the hearing, the protestee stated that he would offer no objection to an
annulment of the election in the municipality, as the facts alleged in the
motion were true. The record bears no evidence of the number of electors
registered in Minalabac, but, having in sight the certificate of the canvass
made by the provincial board (which accompanies the motion as Exhibit A, and
according to which the votes obtained by each candidate for the office of
governor are: Manuel Crescini none; Andres Garchitorena 10; Engracio B. Imperial
8; and Francisco Botor 63), it is seen that 34 duly registered electors is a
considerable number for the precinct of Minalabac, and the fact of their being
unable to vote, despite their desire to do so, has undoubtedly affected the
result of the elections in this municipality.
“It is therefore held that the erections conducted in the single election
precinct of Minalabac are null and void, and the votes cast at said elections
for the protestant and the protestee should not be counted in the general
canvass of all the votes cast in the province.
“Municipality of Mambulao.
“In this municipality the question at issue merely concerns the revision of
the 19 ballots rejected by the inspectors during the canvass and which are now
claimed by the protestant. The protestee, in turn, claims two ballots of those
rejected by the inspectors and challenges six of those counted as for the
protestant. After an examination of these ballots the court decides:
“That the following ballots should be and are hereby admitted: No. 2, ‘Andres
Gachitorena;’ No. 3, same as No. 2; No. 4, ‘Andres Gathetorina;’ No. 6, ‘Andes
Garcitorina;’ No. 7, ‘Andres Garchotorrena;’ No. 2 [12 ?], ‘Andres Gatsiturina;’
No. 13, ‘Andres Garchetorina;’ No. 14, ‘Andres Gatcitorina;’ No. 15, ‘Andres
Garchtorena;’ No. 16, ‘Andres Garchitorina;’ and No. 17, ‘Andres Garchiturina.’
In all, eleven votes.
“That the rest of the ballots claimed, wherein appears the name ‘Aandreso,’
or ‘Andreson,’ or ‘Andrisson,’ or even that of ‘Andres Garchitorena’ in the space
allotted for the name of the candidate for representative, should be and are
hereby rejected.
“That, of the six (6) ballots challenged by the protestee, four (4) are
admitted and counted as for Andres Garchitorena. The remaining two (2) are
rejected.
“That the two ballots rejected by the inspectors during the canvass and
claimed by the protestee as legal votes cast for him are admitted.
“Municipality of Nabua.
“The protest made with respect to this municipality alleges that:
” ‘The liberality of the procedure had in the election precincts of Bato and
Iriga, whereby the votes of more than 300 electors were admitted after the hours
for the closing of the polls (6 p. m. on the day of the elections), was not
observed by the election board of the precinct of Nabua, for two of the
inspectors of the latter precinct, whose names are Juan Vega and Juan Goleta,
partisans of the protestee, decided, in face of the opposition and dissidence of
the other inspector Luis Ocampo, a partisan of the protestant, not to have the
polls remain open after 6 p. m., for which reason more than 80 electors
registered in this precinct failed to vote therein, notwithstanding that they
were all present and in front of the polling place at that hour ready to vote.
These tactics on the part of the majority of the board of inspectors of Nabua,
very different from those followed by the boards of inspectors of Bato and
Iriga, were adopted in view of the fact that not all the election inspectors of
Nabua were partisans of the protestant, and besides because the protestee knew
that a great majority of the electors of Nabua were partisans of the
protestant.’
“The protest was practically abandoned, inasmuch as the parties did not
produce any proof in support of their respective allegations, the protestant, in
his motion, and the protestee, in his answer. On the other hand, considering as
true the facts alleged, it is clearly seen that the procedure had was not
contrary to law, and that there is no evidence that the elections held in the
single precinct of Nabua were in any manner vitiated.
“Municipality of Sagnay.
“The protest as regards this municipality is founded on the following facts
alleged in the motion:
” ‘(a) The polling station of this precinct was in the upper story of a
house. Its two booths were separated one from the other only by a screen; they
had no walls on two of their sides, and no doors, so that their inside could be
seen from the outside. Thus, the voters while preparing their ballots in these
booths were in everybody’s view. This polling place was not provided with the
guard rail required by law for the due separation of the public from the ballot
boxes and the booths.
” ‘(b) Notwithstanding the fact that 195 electors were registered in this
precinct, only two booths, as aforesaid, were constructed and provided, and 188
electors prepared their ballots and voted in these only two booths.
” ‘(c) The election inspectors of this precinct, Constancio Cater, Roque
Caneo, and Jose Tria, denied the public and the electors access to the polls and
to any place within a radius of 30 meters therefrom during the voting. The
electors who in a crowd were awaiting their turn to vote, stationed at a
distance of 30 meters away, were called to the polls one by one by name, not in
the alphabetical order of their names but capriciously as best suited the
inspectors themselves.
” ‘(d) All and every one of said inspectors were and are steadfast partisans
of the protestee, and during the voting worked so much to favor him that they
did not restrict their efforts to mere electioneering, as they did electioneer,
within the polling place and the voting booths, but also availed themselves of
threats and force to compel the electors, while these were preparing their
ballots, to vote for the protestee.
” ‘(e) When the electors iwho could read and write went to the booths to vote,
said inspectors followed them in, in order to see and witness the preparation of
these electors’ ballots, and there in the booths did electioneering, and used
threats and force upon the electors to induce them to vote for the protestee.
The names of such electors so unduly and unlawfully influenced, as alleged in
this paragraph and in the next preceding one, are: Filomeno Austria, Graciano
Jallores, and Potenciano Cortes, and there are still others whose names are at
this moment unknown to the protestant.
” ‘(f) Said inspectors prepared the ballots of the illiterate voters without
inquiring of them or consulting them as to whom they desired to vote for, and
after the ballots had been prepared the inspectors themselves, folded them and,
without showing their contents to the respective electors for whom they had been
written, deposited them in the ballot box, ordering the latter immediately to
leave the polling place.
” ‘(g) The inspectors themselves prepared the ballots of the illiterate
voters and of those who were physically unable to write, without previously
requiring of them and having them take the oath prescribed by law.
” ‘(h) During the canvass of the ballots, the watchers there present noticed
that a large majority of the ballots read had been prepared by only three or
four different persons, as shown by their handwriting; that many electors who
could read and write were unable to identify their own ballots, though they were
attentive to said canvass; and that, on the recount of the ballots, 190 of them
duly prepared were found, notwithstanding that only 188 electors voted. Such
facts cause the protestant to believe, and he so alleges, that many ballots were
substituted for others prepared beforehand.
” ‘(i) Before the opening of the polls, and on the same 6th day of June, the
municipal president Hoque Gacer, and the municipal treasurer Zo. Fortuno, of
said municipality of Sagnay, bought a new trunk to serve as a ballot box and
delivered it to the inspectors. Upon delivery it was intact in all respects, as
was also its lock, and it was in fact used as a ballot box. After the canvass of
the votes, the lock of this trunk was in a broken condition, could not be opened
or closed, and said inspectors deposited the used ballots in another ballot box,
an old one.’
“At the time of the presentation of the motion, the court, in conformity with
law, ordered that the election registration lists and the ballots used in the
election be immediately produced before him and examined, and appointed the
commissioners necessary for this purpose.
“The ballot boxes of Sagnay containing the ballots and all of the other
documents used in the contested elections were brought to the court and placed
at the disposal of the appointed commissioners for examination. The result of
this examination, as recorded in the minutes or report of the commission, is
given herein below in detail:
” ‘PRECINCT OF SAGNAY.
” ‘It is hereby certified that the ballot boxes of said precinct were
completely covered with thick paper on all their sides except one, which paper
apparently was so placed for the purpose of transmitting the boxes to the court,
for no seal or signature of any inspector appears thereon. When the inspectors
were called before the commission to identify the ballot boxes, they stated that
they could not do so until said paper covering was removed, and that they did
not put on this covering.
” ‘The paper covering the sides of the ballot boxes was removed.
” ‘When the inspectors were again called, they said that the blank paper that
closed the ballot boxes was not in the same condition as that in which same had
been left by them, it appearing that the boxes were opened and that afterwards a
strip of white paper was put on over the union of the cover and the box
proper.
” ‘The commissioners decided to exhibit the ballot boxes to the court and
this was immediately done * * *.
” ‘ “* * * It was discovered that one of these ballot boxes was entirely
empty. In the other ballot box the following documents were found: Two packages
of the ballots tied together with dry grass and several loose ballots. An
examination of the latter in the presence of the parties showed this result:
Loose ballots containing two names only, for the of fices of
municipal president and governor………….Loose ballots marked on their reverse side as extra
ballots……………………….Loose ballot marked on their reverse side as ballots spoiled by the
inspectors……………….
” ‘ “Then the package tied with dry grass, the covering of which is marked
with the letter A, was opened and was found to contain 51 ballots.
” ‘ “Afterwards the other package, also tied with dry grass and the covering
of which is marked with the letter B, was opened and was found to contain 87
ballots.
” ‘ “In recapitulation. In this precinct there were found:
Loose
ballots……………………………………………………..Ballots in the package
A…………………………………………..Ballots in the package
B………………………………………….
” ‘ “According to the information given by the provincial treasurer, 290
official blank ballots were transmitted to the municipal treasurer of Sagnay.
There is therefore a shortage of 93 ballots.
” ‘ “The commission then proceeded to inspect the election returns furnished
by the provincial fiscal. Said returns show the 188 electors voted; that the
number of ballots found in the ballot box was 190; that there were two ballots
marked ‘Extra ballot;’ that one ballot was rejected as having been marked; and
that there were 42 ballots listed as marked but not as rejected.
” ‘ “According to said returns, the result of the voting for the office of
governor is as follows:
Manuel
Crescini…………………………………………………….Andres Garchitorena
…………………………………………….Severo
Cea………………………………………………………….Sulpicio
Cea………………………………………………………….Honesto
Obias………………………………………………………
” ‘ “The parties then proceeded to separate their respective ballots with the
following result:
Ballots for Manuel Crescini, not challenged…………….
Ballots for Manuel Crescini, challenged…………………… Ballots for Andres Garchitorena, not challenged…….. Ballots for Andres Garchitorena, challenged…………….
” ‘ “Two books used by the inspectors and containing the list of registered
voters were also found inside the ballot box. * * *”‘
“So that, as has been seen, the ballot boxes of Sangay were violated.
Forty-nine of the used ballots disappeared, and no account was rendered of 93
blank ballots. The fact of the violation was not discussed by the parties, only
they do not agree as to the place where the violation was committed, nor as to
what person or persons perpetrated it.
“On the other hand, the election returns of Sagnay are not only assailed as
false, but they are also by themselves proof of their falsity and to the extent
that the election inspectors of said municipality are at present under
prosecution for the falsification of these returns (Criminal Case No. 2721 of
this court). Said returns clearly show the alterations made in them by erasing
the sums of the votes originally written as the result of the canvass, and
recording in their place a lesser number, as regards one candidate, that is to
say, by reducing his votes, and a larger number, as regards the rival candidate,
thus making it appear that the latter received more votes.
“It is true that this manifest falsification now under consideration has
reference to another office different from that of governor, but at all event it
shows the unquestionable fact of the very falsification of the election returns,
which taint deprives them of their probatory value, renders them unworthy of
credence, and destroys all the confidence that should be inspired by the
official acts of the election inspectors of Sagnay.
