PABLO MONTEZA, PETITIONER, VS. THE HONORABLE COURT OF APPEALS, AND ULDARICO REYES, RESPONDENTS.

Appeal from the decision of the Court of Appeals, in its CA­-G. R.
No. 34914-R, affirming the decision of the Court of First Instance of Leyte, in its Election Case No. E-24, that declared the
herein respondent-appellee Uldarico
Reyes as the mayor-elect of Caibiran, Leyte in the general elections of 12 November 1963 with a 30-vote
margin, over and against the herein petitioner-appellant Pablo Monteza.

After the said elections, the municipal board of canvassers of Caibiran, Leyte,
proclaimed petitioner Monteza as the mayor-elect with
a count of 1,378 votes; the count for respondent Reyes was 1,367 votes.  In due time, Reyes filed a protest in the
Court of first Instance of Leyte; Monteza
counter-protested.  After trial, the
court a quo rendered judgment for protestant Reyes for having
received 1,375 votes as against the protestee Monteza’s 1,345 votes. 
Monteza interposed an appeal but the Court of
Appeals sustained the trial court, reducing, however, the majority of Reyes to
eight (8) votes, the appellate court’s count being 1,362 votes for Reyes, while
its count for Monteza was 1,354 votes.

Not satisfied with the appellate court’s decision, petitioner Monteza appealed to this Court assigning, in the main,
errors in the appreciation of ballots.

The Court of Appeals invalidated, as possessing distinguishing
marks, the ballots marked as Exhibits “P-11-9”, “P-8-A”,
“P-8-D”, and “P-8-E” because in the first (Prec. No. 11) “Clemco Clemco” was written on line 3 of the space for
senators; in the second (Prec. No. 8) “Padilla-Panilla” was written on line 8; and, in the fourth (Prec. No. 8) “Liuag-Luag”
was written on line 5.  The invalidation
of these (4) ballots is claimed by the appellant as an error, and he cites as
authorities the cases of Cruz vs. Court of Appeals, et al., G. R. No.
L-14095, 10 April 1959, and
Sarmiento vs. Ouemado,
G. R. No. L-18027, 29 June 1962.  In the Cruz, case, there was a
misspelling in Exhibit G-14-Pineda, for which reason, this Court ruled that the
repetition of the name of candidate Clemente shows
the voter’s rectification of the misspelling and not to identify his ballot; in
the present case, there is no rectification of a misspell­ing.  In the Sarmiento
case, the repetition of the candidate’s names in the respective ballots
Exhibits Q-58 and Q-62 was not considered a mark because of the lack of evidence
as to the intent to mark the ballots; in the present case, there is evidence aliunde that a party inspector, during the
canvassing of votes, was seen holding a list, apparently of voters who sold
their votes, and checking it every time a ballot was read where names of
candidates were twice written.^[1]
In effect, therefore, the Sarmiento case
sustains the invalidation by the Court of Appeals of the four (4) questioned
bal­lots.  On their face, the voters that
wrote the ballots were intel­ligent, familiar with the scriptural process, and
the repetitions do not appear justified by mistakes or by any necessity to
clarify the names as originally written on the ballots.

Of the ballots involved in the second assignment of error, marked
as Exhibits “P-15-A” to “P-15-M”, inclusive, the appealed
decision states:

“X x x
.  These thirteen ballots were in­validated
by the trial court as marked because they followed one and the same pattern of
voting, viz.: Lt. Governor: A. Zamora; Board Member for Sub-province: J. Maderazo; Mayor Pablo Monteza;
Vice-Mayor Pedro Ventulan; Councilors: all coun­cilors
were voted with initials of their first names. 
After having closely examined the context of each one of these ballots,
we are unanimous in our opinion that indeed these ballots, on their respective
faces, exhibit a preconceived pattern of marking.  The cir­cumstances pointed out by the lower
court are so patent that they make us believe that a common pat­tern of marking
these ballots was well conceived and subtly done.  True, in isolated cases these circums­tances
may not brand the ballot as marked. 
However, it would be too much for us to believe that in all these 13
ballots the voters merely coincided in their manner of voting.  Indeed this is too much of a mere
coincidence.  It is easier to believe, in
this part­icular instance, that the above circumstances were parts of a well
conceived scheme to check whether or not certain voters had fulfilled their
promises to vote for a given candidate who, in the case at bar, is obviously
the protestee. 
X x x.”

Our own examination of these ballots shows that their description
by the Court of Appeals is not a faithful portrayal of what they are.  It is true that in twelve (12) of the
thirteen (13) ballots, the same candidate for lieutenant-governor, board member
and mayor were voted for (Exh. “P-15-A” has
a different candidate for vice-mayor); but it is not true that all councilors
were voted for with initials of their first names.  The given name and the surname of a
councilor-candidate (line 5) were written on Exhibit “P-15-A”; a
“Dr. Doring Perez” was voted for (line 1)
on Exhibit “P-15-C”; the given name and surname of two (2)
councilor-candidates (lines 1 and 6) were written on Exhibit
“P-15-J”; and no initials of the given names of councilors-candidates
were written on lines 4 and 5 of Exhibit “P -15 -L”.

We fail to see in the aforesaid ballots any pattern of
marking.  That the same candidates for
lieutenant-governor, board member and mayor were voted for in twelve (12)
ballots is not sufficient to hold them as marked, and, therefore, invalid.  We consider them valid in the absence of
evidence aliunde that the use of initials,
instead of given names, in the space for councilors was done for identifying
purposes.

In his third assignment of error, petitioner Monteza
urges that Exhibits “P-1-H”, “P-8-G”, “P-8-B”,
“P-11-10” and “P-10-G” were erroneously discounted by the
Court of Appeals.

We agree with the Court of Appeals in its appreciation of the
ballot, Exhibit “P-1-H”.  In
this ballot, the voter wrote “Montego” on
the space for mayor, with some illegible strokes underneath; all other spaces
were left unfilled, except on the sixth line of the space for councilors where
“POEj” was written upside-down in bold
letters.  In the absence of cogent
explanation for this anomaly, this ballot must be held marked and invalid (Cf. Lloren vs. Court of Appeals, et al., G. R. No. L-25907, 25 Jan. 1967