“In connection with this matter, due account should be taken of the following
legal doctrines and authorities:
” ‘* * * Where it has been established that a fair and honest election was
held, none but the gravest irregularities will avoid the election: such as might
be said to raise a presumption of fraud. But where the election board has
committed irregularities fraudulently, they need not be serious or numerous. The
position and duties of an election board is one where much must be left to the
honesty and integrity of its members. Many of its acts must be accepted as true
even though false, for the reason that no adequate proof can be secured of their
falsity. The law has, however, outlined its duties with some care; and
fraudulent practices kept within bounds can not, as a rule, assume large
proportions. Nor can fraud be practiced in many directions without asserting
itself at some point or other. So that from the very difficulty of following all
the movements of the board, a grave suspicion immediately arises as to its
honesty of purpose when once a fraud chargeable to it has been discovered. The
thought immediately suggests itself, if fraud was committed here, it is probable
that it was also committed there, where it can not be proved except by the
confession of the inspectors themselves. The general rule is that a witness
found to be a willful perjurer on a material point is thereby thoroughly
discredited. The same rule should apply to the record made by an election board.
Said record is prima facie evidence of the results of the election, guaranteed
by the familiar presumption that public officials have done their duty. But once
fraud is proved upon an important point, the party claiming under it must
present his proofs. Such is the rule, more strongly stated, however, by McCrary
on Elections section 541 et seq.:
” ‘The safe rule, probably, is that where an election board is found to have
willfully and deliberately committed a fraud, even though it affect a number of
votes too small to change the result, it is sufficient to destroy all confidence
in its official acts, and to put the party claiming anything under the election
conducted by it to the proof of his votes by evidence other than the return.’
(See Londoner vs. People, 15 Colo., 557; and Gardiner ts. Romulo, 26 Phil.
Rep., 521.)
” ‘An election return is prima facie evidence of everything the law requires
it to contain, until it is shown to be fraudulent and false and then it falls to
the ground; for although there is great danger of disfranchising innocent legal
voters a return which is shown to be utterly untrustworthy must be rejected as
evidence of the result. Although there may have been some fraudulent voting at
an election, yet where the officers who conducted it did not participate in the
fraud, but endeavored to hold the election according to law, their returns are
prima facie evidence of all they contain, subject, however, to be corrected by
proof; but where their returns are successfully impeached for fraud in them they
are unworthy of credit and are evidence of nothing except that a poll was
opened. But while the exercise of the power to discard the entire return of an
election precinct is a public necessity and is sustained by abundant authority,
it should be exercised with great caution and only as the last resort.’ (15 Cyc,
418.)
” ‘Although the general rule is that the ballots themselves are the best
evidence of the number of votes cast, and for whom cast, yet this rule can have
no application to a case where the ballots have been tampered with after they
were deposited in the ballot box. In such a case the value of the ballots as
evidence is almost totally destroyed, * * *.’ (McCrary, par. 474; and Villamor,
par. 1054.)
” ‘It was proved that the ballot boxes of the municipality of Alava were
violated, and the effect of that violation is to annul all the ballots used and
cast in the municipal election of said town, for, by reason of the facts here
described these ballots have lost all their probatory value.’ (Generao vs.
Dispo, of the Court of First Instance of Pangasinan; and Villamor, par. 1062.)
“In this precinct of Sagnay the returns were falsified, the ballot boxes were
violated, the ballots were visibly altered and 49 used ballots which should have
been counted disappeared, and in place thereof appear 56 others which bear
evidence of having been maliciously written by partisans of the protestee for
the purpose of putting the protestant in a bad light, and, according to the
report made by the commission, no account was rendered of the large number of
missing ballots, amounting to ninety-three (93).
“If to all that we add some of the other irregularities alleged in the motion
have also been proven, such as the inadequate condition of the polling place,
the voting booths and the insufficient number of the latter, the electioneering
and threats made within these places, arid the unlawful taking away of some
votes cast for Andres Garchitorena—for several witnesses, whose number is
greater than that shown in the returns as that of those who voted for
Garchitorena testified that they did vote for this candidate—it will be seen
that the case of Sagnay is one of those which justify recourse to the last
resort mentioned in the doctrine above quoted.
“Therefore, the elections held in the single precinct of Sagnay, on the 6th
day of June, 1916, are declared null and void, and the returns thereof shall not
be taken into account for the purposes of the general canvass of all the votes
cast in the province.
“In recapitulation and as a result of the findings hereinabove: The returns
rendered by five of the eleven (11) municipalities affected by the protest are
rejected, that is, the elections had in these five municipalities are annulled.
These municipalities and their respective annulled or rejected votes are the
following:
(As per the provincial returns) —
|
Votes.
|
|
| Bato……………………………………………………………………… |
331
|
| Iriga, 3d precinct…………………………………………………….. |
962
|
| Lagonoy……………………………………………………………….. |
127
|
| Minalabac …………………………………………………………… |
81
|
| Sagnay…………………………………………………………………. |
_184_
|
|
Total……………………………………………..
|
1,685
|
“According to the provincial returns which accompany the motion, the total
number of votes cast in the whole province for the office of provincial governor
is 8,312, distributed among the following candidates voted for: Manuel Crescini
3,198; Andres Garchitorena 2,468; Engracio B. Imperial 1,954; and Francisco
Botor 692. According to this, the protestee Manuel Crescini has over the
protestant Andres Garchitorena a majority of 730 votes.
“Now, coming to the general canvass of the votes cast in the entire
province, or the recount of the votes in accordance with the pronouncements
made in this decision, the result attained is that given in the following table,
excluding the last candidate Francisco Botor:
1. Baao ………. 2. Basud …… 3. Bato………. 4. Buhi…….. 5. Bula………. 6. Cabusao ….. 7. Calabanga ….. 8. Camaligan ….. 9. Canaman …… 10. Capalonga …… 11. Caramoan …… 12. Daet………. 13. Gainza…… 14. Goa ………. 15. Indan…….. 16. Iriga ……. 17. Labo………. 18. Lagonoy …… 19. Libmanan ….. 20. Lupi………. 21. Magarao …… 22. Mambulao …… 23. Milaor …… 24. Minalabac …… 25. Nabua …… 26. Naga …….. 27. Pamplona …… 28. Paracale …… 29. Pasacao …… 30. Pili………… 31. Ragay…… 32. Sagnay ….. 33. San Fernando…….. 34. San Jose……………. 35. San Vicente………… 36. Sipocot ……………… 37. Siruma ……………… 38. Talisay ……………… 39. Tigaon ……………… 40. Tinambac…………..
“From the preceding canvass or recount of the votes, it appears that the
protestant Andres Garchitorena obtained a majority of the legal votes cast in
the forty municipalities of the province of Ambos Camarines for the office of
provincial governor, and a plurality over the protestee of nine hundred and
thirty-one votes.
“It also appears therefrom that the votes cast in the five municipalities
whose elections have been declared null and void or have been rejected are
equivalent to 20 per cent of the total number of those cast in the entire
province.
“In view of this fact, the question arises as to whether it would be proper
to order the provincial board to correct the canvass in such a way that it shall
declare the protestant elected by awarding him a plurality of 931 votes, or
whether on the contrary it should be certified that the election is voided as
regards the office of provincial governor of the province of Ambos
Camarines.
“In the case of Gardiner vs. Romulo, supra, the Supreme Court held:
” ‘The returns from a municipality which comprised twenty-five per cent of
the electors of the province were rejected in view of the serious irregularities
committed in the manner of holding the election, and because of frauds and
initimidation played upon the electors, which gave the protestant a small
majority. Seventy-five per cent of the electors and eleven out of the twelve
municipalities of the province participated in the obtainment of this majority.
Held: That it is not sufficient to justify the holding of a new election in the
whole province, in view of the fact that the winning candidate by the prima
facie returns and his partisans were largely responsible for the conditions that
prevailed in said municipality on the day of the election.’
“In the present case, although it is held that thirty-five of the forty
municipalities of the province participated in the obtainment of the majority,
that is, a proportion less than that resulting from the relation between eleven
and twelve, it also appears that not only seventy-five but eighty per cent of
the electors of the province contributed to the obtainment of said majority. In
this respect then it is held that the fact of the rejection of the returns from
five municipalities, which comprise 20 per cent of the electors of the province,
is not a sufficient reason to justify a new election.
“It is said however in the aforecited decision that in view of the fact that
the winning candidates by the prima facie returns and his partisans were largely
responsible for the conditions that prevailed in said municipality on the day of
the election,” (p. 85.) the intention being undoubtedly to give it to be
understood that, were it not for that circumstance, it would have been held that
a new election was justifiable.
“This brings us to a discussion as to whether or not the protestee or his
declared partisans were responsible for the fatal irregularities and
illegalities which served as a ground of reason for the court’s rejection of the
returns from entire precincts.
“Aside from the irregularities relative to the installation of the three
polling places of Iriga, and to the construction of the voting booths and ballot
boxes used therein, for which perhaps the protestee may be held responsible by
reason of his official character as municipal president of said municipality of
Iriga (although there is evidence that the vice-president acted at the time),
there is nothing in the record to show conclusively that Manuel Crescini
participated directly or indirectly in the illegalities and frauds committed by
the respective election inspectors, nor is it evidence that such inspectors
(excepting perhaps Jose Crescini, one of the inspectors of Buhi) were his, the
protestee’s declared partisans. This was alleged in the motion and some evidence
bearing on this master was produced but the court does not deem sufficient the
more or less reasonable conjectures or deductions of the witnesses.
“At all events, and although it be said besides, as it should be said, that,
afterall, legal votes were cast for Manuel Crescini in Iriga and in the other
municipalities, for undoubtedly there were many electors who honestly believed
that he was the best candidate for the office of provincial governor, yet it is
also unquestionable that in a certain way he is responsible for the conditions
which prevailed in his municipality on the day of the elections and so much the
more that the polling places were located near his residence and were
consequently within his close watch.
“This being the case, and it being a well settled general rule that an
election ought not to be annulled except as a last resort, and, further, it
being easily possible to separate, as was done in the recount, the vitiated from
the legal votes, among all the votes cast in the entire province, the court can
do nothing but put into effect the will of the majority, freely, honestly and
legally expressed.
“For all the foregoing reasons the court decides that he should order, as he
hereby does, the provincial board of canvassers, as soon as it shall receive a
certified copy of this decision, which immediately upon becoming final, should
be transmitted to it by the clerk of this court, to proceed to correct, in
conformity with the pronouncements made in this decision, the returns of the
elections held in the forty municipalities of this province, and to declare the
protestant Andres Garchitorena legally elected to the office of provincial
governor of Ambos Camarines for the rest of the present term of office which
began on October 16, 1916. The protestee is ordered to pay the costs of this
action, excepting those that pertain to the municipalities of Buhi and Lagonoy,
as they have already been adjusted in the respective municipal protests.
“The clerk of the court is ordered to send a certified copy of this decision
to the Executive Secretary, for such purposes as the law requires, and further
to refer said decision to the Attorney-General so that the latter may take such
measures against the election inspectors for their violation or violations of
law, as may be warranted by the pronouncements herein or by his
investigation.
“So ordered.
“Given at Naga, Ambos Camarines, on March 27, 1917.
Maximino Mina,
Auxiliary Judge, 4th Group.
“EXHIBIT B.
“[United States of America, Philippine Islands. In the Court of
First Instance of Ambos Camarines, fifteenth Judicial District. Election
Protest.]
‘Andres Garchitorena, petitioner, versus Manuel Crescini,
respondent.
“DECISION.
“On June 21, 1916, the provincial board of Ambos Camarines acting as a
provincial board of canvassers certified that the result of the elections held
in said province on the 6th day of June, 1916, to fill the office of provincial
governor, was the following: Manuel Crescini 3,198 votes: Andres Garchitorena
2,468; Engracio B. Imperial 1,954; and Francisco Botor 692. In consequence
thereof, it proclaimed as governor-elect of Ambos Camarines the triumphant
candidate Manuel Crescini. Against said result of the elections, one of the
defeated candidates, Andres Garchitorena, presented in due time before this
court a motion of protest which having passed through all the process required
by law, is now submitted to the consideration of this court in order that, by
virtue of the instructions of the Supreme Court, this lower court render
judgment after an examination of the evidence so far adduced and which is made a
part of the record in accordance with the law and the facts.
“Municipality of Capalonga.
“This is one of the municipalities affected by the protest in which it is
averred that in this precinct the protestant obtained 11 votes for provincial
governor and notwithstanding the provincial board of this province, in making
the general canvass, awarded him only one vote according to the tabulation made
by said board of the result of the election by precincts.
“There was no need of taking evidence in order to explain the facts alleged
in the protest. At the hearing of the case the protestee admitted that in fact
the provincial board of canvassers incurred an error in recording only one vote
instead of eleven for the protestant.
Therefore the court decides that, with reference to the elections held in the
municipality of Capalonga, he should award, as he hereby does, 11 votes to
Andres Garchitorena and 6 votes to Manuel Crescini.
“Municipality of Minalabac.
“This is another of the municipalities affected by the protest in which it is
set forth that ‘in this precint 34 electors duly inscribed in the election
register of the municipality failed to vote on the day of the election, not
through any fault of theirs, nor waiver of their rights, but because of the want
of official ballots, for, at about 2 o’clock in the afternoon of said day, when
said 34 electors were in front of the polling place ready to vote, the board of
inspectors of this precinct informed them that the supply of official ballots
transmitted to it was exhausted, wherefore it was obliged to suspend the voting
with a view to resuming the same upon the arrival of more official ballots which
had been requisitioned from the proper authorities. Said 34 electors awaited in
vain the arrival of those requisitioned ballots until the next day when, due to
their failure to arrive, the canvass was proceeded with. Thus were said electors
deprived of the exercise of the right of suffrage.’
“Neither was there need of taking any evidence with respect to these
allegations of the protest because at the hearing of the case the protestee
consented to an annulment of the elections held in this municipality of
Minalabac, on the ground that the facts alleged in the motion were true.
“The record does not disclose the number of electors registered in Minalabac;
but according to the canvass made by the provincial board, the votes obtained by
each candidate for the office of governor are as follows: Manuel Crescini none;
Andres Garchitorena 10; Engracio B. Imperial 8; and Francisco Botor 63. So that
the total number of votes deposited in the ballot boxes was 81. Comparing this
number of votes with the number of the electors, 34, who were unable to vote
through no fault of their own and in spite of their vehement desire to do so, I
find that more than 40% of the registered electors were unjustly deprived of
their right to vote, and this of course affects the result of the election.
“Therefore, the court declares and decides that the election held in the
municipality of Minalabac should be, as it is hereby, annulled.
“Municipality of Mambulao.
“This is another of the municipalities affected by the protest which, with
respect to Mambulao, just as in regard to Capalonga, is solely directed against
errors committed by the board of inspectors in the canvass of the votes. The
question here raised solely concerns the revision of the 19 ballots rejected by
the board of inspectors during the canvass and which are now claimed by the
protestant. The protestee in turn claims two ballots of those rejected by the
inspectors and challenges 6 ballots of those counted for the protestant.
“Upon an examination of said ballots, the court decides that he should admit,
and does admit, the following ballots: No. 2, ‘Andres Gachitorena;’ No. 3, same
as No. 2; No. 4, ‘Andres Gathetorina;’ No. 6, ‘Andes Garcitorina;’ No. 7,
‘Andres Garchotorrena;’ No. 12, ‘Andres Gatsiturina;’ No. 13, ‘Andres
Garchetorina;’ No. 14, ‘Andres Gatcitorina;’ No. 15, ‘Andres Garchtorena;’ No.
16, ‘Andres Garchitorina;’ and No. 17, ‘Andres Garchiturina.’ That makes 11
votes.
“The court also decides that he should reject, as he hereby does, the rest of
the ballots claimed whereon appear the names of ‘Aandreso’ or ‘Andreson’ or
‘Andrisson/ or even ‘Andres Garchtoreno,’ where the latter was written on the
line intended for the name of a candidate for the office of representative.
“Of the 6 ballots challenged by the protestee, 4 are admitted and counted for
Andres Garchitorena, and 2 are rejected.
“The 2 ballots rejected by the inspectors during the canvass and claimed by
the protestee as legal votes cast for him are admitted.
“So that the canvass of the votes cast in Mambulao instead of bearing record
of no votes for Manuel Crescini and 73 votes for Andres Garchitorena, should be
as follows: Manuel Crescini, 2 votes; and Andres Garchitorena, 82.
“Municipality of Nabua.
“The following allegations are made in the protest against the election held
in this municipality: ‘The liberality of the procedure had in the election
precincts of Bato and Iriga, whereby the votes of more than 300 electors were
admitted after the hour for the closing of the polls (6 p. m. on the day of the
elections), was not observed by the election board of the precinct of Nabua, for
two of the inspectors of the latter precinct, whose names are Juan Vega and Juan
Goleta, partisans of the protestee, decided, in face of the opposition and
dissidence of the other inspector Luis Ocampo, a partisan of the protestant, not
to have the polls remain open after 6 p. m., for which reason more than 80
electors registered in this precinct failed to vote therein, notwithstanding
that they were all present and in front of the polling place at that hour ready
to vote. These tactics on the part of the majority of the board of inspectors of
Nabua, very different from those followed by the board of inspectors of Bato and
Iriga, were adopted in view of the fact that not all the election inspectors of
Nabua were partisans of the protestant, and besides because the protestee knew
that a great majority of the electors of Nabua were partisans of the
protestant.’
“But it appears that this part of the protest was abandoned, as the parties
produced no evidence whatever in support of their respective allegations. On the
other hand, the court considers that if the facts alleged in the protest are
true there is nothing in them that can in any manner void the election held in
the single precinct of Nabua. The fact of some 80 registered electors having
been unable to vote cannot annul the result of the election in which Crescini
obtained 110 votes, and Garchitorena 164. The number of those who were unable to
vote does not even reach 30 per cent of the total number of electors. The
canvass made by the election board should be sustained.
“Municipality of Lagonoy.
“After a perusal of the pleadings of both parties and a careful examination
of the evidence adduced by them, as well in behalf of as against the protest, I
am of the opinion that the elections in this municipality for the office of
governor should be annulled for the following reasons derived from the following
facts, all proven at the trial, to wit:
“The municipal council of Lagonoy met several times in order to proceed to
the appointment of election inspectors and a poll clerk, and did appoint, prior
to May 31, 1916, Esteban Mendoza, Balbino Frondoso, and Doroteo Totafies, as
inspectors, and Quintin Bona, as poll clerk.
“On said date, this court, deciding upon a petition for a writ of mandamus in
which Eulogio Proa was petitioner and the municipal council of Lagonoy and
others were respondents (Civil case No. 2020), declared to be null and void and
of no value the appointment of the first election inspectors and poll clerk and
ordered the issuance of a peremptory mandamus addressed to the municipal council
of Lagonoy directing that, within 48 hours after it be notified of that
mandamus, it annul said appointment aiid proceed to appoint other election
inspectors, two of whom should be such persons as the petitioner Proa might
propose. In that civil action of mandamus, the respondents were jointly the
municipal council of Lagonoy, the said inspectors Mendoza, Frondoso, and
Totafies, and the poll clerk Bona.
“As the case was of an urgent nature and there was no time to be lost, the
dispositive part of the decision was telegraphed by the clerk of the court to
the municipal council of Lagonoy through the municipal president of San Jose.
The council was notified and after due summons met in special session on June 6,
1916, at which session it proceeded to comply with the order of the court, and
Gil Forteza, Gaudencio Presentacion, and Manuel Ledesma were appointed as
election inspectors, and Ananias Obias, as poll clerk, as substitutes for the
others whose appointment had been annulled by the court. What happened
afterwards, that is, on the day of the elections, is set out in the minutes made
by the election inspectors and poll clerk last appointed, petitioner’s Exhibit
J, the tenor of which is literally, as follows:
” In the single polling place of the municipality of Lagonoy, province of
Ambos Camarines, P. I., today, the sixth of June, 1916, at five o’clock in the
afternoon, we, the undersigned election inspectors, hereby solemnly set forth
that at 6.30 a. m. of this date we went to the polling place for the purpose of
fulfilling the duties and obligations imposed upon us by law, as election
inspectors legally appointed by the municipal council at its session held at 9
p. m. of the 5th instant, but that we were unable to enter the polling place for
the reason that we were stopped and expelled beyond a distance of thirty meters
therefrom by Constabulary guards and the whole municipal police corps, who would
not admit us to the polling place and alleged that in prohibiting our entrance
thereto they were obeying orders given them by the municipal president and
presiding officer of the so-styled election board which, according to said
guards, was lawfully assembled. Therefore, we, the undersigned inspectors, for
the purpose of avoiding our being held in any way liable under the law, had to
seek the protection of the municipal president, and, after he had conferred with
the constabulary lieutenant, the fictitious inspectors permitted us, the
undersigned, to enter said polling place, whereupon we took the required oath
and requested of said municipal president that said intrusive inspectors be
expelled and that he obliged them to deliver to us all the documents, minutes,
ballots, and other official papers concerning the election, but said intrusive
inspectors refused to deliver the same and likewise their possession of the
polling place, and notwithstanding that the municipal president ordered the
policemen to eject them from the polling place, these officers refused to comply
with the municipal president’s orders, which refusal was countenanced and
approved by the chief of police who also refused to obey these orders.
” ‘In view of these facts, we, the undersigned legally appointed inspectors,
had to remain in the polling place and officially confer with the municipal
president to the end that the intrusive inspectors Esteban Mendoza, Doroteo
Totanes, Balbino Frondoso, and the poll clerk Quintin Bona, might permit
compliance and themselves comply with the orders given by said municipal
president, so as not to waste time in detriment to the holding of the election.
But said intruders were obstinate and refused to permit the election to be held
and by such obstructive acts prevented the fulfillment of the provisions of the
Election Law until the hour of 5 p. m. arrived, at which hour the^ law directs
that the polls shall be closed, and as a result of said obstruction the electors
who had been waiting since morning were unable to vote until 5 p. m.
” ‘Wherefore, we hereby make record of the foregoing facts in order to avoid
the very serious liability which the law might exact of us.
” ‘In witness whereof we, all the members of the election board, sign these
presents which I, the poll clerk, certify.
” ‘Signed: Gaudencio Presentacion.—Gil Forteza.—Manuel Ledesma.—Ananias
Obias.—Election inspectors and poll clerk.—Ibo Alvarez.—Elector.—Pedro
Demesa.—Elector.—Sofronio Bautista.—Elector.—Macario Ledesma. Elector.’
“The previous election board composed of the persons whose appointment was
annulled by the court in disobedience to the decision rendered by the latter and
to which no timely and proper exception was taken, and being in possession of
the ballots, documents and other things necessary for the election, proceeded to
hold the same, opening the polls between 9 and 10 o’clock on the night of June
6th and closing them at about 5 o’clock on the 7th, with a short recess for rest
during the early morning of the latter date.
“The elections were held in the upper floor of the municipal building. The
voting booths were open and the public was excluded from the 30 meter limit
around the polling place. The inspectors did not keep a list of the illiterate
electors nor take their oaths before they voted, and they did not permit the
electors to deposit their ballots in the ballot boxes, but the chairman kept
them in his pocket or held them in his hands until the electors went out by his
order. After the election the ballot boxes were not delivered to the municipal
secretary, but instead to the chief of police, the latter being a son of the
chairman of the election board. Several days afterwards, for more or less
justifiable reasons, the municipal secretary was dismissed from office, the
person who was poll clerk was appointed in his stead, and the latter took
possession of the ballot boxes.
“At these elections more than 80 duly qualified and registered electors were
unable to vote or failed to do so either on account of the considerable delay,
or more properly said, of the change in the time for the opening of the polls,
or because they knew that the persons who were acting as election officers had
been shorn of their office by an order of the court, or perhaps it was because
of both of these reasons. At all events, the courts is of the opinion that if
those eighty electors had voted the result of the elections would necessarily
have been changed in favor of the petitioner and against the respondent.
“The respondent tried to prove as an explanation of the delay or change in
the hour of opening the polls that the herein petitioner Andres Garchitorena,
accompanied by the justice of the peace Ibo Alvarez and fifty other men,
assaulted the polling place, interferred with the election inspectors, and
endeavored to snatch away from them the ballot boxes, ballots, and other papers
pertaining to the board of inspectors, and were inside the polling place from
the time the polls were opened until 7 o’clock in the evening, the hour when the
inspectors above mentioned were free to hold the election. But the court holds
this allegation to be totally false and wholly disproved by the testimony of
lieutenant Sablan, a witness in this case who is exceptionally impartial and
truthful.
“The court holds that all the facts above stated were proven and that they
jointly or separately constitute not only a grave illegality but also a manifest
disdain of all the provisions of the Election Law and at the same time a
flagrant contempt against the authority of the court. These reasons necessarily
impose the annulment of the elections held in this precinct and the court
decides that the elections are null and void.
“Municipality of Sagnay.
“As certified by the provincial board of canvassers, the result of the
provincial election in this municipality is that Manuel Crescini received 173
votes and Andres Garchitorena 11 only. But as this was one of the municipalities
affected by the protest, the court ordered the ballot boxes to be brought to it
for a revision of the ballots and the latter were turned over to the
commissioners. Besides, oral evidence was produced in support of the other
allegations contained in the petitioner’s protest.
“After closely examining the pleading and evidence of both parties, the court
finds that there are no means available whereby to determine the number of votes
received by each candidate. Therefore the elections should be annulled on the
ground that neither the ballots found in the ballot boxes nor the election
returns prepared by the board of inspectors can serve as proof.
“The ballots cannot serve as proof because the ballot boxes were tampered
with after the election. This fact was expressly admitted by both parties and if
they had not admitted it, it would have been evidenced by the following proofs
afforded by the report and the proceedings of the commissioners. The latter in
their report stated as follows:
“PRECINCT OF SAGNAY.
” ‘It is hereby certified that the ballot boxes of said precinct were
completely covered with thick paper on all their sides except one, which paper
apparently was so placed for the purpose of transmitting the boxes to the court,
for no seal or signature of any inspector appears thereon. When the inspectors
were called before the commission to identify the ballot boxes, they stated that
they could not do so until said paper covering was removed, and that they did
not put on this covering.
” ‘The paper covering the sides of the ballot boxes was removed.
” ‘When the inspectors were again called, they said that the blank paper that
closed the ballot boxes was not in the same condition as that in which same had
been left by them, it appearing that the boxes were opened and that afterwards a
strip of white paper was put on over the union of the cover and the box
proper.
” ‘The commissioners decided to exhibit the ballot boxes to the court, and
this was immediately done * * *.
” ‘* * * It was discovered that one of these ballot boxes was entirely empty.
In the other ballot box the following documents were found: Two packages of
ballots tied together with dry grass and several loose ballots. An examination
of the latter in the presence of the parties showed this result:
Loose ballots containing two nam.es only, for the offices of
municipal president and governor…………….Loose ballots marked on their reverse side as
extraballots………………………………………………………………….Loose ballots marked on their reverse side as ballotsspoiled by the
inspectors……………………………………..
” ‘Then the package tied with dry grass, the covering of which is marked with
the letter A, was opened and was found to contain 51 ballots.
” ‘Afterwards the other package, also tied with dry grass and the covering of
which is marked with the letter B, was opened and was found to contain 87
ballots.
” ‘In recapitulation: In this precinct there were found:
Loose
ballots………………………………………………………Ballots in the package A…………………………………….. Ballots in the package B……………………………………..
” ‘According to the information given by the provincial treasurer, 290
official blank ballots were transmitted to the municipal treasurer of Sagnay.
There is, therefore, a shortage of 93 ballots.
” ‘The commission then proceeded to inspect the election returns furnished by
the provincial fiscal. Said returns show that 188 electors voted; that the
number of ballots found in the ballot box was 190; that there were two ballots
marked “Extra Ballots;” that one ballot was rejected as having been marked; and
that there were 42 ballots listed as marked but not as rejected.
” ‘According to said returns, the result of the voting for the office of
governor is as follows :
Manuel Crescini
………………………………………………Andres Garchitorena………………………………………… Severo
Cea……………………………………………………..Sulpicio
Cea……………………………………………………..Honesto Obias………………………………………………….
” ‘The parties then proceeded to separate their respective ballots, with the
following result:
Ballots for Manuel Crescini, not challenged……………. Ballots for Manuel Crescini, challenged…………………… Ballots for Andres Garchitorena, not challenged…….. Ballots for Andres Garchitorena, challenged…………….
“Hence it is apparent that the ballot boxes of Sagnay were tampered with.
Forty nine (49) of the used ballots disappeared and no account was rendered of
93 blank ballots.
“Neither can the election returns serve as proof as they were falsified, and
this falsification was disclosed by the following proven facts, to wit:
“1. Said returns, which were requested by the office of the provincial fiscal
in order that they might serve as ground for a criminal action for
falsification, bear erasures and alterations in the spaces after the names of
each one of the candidates for the office of representative, Honesto Obias and
Sulpicio Cea, the falsification consisting in that one of the figures of those
that denote the number of votes obtained by Obias was erased and added to the
number of votes received by the candidate Cea for the purpose of increasing the
latter’s votes.
“2. According to these election returns, Andres Garchitorena received 11
votes. However, 19 witnesses positively testified before this court that they
voted for Garchitorena; and it is not amiss to say in this connection that the
petitioner requested the summoning of 48 witnesses, although but very few of
these were able to come to testify. So that two kinds of evidence prove the
falsity of the returns: physical evidence, that is, the material and visible
alteration of the returns and legal evidence, or that derived from the
consideration that there should be 19 votes for Garchitorena, and not 11 as
stated in the returns, because at least 19 electors swore and testified that
they cast their votes for this candidate. With respect to the first kind of
evidence it does not matter that the material alteration or falsification has
reference, not to the office of governor here under discussion but to that of
representative. According to legal authorities, the general rule that where it
is proven that a witness has voluntarily perjured himself in an important matter
his whole testimony is discredited, is also applicable to the records made by
the inspectors of an election board. Once such a record is shown to be false in
one respect, it should be considered as false in all its other respects. If we
look for a falsity in direct reference to the office of governor herein under
dispute, we shall find one in the fact that according to the second kind of
evidence above mentioned the number of votes for the candidate Garchitorena was
falsified inasmuch as the returns award him only 11 votes, while it was proven
that at least 19 electors voted for him.
“Therefore, the court holds that as regards the office of governor the
elections held in the municipality of Sagnay are null and void.
“Municipality of Baao.
“At the elections held in this municipality that of the 419 registered
electors, 254 failed to vote and only 165 voted, with the result that Manuel
Crescini obtained 133 votes and Andres Garchitorena 6 votes.
“Against this result of the elections the petitioner protests and alleges
substantially: 1. Defects of construction and form in the voting booths of the
polling place; 2. That during the voting and the canvass of the ballots, the
election inspectors partisans of the respondent, adopted procedure violative of
law and vexatious to the voters; 3. That the respondent, in connivance with the
provincial governor Fuentebella and the municipal president Julian Barrameda,
conceived and executed the plan to remove, on the very day of the election, the
inspector Paulino Bernas of the opposite party, in order that all the inspectors
might be of the same party to which the respondent belonged so that by force of
fraud the minority might triumph over the majority; and 4. That in consequence
of the sudden removal and expulsion of the inspector Paulino Bernas, some 254
electors, a majority of whom were partisan of the petitioner, saw fit not to
vote, and had they voted the result of the election might have been
different.
‘The respondent in his answer alleged the following :
” ‘1. That it is not true that the respondent has. taken part in any manner,
direct or indirect, in the suspensions of the election inspector Paulino Bernas
who is precisely both a personal friend and a political adherent of the
respondent.
” ‘2. That the differences and questions had in the municipality of Baao were
due to the excitement caused in the designation of theincumbent for the office
of municipal president, that is, they were merely a matter of local politics,
and that the matter of the election of a provincial governor in no wise
concerned those differences and questions, for in said municipality of Baao
nearly all the voters are partisans of the respondent, and the small remaining
minority, partisans of the candidate Engracio. B. Imperial, while the petitioner
has no political influence whatever in this town.
” ‘3. That although it is true that in this municipality some electors failed
to vote, it was due to their own voluntary desistance or waiver of their right
in consequence of the differences of questions of local politics that arose in
connection with the election for the office of municipal president; that the
inspectors called those electors and invited them to vote, affording them all
necessary opportunities so to do; and that the respondent himself went to the
town of Baao on the day of the election and begged said electors to vote as they
were nearly all of them his partisans, but tlhey refused to do so, owing to the
aforementioned political questions of a local character.
” ‘4. That by the failure of said electors to vote no detriment was caused
the petitioner, while the respondent did suffer greatly thereby, because as
aforestated nearly all of said electors were partisans of the respondent.’
“Upon an examniation of the evidence adduced by both parties, in the order of
their respective allegations in rebuttal, the court finds that the preponderance
of said evidence establishes the following facts:
“In the municipality of Baao there were, and are, two opposite political
parties, the respective leaders of which are Julian Barrameda and Tomas Guevara.
About the 7th of March, 1916, that is, at the time when the municipal council
had to proceed to appoint the persons who were to be election inspectors,
Eleuterio Arroyo and Felix Imperial were known to be candidates for the office
of municipal president. The first of them belonged to the party of the majority
and the second to that of the minority. On said date of March 7th, the municipal
council of Baao appointed as election inspectors Andres Baesa, Ignacio
Britanico, and Paulino Bernas, the two first named belonging to Barrameda’s
party and the last named to Guevara’s. The council made these appointments on
its own initiative and without any interference whatever by the local political
parties. However, the appointment of Paulino Bernas as inspector was not due
precisely to the council’s respect for or protection to the party of the
minority, but principally to the fact that Paulino Bernas although a partisan of
Felix Imperial, a candidate of the minority, was also a personal enemy of his,
there being reason to believe that on that account Bernas would work against the
candidacy of Felix Imperial, or that at least he would not accord it very
decided support. As Felix Imperial learned of his true situation in respect to
his candidacy, he withdrew the latter, another reason for his so doing being as
the day for the election approached there came forward out of his political
party another candidate named Domingo Fajardo with greater probabilities of
success, because he was not a personal enemy of the inspector Bernas, addicted
to his, Fajardo’s party. But these tactics having come to the observation of
Barrameda’s party, its leader conceived the plan not only to remove Bernas from
the board of inspectors, but also to do so on the very day of the elections, in
order thus to control the situation and render absolutely futile all attempts of
the opposite party opportunely to obtain any legal redress. Accordingly, on the
morning of June 6th, 1916, Paulino Bernas was dismissed from office and forcibly
expelled from the polling place; and Facundo Badong, a municipal policeman whose
resignation as such was still pending action by the municipal council, was
appointed in his stead. If Facundo Badong was not a partisan of Barrameda’s,
neither was he a member of the party to which the expelled inspector belonged.
After this incident of the expulsion which took place in the presence of all the
electors belonging to the same party as did inspector Bernas, and perhaps also
in the view of others who were not of that party, it occurred that 254 electors
abstained from voting and taking part in the elections.
“The evidence does not warrant the conclusion that said 254 electors were
prevented from voting by force and intimidation. They waived their right out of
their own free will. Neither does the evidence support the allegation that the
removal of the inspector Bernas was the result of connivance between Governor
Fuentebella, the petitoner (respondent?), and the municipal president Julian
Barrameda. The political collusions resorted to in the municipality of Baao were
of a purely local nature and in no wise influenced the contest over the office
of provincial governor, and this contest had absolutely nothing whatever to do
with that other one waged over the office of municipal president of Baao.
Fuentebella, Crescini, and Engracio B. Imperial (another of the candidates for
governor) belong to the same political party. Crescini was a member of the
provincial board and so was also Engracio B. Imperial. According to the
evidence, Guevara’s party in the municipality of Baao had no candidate for the
office of provincial governor; some of the members of this party were addicted
to Crescini, others showed greater devotion to Engracio Imperial, while still
others favored the candidacy of the petitioner Andres Garchitorena. So that it
would be a bold and unwarranted assertion to say that Governor Fuentebella
displayed greater active interest for Crescini than for Engracio Imperial, and
no less so to declare that the local party led by Barrameda gave greater support
to the candidacy of Crescini than to that of Engracio Imperial. And as to the
Fajardo’s party in the same locality, it has already been said that it did not
have a candidate for the office of governor. Neither does the evidence support
the petitioner’s allegations relative to proceedings violatory of law and
vexatious to the electors.
“With respect to certain irregularities in the mode of conducting the
elections and in the construction or form of the polling place, and its voting
booths, I believe that, even taking them to be true and to have been proven they
cannot vitiate or void the elections held in the single precinct of Baao in
default of proof of fraud. Said elections were held and conducted by the only
electors who wished to exercise their rights in a regular and orderly manner
within the period marked by law. Despite the incident above mentioned, that of
the removal and expulsion of the inspector Bernas, I am of the opinion that the
elections at Baao should be sustained in order to uphold the will of the 165
electors who went to deposit honorably their votes in the ballot box.
“We now come to the matter of the recount of the votes cast for the office of
provincial governor. It appears that upon the opening of the ballot boxes, the
commissioners found three groups of ballots: the first was composed of 63
ballots; the second of 15; and the third of 8. All the ballots in each group
were written by the same hand. As several illiterate electors took part in the
election, and as the inspectors were not called for the purpose of picking out
the ballots prepared by them while assisting said illiterates, the court holds
that the ballots of the group mentioned, i. e., of 63, 15 and 8 ballots found to
have been written by one and the same hand are those which were filled out by
the election inspectors for the incapacitated or disabled voters who asked their
assistance in accordance with the law.
“In fact, from the document Exhibit X of Baao which is the record of the
proceedings had by the board in connection with the assistance given to
illiterates, it appears that 83 electors were assisted by the inspectors Andres
Baesa, Ignacio Britanico, and Facundo Badong in the proportion of 61, 16, and 6
respectively, which numbers differ very little from those of the 63, 15 and 8
above referred to.
“The list of illiterate voters attests that 61 ballots were filled in by
Andres Baesa, and the handwriting expert identified sixty seven (four ballots
more) as having been written by the same hand. But after a careful examination
of these four ballots, Nos. 36, 45, 46, and 47, the court is of the opinion that
they are neither identical nor similar to the rest of the group.
“The petitioner challenged a group of 16 ballots, on the ground that they
were written by the same hand. But it precisely appears in the list that Ignacio
Britanico assisted 16 illiterate electors.
“Facundo Badong prepared 6 ballots for incapacitated voters, and 8 ballots
were found written in the same handwriting. The handwriting expert added one
more to the latter number, making this group consist of 9 such ballots. But it
is seen that this additional ballot, bearing No. 33, was erroneously
included.
“According to the statements just made, the list should show 63 (64 less 1)
electors as assisted by Baesa, 14 (15 less 1), by Britanico, and 7 (8 less 1) by
Badong, that is to say, deducting one ballot from each group, which is the
inspector’s own ballot and would not therefore appear in the list. Now then,
adding the said numbers 63, 14, and 7, we have a total of 84, and comparing this
sum with the number .83 in the list it may be seen that there is only one unit
difference, a mistake that can be easily explained, taking into account this
kind of work and all the circumstances of the case.
“It is easy to understand that the discrepancy between the proportions
accredited to each inspector (63, 14, and 7, and in the list, 61, 16, and 6) is
due to involuntary mistakes caused by recording that Britanico assisted two
electors more, while these two were in fact assisted by Baesa and the other by
Badong. In recapitulation, the court is of the opinion that the list of the
illiterate electors, notwithstanding the slight errors mentioned, is correct
within the purview of the law; that it was gotten up honestly by the inspectors
and the poll clerk; and that it is a faithful reflection of the proceedings of
the board had in connection with the matter of assistance given to incapacitated
electors.
“The other ballots challenged are: Nos. 2, 3, 48, 115, and 119, all for
Manuel Crescini and alleged to have been written by the same hand. They are
admitted because in the opinion of the court they were not all written by the
same hand.
“Nos. 121 and 138, the first for Manuel Crescini and the second for Engracio
Imperial. Challenged on the same ground. Admitted. They are not identical nor
alike.
“Nos. 11 and 20, both for Crescini. The same challenge; the same finding,
“No. 118, for Crescini, and No. 148, for Francisco Botor. It is alleged that
they were written in the same hand. I think not. Admitted.
“Nos. 9 and 10, both for Manuel Crescini. Rejected, because written in the
same handwriting and not by any of the election inspectors.
“No. 1, for Manuel Crescini, challenged as having been written with a drawing
pencil. It is admitted, there being no evidence of fraud.
“According to the election returns, Manuel Crescini received 133 votes and
Andres Garchitorena 6. But the commissioners awarded no more than 128 to the
first and 5 to the second, and awarded to nobody the ballots, where the space
allotted for the name of the candidate for the office of governor was left in
blank, which ballots were not at all claimed. The ballots rejected by the
inspectors during the canvass and claimed before the commission by the parties
in interest are again rejected.
“Consequently, the following final award is made of the votes cast in the
election precinct of Baao, to wit, to Manuel Crescini 128 votes, less two that
have been rejected (ballots Nos. 9 and 10), a total of 126 votes; and to Andres
Garchitorena five (5) votes.
“Municipality of Bato.
“Quite extensive are the allegations of the protest against the returns of
the provincial election held in this municipality. They are recorded in the
paragraphs from (a) to (h) of the amended petition of protest found on pages 82,
83, and 84 of the record, and consist of violations of law, irregularities of
procedure and frauds of so serious a nature that if true would necessarily
invalidate said election.
“The court will not state one by one which allegations are sustained by the
evidence and which are not. For the purposes of this decision it is sufficient
to hold that the following facts were proven:
“1. Three hundred and fifty voters were entered on the election register and
they all voted on the day of the election. The voting lasted from 7 o’clock in
the morning until 10 o’clock at night. When the ballot boxes were opened, 180
ballots were found to have been prepared and written by the inspectors while
according to the list of illiterates the number of the latter was only 141.
Hence it is concluded that the inspectors were seriously remiss in the
fulfillment of their duty by not having entered in the list or record of
illiterates a considerable number of electors assisted by them. These inspectors
have lost the confidence reposed in them and cannot excuse themselves by
alleging error or involuntary neglect, because there is too great a difference
between 141 and 180; nor can they plead ignorance because if they were ignorant
of the law they would not have prepared the list of illiterates as the law
directs. Therefore, the court holds that the 39 ballots which make the
difference between the 141 electors said to have been assisted by the inspectors
and the 180 electors to be illiterate should be annulled.
“2. The voting was held not only during the time specified by law, from 7
o’clock in the morning until sunset, but was also unnecessarily prolonged four
hours more, that is, until 10 o’clock at night. The number of votes cast during
the four hours of unnecessary prolongation is estimated, according to the
evidence, at not less than 92, which is 26 per cent of the total number of
electors (350). Fifteen hours of voting instead of eleven or twelve as provided
by law represents a very considerable prolongation; and 92, that is 26 per cent
of the electors also represents a no less considerable number. In other words,
the result of the election was in the opinion of the court affected by the
unnecessary prolongation of the voting.
“The authorities on the matter say that when the nonfulfilment or
nonobservance of the provisions of the law with respect to the time for the
opening and closing of the polls is very evident, it should be considered to
have affected the result of the elections which consequently must be declared
null and void.
“Notwithstanding the rule above enunciated, the court would not annul the
entire election, but would accord value to the 92 ballots cast during the four
hours of unnecessary prolongation of the voting, provided these ballots could be
identified either by numbers or by their contents. But the case is that such
identification is impossible, because the election inspectors, committing with
fraudulent intention a new violation of the law, willfully failed to enumerate
successively on the list each elector who voted. So then, we have the fraud
about the unnecessary prolongation of the voting increased by a new fraud, which
is that of the failure to enumerate, and on the other hand, we have the effect
of both frauds, which had been to cause so much confusion and obscurity that no
means are now available for the separation of the good votes from the bad ones.
The court says that the intention of the inspectors in committing these frauds
was fraudulent, because the facts show that such frauds always tend to increase
the votes of one candidate and to reduce those of his opponent. The 92 votes
cast outside of the legal hours should therefore be annulled, as the 39 votes
above referred to were annulled. Thirty-nine and ninety-two makes 131; and
deducting 131 from the 180 votes found for Manuel Crescini, he has left only 49.
But, as it cannot be determined which are these 49 good votes, for, as before
explained, they cannot be separated from the illegal ones, the result is that
all those 180 votes for the candidate just mentioned should be annulled.
“3. After the ballot boxes had been opened, the commissioners found 30
ballots prepared and written by the inspectors, and all rejected as having been
marked. It is noteworthy that all these ballots were for the candidate Crescini.
No explanation has been made of this fact, that is, of the existence of these
ballots, either in the record of the proceedings of the election board or in the
evidence presented by the protestee. The court finds no fact, detail, or
circumstance whatsoever that might prove the existence of such ballots so filled
in, marked, and rejected.
“This mystery is explained only by the fact alleged, and which the court
holds to have been proven, that the election inspectors, very zealous partisans
of the respondent, did, during the voting, electioneer the electors who went to
the polls to vote, in order to induce them to cast their votes for the
respondent. These inspectors had in their possession ballots with the name of
Crescini already written on them in the space allotted for the name of the
candidate for theoffice of governor; and in the booths they electioneered the
voters. If the latter allowed themselves to be influenced, these prepared
ballots were delivered to them and they filled in the spaces in blank for the
names of the candidates for the other officers; but if they did not allow
themselves to be influenced, then the electors filled in the blank spaces that
were left and afterwards marked the ballots so as to spoil them. Thus it is
understood why all the ballots in question except one are in the name of
Crescini.
“4. The election inspectors falsified the election returns; io be convinced
of this, one has but to note the following details: According to the returns,
the result of the election is that Manuel Crescini received 292 votes, Andres
Garchitorena 32, Engracio Imperial 17, and Severo Cea 1, and there were 10
scattering votes; while, according to the same returns and the ballots
themselves, Manuel Crescini obtained only 289 votes and Andres Garchitorena 33,
not a single vote was found for either Engracio Imperial or Severo Cea, but
there were 20 ballots for various other candidates.
“The evidence brings several other facts to light, but the court deems it
unnecessary to mention them, in view of the conclusions he has drawn, as seen
above. Absolute disdain of the law on the part of the inspectors with respect to
compliance with their duties, as shown by their failure to record in the returns
the true number of electors assisted by them; unnecessary prolongation of the
voting for the sole purpose of favoring the interests of the respondent; frauds
upon frauds each committed for the purpose of concealing the next preceding one;
appearance of 30 ballots, prepared, challenged, and marked by the inspectors
themselves evidently with the intention to supersede votes for the petitioner;
and falsification of the election returns in the most inconsiderate and
unwarranted manner—each one of these reasons, and all of them jointly,
necessarily determine the annulment of the election.
“Therefore the court annuls the elections held in the municipality of Bato
for the selection of an incumbent for the office of governor.
“Municipality of Buhi.
“Of the irregularities, illegalities, and frauds alleged in the motion of
protest against the returns of the election held in the municipality, the court
finds the following ones to have been proven:
” (a) The election inspectors Gregorio Ricafranca, Jose Crescini, and
Dalmacio Amador are all zealous partisans of the protestee, and the second
named, Jose Crescini, is his uncle.
” (b) According to the provincial board of canvassers, Manuel Crescini
received 280 votes, and Andres Ga’rchitorena 39.
” (c) All the inspectors above mentioned did electioneering and propaganda
work, on a greater or less scale and with greater or lesser activity, in behalf
of the protestee, not only inside but also outside of the polling place, and
both before and during the election.
” (d) The inspector Jose Crescini, availing himself of his office, made use
of censurable means in order that illiterate electors, while filling out their
ballots, might vote for the herein respondent who is a nephew of said inspector.
Exhibit A is a ballot that was crumpled by the elector Lorenzo Penacerrada,
because, while he was filling it in inside the booth, the inspector Jose
Crescini entered there and, seeing that this elector was voting for another
candidate, made the threat to him that he, Crescini, would spoil the ballot
unless the elector voted for the herein respondent, and then Peñacerrada, in
despair, crumpled his ballot, thus spoiling it. Exhibits B and C are both
ballots by Santiago Fabrioante, for the first one was spoiled by Jose Crescini
by erasing or trying to erase the name of Engracio Imperial, a candidate for the
office of governor, whereupon Crescini handed Fabricante a second ballot which
was filled out by Crescini as regards the office of governor, and was then
handed over to the elector Fabricante so that he might complete it by writing in
the names of the candidates he chose for the other offices. Exhibit E is a
ballot by Balbino San Luis. It is torn on its upper margin because Jose Crescini
tried to take the ballot away from the elector in order to see its contents
which act was resisted by the latter. Exhibits F and G are the two ballots which
the elector Felix Estanislao had, for, after duly filling in the first one and
while he was putting it into the ballot box, the inspector Crescini obliged him
to show it to him, and, seeing that Estanislao had not voted for Manuel Crescini
for governor, had the ballot changed for another one, and spoiled the first
ballot by the superposition of other letters or names in connection with all the
offices from that of municipal president to that of the last councilor.
” (e) While Jose Crescini was performing the acts related in the preceding
paragraph, the other inspectors did nothing to curb him or prevent him from so
doing but, on the contrary, each of them did all he could to cooperate with
Crescini. Nazario Saballa, an elector 54 years of age, testified that Gregorio
Ricafranca assisted him in the preparation of his ballots, and that he was not
asked as to whom he intended to vote for, though his candidate for governor was
Andres Garchitorena. Notwithstanding, Ricafranca filled out and prepared
Saballa’s ballot. The evidence shows moreover that of the 34 or more ballots
written by this inspector Ricafranca none are for the petitioner Andres
Garchitorena; all of them are for the ¦respondent Manuel Crescini. As regards
the other inspector Dalmacio Amador, we have the testimony of five witnesses who
positively stated that they were assisted by him in the preparation of their
ballots, and that they told him that they desired to vote for Andres
Garchitorena for governor. However, of the ballots written by Amador only three
were found to be for the petitioner.
” (f) Said inspectors, with the deliberate intention of increasing the number
of votes for Crescini and decreasing those for Andres Garchitorena, falsified
the returns by recording therein the following result: That Manuel Crescini
received 280 votes, Andres Garchitorena 39, Engracio Imperial 17, and the other
candidates 6, when in fact and in truth, as they themselves very well knew,
Manuel Crescini obtained only 270 votes, Andres Garchitorena 51, and the other
candidates 25.
” (g) Of the 350 electors who voted, about 97 were illiterates and therefore
were assisted in the preparation of their ballots by the inspectors. However,
the commissioners found in the ballot box 106 ballots written by the
inspectors.
” (h) Said 97 illiterate electors did not take oath of their incapacity
before voting, and the Exhibit 1 or list of illiterates is false. Twenty two of
these illiterates electors testified before this court that they did not take
oath before they voted. On the other hand, see in the stenographic notes the
testimony given by the handwriting expert with respect to the list Exhibit
1.
“The foregoing acts which, as it is seen, constitute enormous frauds and
irregularities of a most impudent nature, more than sufficiently warrant the
annulment of the elections held in this municipality; but, mindful that the
influence of such frauds has not been far reaching and that means are still
available to distinguish the good votes from the corrupted ones, the court now
proceeds to make the following canvass of the votes.
“Of the 280 votes for the respondent Manuel Crescini, there should be
annulled and deducted 32 ballots prepared for illiterate voters by the Inspector
Dalmacio Amador, 28 ballots prepared for illiterates by the inspector
Ricafranca, and 44 ballots prepared for illiterates by the other inspector Jose
Crescini, aggregating a total of 104 ballots or votes by illiterates; this
annulment and rejection is made because these electors did not take the oath of
incapacity before voting. Besides, the following ballets should be annulled and
deducted; 6 ballots, Nos. 185, 195, 198, 199, and 249, and the Exhibit C, for
the reason that the space intended for the name of the candidate for the office
of governor was filled in by Jose Crescini, and the rest of the space for the
names of the candidate for the other offices by the respective electors; one
ballot, No. 117, because it bears Crescini’s name in two spaces; one ballot, No.
241, because by it Manuel Crescini is not voted for for governor; one ballot,
No. 246, because the space for the name of the candidate for governor is blank;
one ballot, No. 247, because it bears only the letters M. C, the initials of
Manuel Crescini’s name; 2 ballots, Nos. 255 and 322, because by them Manuel
Crescini is not voted for for governor; one ballot, No. 251, because it is
illegible and contains no mention of any candidate for the office of governor;
and one ballot, No. 266, because it is marked. All the other challenged ballots
are admitted. Consequently, Manuel Crescini is finally awarded 149 of the votes
cast in this precinct.
“To the 51 votes received by Andres Garchitorena one other, ballot No. 321,
is to be added as this ballot contains no defect whatever; but there are to be
deducted and annulled two votes by illiterates assisted by the inspector Amador,
because these electors did not take oath of their incapacity.
The petitioner, Andres Garchitorena, is finally awarded 50 of the votes cast
in this municipality.
“Municipality of Calabanga.
“The following facts at least are disclosed by the abundant evidence produced
by the petitioner in support of the averments of his protest against the returns
of the provincial election held in this municipality:
“(a) The election inspectors Toribio Felipe, Roman Malanyaon, and Manuel
Sabido were all faithful partisans of the respondent Crescini and worked
actively in behalf of his candidacy and against Garchitorena’s, not only prior
to the election but also during the same and during the voting inside the
polling place itself.
“(b) From the election register it appears that 368 voters were registered,
of which 348 voted and 20 did not, according to the enumeration of the ballots
cast. However. in the returns by the inspectors above mentioned, the latter
attest that 340 electors voted, and that the number of ballots found by them in
the ballot box was also 340. The committee of revision found that there were 349
spoiled ballots, 15 of which had been rejected by the inspectors during the
canvass, and that there were 19 ballots spoiled during the voting, and 80 blank
official ballots left over, making a total, altogether, of 448 ballots. On the
other hand, said inspectors stated in their respective testimony that 350
electors voted.
“(c) Said inspectors identified 107 ballots as written by them in their
assistance to illiterate electors, 80 of these ballots being for the candidate
Crescini, and 20 for the candidate Garchitorena; but they made no list of the
illiterates, do not know the names of these, nor even their numbers, and did not
have these supposed illiterates take the oath of incapacity before voting.
“It is alleged that the failure to make the list of illiterates was due to
neglect committed in good faith. But the court is compelled to disattend such a
plea. Public officials like these inspectors who, as we have just seen,
performed the acts mentioned in the last two preceding paragraphs merit no
credence and lose all of the confidence the law reposed in them by reason of
their office. They also aver that although they did not make any list of
illiterates containing an attestation that the latter took the oath, the truth
is that such illiterates did take the oath of incapacity before voting. The
court however considers this plea to be invalid like the preceding one, not only
for the reasons already stated but also because 20 illiterate witnesses
testified that they did not take the oath of incapacity before they voted, and
chiefly because the poll clerk of the election board testified under oath, at
the hearing on the municipal protest on the elections of Capalonga, that the
board of inspectors did not take the oath of the illiterate electors. It is
fitting to remind the parties that there is on file in the record an agreement
according to which all evidence produced in regard to the municipal protest
should be taken into account in connection with the provincial protest.
“The court is of the opinion that there is no need of any pronouncement as to
whether the evidence does or does not support the allegations of the protest
with reference to the direct or indirect intervention of Governor Fuentebella in
the fight over the appointment of election inspectors for Capalonga; whether on
the day of the elections said governor did or did not unduly influence the
electors by means of force or threats before they entered within the area of the
polling place; whether the voting booths of said polling place were or were not
perfectly made; whether there was at first a guard rail but which, the day
before the election, was ordered removed; whether, for many days prior to the
election, the official ballots were in the possession of the board of
inspectors, so that the latter, the night before the election, could have
prepared said.ballots by writing the name of Crescini in the space allotted for
the office of governor; and whether, on the day of the election, they delivered
the ballots so prepared to the electors who were going to vote. Some of these
allegations are proven, while others lack conclusive proof. What seems to be the
surest and most important way for the court to decide upon the protest made with
respect to this municipality, is to rely solely and exclusively on the facts
held in the beginning to have been proven and on the canvass of the ballots
themselves, ever keeping in mind the rule staunchly recommended by legal
authorities, that use should not be made of the power to annul all the votes
cast in a precinct, except in extreme cases and where there are* no means of
ascertaining the true will of the majority, freely and honestly manifested in
the ballots.
“The result given by the latter is as follows: For Manuel Crescini 133, and
for Andres Garchitorena 82.
“Several of these ballots were challenged by the protestant on the grounds he
alleged before the commission. The court will now proceed to make the canvass
and decide upon these impeachments.
“104 of the 107 ballots written by the inspectors are rejected because they
were written for persons who are unknown and who did not take oath of their
incapacity. 87 of these ballots were cast for Crescini and 20 for Garchitorena.
3 of the 107 ballots are admitted as votes for the candidate Crescini, because
they were cast by the three inspectors in their own behalf.
“Nine votes, 3 of them for Crescini and 6 for Garchitorena, which are ballots
Nos. 7, 8, 50, 64, 66,175, 209, 229, and 331, were challenged as having been
written by the same hand. The court is of the opinion that they were not and
admits them, that is, 3 of them for Crescini and 6 for Garchitorena.
“One vote, ballot No. 266, challenged as ambiguous because the name of
Crescini is written on it twice, is rejected.
“One vote, ballot No. 297, for Crescini, challenged as being illegible, is
rejected.
“Five votes, ballots Nos. 230, 238, 244, 304, and 310, are challenged because
they bear the name of Crescini outside of the space allotted for the office of
governor.
“Upon an examination of these five ballots, the court admits as votes for
Crescini, the ballots Nos. 230, 238, and 244, but rejects the other two, Nos.
304 and 310. So that in conclusion, of the 133 votes far Crescini, 88 should be
deducted, to wit: 84 votes by illiterates, one illegible vote, one ambiguous
vote, and 2 votes with the name of the candidate written outside of the proper
space, the remainder, 45 votes, being counted in his favor; and of the 82 votes
for Andres Garchitorena, the 20 votes cast by illiterates should be deducted,
and he is awarded the remainder, or 62 votes.
“Municipality of Iriga.
“Three polling places were provided for this municipality on account of its
large population; and after an examination of the evidence submitted with
respect to the elections had in the first precinct, the court has come to the
conclusion that said elections should be completely annulled on the grounds,
first, that the ballot boxes were tampered with, and, second, that the returns
were falsified. The tampering with the ballots boxes is proved (a) by the
testimony of the chairman and poll clerk of the election board, and (b) by the
physical appearance of the ballot boxes themselves according to the
commissioner’s report, an excerpt from which is as follows:
” ‘Enrique Iturrios, presiding officer of the first polling place, examined
the box of the good ballots of the first polling place and testified that said
ballot box had been changed; that the sides of the ballot box that had been used
on the day of the election were of one single piece, while the sides of the
present ballot box are of two pieces; that the wood of the ballot box used was
newer than that of the present box; that the box of good ballots brought to this
commission is not the same one that was delivered to the municipal secretary
after the election; that the papers containing the signature of the municipal
secretary, which were stuck to the edges of the ballot box after the election,
were no longer there, and that after the election the ballot boxes were not
closed with a key but with nails. He identified the signature that appears on
the strip of paper attached to the lid and extending across the front side of
the box, and testified that said paper is the same one which they (the
inspectors) signed and stuck on the original box in the same manner.’
The minutes also contain a record of the description of the ballot boxes, as
follows:
” ‘With respect to the conditions of the ballot boxes before they were opened
by this commission, it is made a matter of record, that the box of good ballots
is square on all its sides, is made of packing-case boards that are quite thick
and of a natural color, is similar to the other ballot boxes of the same
municipality of Iriga, and is securely nailed. On the cover there is a paper of
the size of legal cap which extends to the middle of the front side of the box,
and on the edges of this paper there are several daubs of sealing wax which
serve as seals. Said paper bears the following words: “1.er Colegio electoral”
(1.st Polling Place) and the signature of Enrique Iturrios and Francisco
Hernandez, and below, “Junio 6, 1916.” On the ballot box of the good ballots
there are also several small strips of paper stuck to the sides, corners, and
edges and bearing the following inscription: “Julio 13, 1916.—Pastor S.
Guadalupe—Municipal Secretary.” In the bottom of the ballot box of good ballots
of the first precinct there is an opening near one corner, two and a half inches
long by one inch wide. This opening does not appear to have been made by outside
force nor by any instrument whatever, but is a natural break in the wood caused
by a knot.
” ‘The ballot box of spoiled ballots is of the same shape and size as that of
the good ballots, except that it is a trifle higher than the latter, due to the
cover being of thicker lumber.
” ‘On the cover of this box there is likewise a long sheet of legal cap paper
reaching to the middle of the front side, and on the edges of this paper there
are also daubs of sealing-wax and the following word: “1.er Colegio
Electoral.—Balotas inutilizadas, Junio 6, 1916.” (First Polling place.—Spoiled
ballots, June 6, 1916.) Said ballots box has also several papers stuck to the
edges bearing the words: “Julio 13,1916.—Pastor S. Guadalupe—Mun. Sec.” ‘
“During the hearing on this incidental question, Enrique Iturrios testified
substantially as follows: That he is the chairman of the election board of the
first precinct; that the ballot box used at the election intended for good
ballots was sealed with paper signed by the three inspectors (the witness,
Francisco Hernandez, and Paulino Federis) and was delivered to the municipal
secretary together with the box of the spoiled ballots (the paper seal of which
box appears not to have been signed by any inspector); that one Sunday night
subsequent to the election, after prior notice by the protestee Manuel Crescini,
witness went with the latter to the municipal building from which they took the
ballot boxes of the first precinct and carried them in :a sack to the
protestee’s house, and as soon as they entered it Crescini sent for the other
inspector, Hernandez, who arrived immediately and thereupon broke the cover of
the ballot box of good ballot and opened without breaking the cover of the box
of spoiled ballots; that after both receptacles had thus been opened, he
(Iturrios) and Hernandez engaged themselves in restoring several spoiled ballots
which bore the name of Manuel Crescini for governor, transferring them to the
ballot box of good ballots, and from the latter removed ballots that had been
cast for Andres Garchitorena and for other candidates, and put them into the box
of spoiled ballots; that they also erased the name of Andres Garchitorena from
other ballots, writing afterwards in place thereof the name of Manuel Crescini;
and that the ballot box for good ballots used at the election was destroyed by
fire and was substituted by a similar box which Crescini had there in his house,
in which latter box the good ballots and those corrected were placed, and after
this had been done the lid was nailed down and was sealed with another sheet of
paper like the one used on the destroyed box, but signed by only the two
inspectors Iturrios and Hernandez, the sole persons who were present during
those proceedings.
“Francisco Velasco, poll clerk of this same polling place, testified that the
ballot box exhibited to him as the one used at the election held in the first
precinct of Iriga, was not the one there used, because the ballot box that they
used did not have a large opening at the bottom; that the sides of the genuine
box were each made of one single piece of lumber and not of several; and that
the paper containing the seals was signed by the three inspectors, and not by
only two of them.
“In one of the ballot boxes there were found 420 good ballots and 3 which are
claimed, and in the other box, 47 spoiled ballots with the word ‘spoiled’ also
written on their reverse, on some of them with an indelible pencil and on the
others with a pen. Of the 420 good ballots, 400 are for Manuel Crescini, 14 for
Engracio Imperial, 4 for Andres Garchitorena, 1 is illegible, and 1
undecipherable. The 47 spoiled ballots can be classified as follows: 13 for
Crescini, 16 for Imperial, 8 for Garchitorena, 3 for Botor, and 7 for various
other candidates.
“Twenty two of said 420 good ballots originally bore on their reverse side
the word ‘spoiled’ which was erased in order to restore them: besides, something
is noticed in these ballots that distinguishes them from the other good ones,
but which, at the same time, makes them similar to the spoiled ballots, and it
is that the good ballots (except 2 of them which perhaps through confusion were
included) all have, in about the central and middle part of their upper half, a
small hole produced by a pin, needle, or thread, which indicates that they were
strung together. The same kind of hole is also noticed in 24 of the 47 spoiled
ballots, while these 22 ballots just above mentioned, as well as the other 23
(of the 47) spoiled ballots, have no such hole. These details show indubitably
that the 24 perforated ballots now found among the spoiled ones were once among
the good ballots and were strung with them by means of the same needle or the
same thread, and that the 22 ballots which the word ‘spoiled’ erased, or, better
said, restored ballots, must have come from the lot of spoiled ballots with
which they must previously have been joined without stringing of any kind.
“The respondent’s attorneys themselves in their brief admit that tfie ballot
boxes were tampered with, and therefore it is unnecessary to dwell further on
this matter.
“The election returns were falsified. The proof are: (1) the notable
discrepancy between the canvass of the votes and the returns. According to the
canvass there were 406 votes for Crescini, while the returns show that there
were 400, but it is to be noted that this number ‘400’ was written above the
number ‘406’ which was erased; (2) this discrepancy is still greater, as well
with reference to the other offices as to the names of the candidates voted for,
Cea, Ortiz, and Nery; and (3) the recitals of the returns are in agreement with
the contents of the ballot boxes after these had been tampered with. Said
discrepancy plainly shows that after tampering with the ballot boxes it was
found necessary to amend and falsify the returns so as to make them agree with
the ballots.
“With the violation of the ballot boxes and the falsification of the election
returns, the annulment of the election would be perfectly warranted; but the
evidence discloses further reasons, to wit, deficiency in the construction of
the voting booths of the polling place, in such way that the secrecy of the
ballot was not safeguarded, and bad conduct on the part of the inspectors, by
their exerting, undue and improper influence on the electors in the polling
place in the booths, and they did not only do this, but they also deprived and
defrauded them of their votes. A mere deficiency of construction in a polling
place is generally not such an irregularity as would invalidate an entire
election; but when the deficiency or irregularity was purposely caused with the
deliberate intent to commit frauds, as in fact were committed, I believe that
they vitiate the whole election. The same may be said of the conduct of the
inspectors who, we would remark incidentally, were all partisans of the
respondent Manuel Crescini.
“Therefore, the elections held in the first precinct of Iriga for the
selection of an incumbent for the office of governor, is annulled.
“SECOND PRECINCT (IRIGA)
“1. The evidence shows that the following irregularities, frauds, and
illegalities were committed at the elections held in the second precinct: 284
good ballots and 25 spoiled ones were found in the ballot boxes: 184 of these
ballots were prepared and written for illiterates by the three inspectors, Juan
Castro, Bembenuto Bersamina, and Juan Salvador in the proportion respectively of
70, 28, and 82. It is to be taken into account that said number includes not
only the ballots identified by the inspectors and which they frankly and
expressly admitted that they had written, but also the ballots which were
discovered by the handwriting expert, with whose opinion in regard thereto the
court agrees. All these 184 ballots are for the protestee Manuel Crescini. There
is not a single vote by any illiterate for the protestant, nor for any candidate
opposing him. 20 of the ballots filled in by the inspector Juan Salvador were
found to be perfectly smooth, with no sign whatever of their ever having been
folded. Before all and above all it appears that these three inspectors were
partisans of Crescini, and that the latter himself recommended their appointment
to the municipal council.
“2. In the election returns (Exhibit G-Iriga) the statements, among others,
are made that the polls were opened at 7 o’clock in the morning and remained
open continuously until 8 o’clock in the evening; that according to the registry
list the number of persons who voted was 285; and that the number of ballots
found in the ballot box was 285. In the same returns however said inspectors
also state that the canvass of the ballots showed the following result with
respect to the office of governor: Manuel Crescini, 276 votes; Engracio
Imperial, 6; Andres Garchitorena, 1; Fulgencio Contreras, 1; Severo Cea, 1;
Felipe Mamponbanua, 1; and Francisco Botor, 1. The votes so distributed make a
total of 287; consequently in that election there were two votes more than the
number of electors. The inspectors did not record the truth, and therefore were
seriously remiss in the fulfilment of their official oath.
“3. The list of illiterate voters, presented in evidence by the respondent as
Exhibit 5-A-Iriga, contains the names of 167 persons who, it is alleged,
‘requested to be assisted by the inspectors, on account of their being
incapacitated, and subscribed their oaths of incapacity.’ Said list shows that
the inspector Juan Castro assisted 65 electors, Bembenuto Bersamina 35, and Juan
Salvador 66; a total of 166 incapacitated electors. So that one more person
voted and it is not known who assisted him.
“4. Said inspectors permitted 21 electors to vote whose names had been
stricken from the election register, and did so knowing that these electors were
disqualified. These facts appear from said register which shows the registration
of 52 electors, opposite whose names the following note was written by the
inspectors: ‘Excluded through challenge by the municipal treasurer, 21 of whom
voted and 31 did not.’
“5. Eleven witnesses for the petitioner testified that they voted for this
candidate; however, only one single ballot for him was found, or five ballots,
if we add to the first the four found among the spoiled ballots, for, on the
other hand, these four are good ballots and should be counted. Hence it is
concluded that the inspectors not only falsified the register, the election
returns, and the list of illiterate voters, but also deprived and defrauded the
petitioner of votes, and awarded them to the respondent.
“6. Three witnesses for the petitioner testified that the secrecy of their
ballots was violated by the inspectors within the booths; and 5 witnesses also
testified that they were going to cast their votes for Garchitorena, but were
unduly and improperly influenced by the inspectors and therefore voted for
Manuel Crescini.
“7. The preponderance of the evidence shows that the illiterate voters did
not take the oath of incapacity before voting.
“If the illegalities above mentioned were the result of only excusable
neglect, error, or ignorance on the part of the inspectors, undoubtedly they
would not vitiate the election; but the court holds that they were all
fraudulent and served as means for the commission of frauds, such as in fact
were committed, and consequently further holds that in the instant case they
necessarily determine the nullity of the election.
“The petitioner insists on the correctness of the list of illiterates,
Exhibit 5-A Iriga. The court however is obliged to reject this exhibit, not only
for the reasons above mentioned but also because of the following: Immediately
after the filing of the motion containing the protest, the court ordered the
municipal secretary to bring in all the ballots boxes and all the documents used
in the election, but that official did not forward the exhibit in question. This
exhibit was presented here in court by the respondent only during the hearing.
Besides, according to the inspector Juan Castro, the exhibit in question or list
of illiterates was made on the very day of the elections, and the names therein
recorded were put down more or less in the same order as these electors voted.
However, such relationship of order was not kept with respect to several names,
particularly the last ones.
“Supposing for a moment the contrary to be true, namely, that there were no
frauds but mere irregularities in the election here in question, then the
canvass of the votes should be made in the following manner:
“According to the returns, Crescini received 276 votes, and Garchitorena only
one. From the 276 votes for Crescini we would deduct the following, as being
null and void: 181 votes by illiterates because they did not take the oath of
incapacity and because no list of such illiterates was made; 21 votes by
electors who voted in spite of their exclusion from the list; 43 votes which
were deposited in the ballot box by electors outside of the regular hours for
voting; 3 votes, because the secrecy of the ballots was violated; 5 votes
obtained through electioneering by the inspectors; and 6 votes of which
Garchitorena was deprived and defrauded by the latter, making a total of 259
votes that are null and void. According to this count, Crescini would have left
17 votes as. against one for Garchitorena; but, as the number of votes cast at
the election amounts to 285, were we to give validity to these 17 votes for
Crescini, he would be elected, not by the people as a whole nor by a majority of
the voters, but by an insignificant fraction of the minority, which could not be
allowed. Whatever be the angle of view, all consideration converges in the
necessity of the annulment of the elections.
“Consequently the court holds that the elections had in the second precinct
of Iriga for the selection of an incumbent for the office of governor are null
and void.
“THIRD PRECINCT (IRIGA).
‘The elections held in this precinct should be annulled, just as have been
those held in the first and second precincts, because of their being tainted
with the following frauds and illegalities proven at the trial:
“1. Two hundred and fifty-nine good ballots were found in the ballot boxes.
Of these, the inspectors Ciriaco Alfelor, Pablo Aguilar, and Manuel Ceguera
identified 116 in the following proportion: by Alfelor 56; by Aguilar 30; and by
Ceguera 30, making a total of 116 ballots by assisted illiterates. However,
according to the list formed by the inspectors and presented in evidence by the
protestee, the number of illiterate reaches only 95. So then, as there are 21
extra ballots, the election inspectors either formed a false list of illiterates
or they assisted 21 electors who could read and write. Here begins the series of
frauds. This list of illiterates is not admissible as proof of anything but the
illegality and fraud committed by the election inspectors.
“2. The list Exhibit 4 Iriga presented by the respondent bears the following
heading: ‘List of the qualified electors who voted in the third precinct, and
shows in their proper numeration the following names among others, to wit: Juan
Beroga 35, Marcos de los Reyes 156, Tomas Oliva 198, Agaton Oliva 199,. Marcos
de los Reyes 209, Tomas Oliva 199, Agaton Oliva 199, Marcelo Tabayug 209, and
Tomas Gonzalez 226. However, the registration lists disclose that Juan Beroga
did not vote, and that Marcos de los Reyes, Tomas Oliva, Agaton Oliva, and Tomas
Gonzalez were not registered in the third precinct, but in the second where they
also did not vote. Marcelo Tabayug’s name is not found on any of the
registration lists of Iriga that is to say, he was not an elector. How
stupendous the frauds just mentioned! How could four electors registered in the
second precincts have voted in the third precinct? And how could one Marcelo
Tabayug have voted in the third precinct, when his name does not appear on any
of the registration lists of Iriga? Frauds upon frauds.
“3. Besides the 259 good ballots found in the ballot box, there were also
found two groups of spoiled ballots, the first composed of 13 ballots bearing on
their reverse side the word ‘spoiled* and the second of 15 ballots without this
word. However, the registration list shows that 282 electors were registered in
the third precinct, of whom 254 voted and 28 did not, and that only 13 ballots
were spoiled during the voting. Hence it is concluded that there, were 5 good
ballots left over, and that there were besides 15 good surplus ballots which
were placed among the spoiled ones. What opprobious name should be deservingly
given to such frauds? The inspectors of the third precinct of Iriga, rather than
inspectors, appear-to have been magicians or sleight-of-hand artists who perform
marvelous tricks by using ballot boxes instead of juggler’s goblets.
“4. The voting was unduly prolonged until 7 o’clock in the evening of the day
of the election, notwithstanding that only 282 electors had registered and only
254 of them voted.
“5. The aforementioned inspectors allowed several electors to vote whose
names appear on the register with the following memorandum written after them by
these same inspectors: ‘Excluded through challenge by the municipal treasurer/
Of the 51 electors so exclude 32 voted.
“The court holds that generally the same irregularities and illegalities were
proven to have been committed in this precinct as in the second precinct, to
wit, violation of the law in reference to the location of the polling places,
the three stations being very near each other and all three of them in close
vicinity to the respondent, to the conditions of the ballot boxes and voting
booths; defraudation of votes; violation of the secrecy of the ballots; and
electioneering within the polling place and the booths.
“In regard to the elections held in this precinct, no other pronouncement can
be made than to declare, as the court does, hereby declare, that said elections
are null and void and should be rejected.
“According to the returns of the provincial board of canvassers, which
accompany the motion of protest, the total number of votes cast in the whole
province for the office of provincial governor is 8,312, distributed among the
following candidates voted for: Manuel Crescini 3,198; Andres Garchitorena
2,468; Engracio Imperial 1,954; and Francisco Botor 692; that is according to
the canvass made by the provincial board, the respondent Manuel Crescini has
over the petitioner Andres Garchitorena a majority of 730 votes. But this count
must be amended to make it conformable to the pronouncements of this decision
with respect to the eleven municipalities affected by the protest. In other
words, the count should be made in the following manner:
Baao……………………………………………… Bato ……………………………………………… Buhi ……………………………………………… Calabanga ……………………………………. Capalonga……………………………………. Iriga, first precinct………………………… Iriga, second precinct…………………….. Iriga, third precinct………………………. Lagonoy………………………………………… Mambulao …………………………………….. Minalabac…………………………………….. Nabua………………………………………….. Sagnay…………………………………………..
making a total of 438 votes for the respondent Crescini and 374 for the
petitioner Garchitorena. Adding the 438 votes obtained by Crescini in the eleven
protested municipalities to the 1,003 votes obtained by him in the remaining
municipalities of the province, and performing the same operation with respect
to the votes cast for Garchitorena in the municipalities, whether or not the
returns from these were the subject of the protest, we shall have the following
final result: In the provincial elections Manuel Crescini obtained as a
candidate for the office of governor of Ambos Camarines 1,441 votes, and Andres
Garchitorena 2,387. Now comparing these total sums, there results a difference
of 946, which represents the majority of votes obtained by Andres Garchitorena
over Manuel Crescini.
“By reason of all the foregoing, the protest is sustained and it is held that
the petitioner Andres Garchitorena was elected provincial governor of Ambos
Camarines with a majority of 946 votes over the respondent. Therefore it is
ordered that a writ of mandamus issue against the provincial board of canvassers
directing it to amend its returns so as to make them conform to the findings of
this decision.
“So ordered with costs against the respondent.
“Albay (for Naga, Ambos Camarines), August 22, 1918.
“Isidro Paredes,
“Judge, 15th Judicial
District.”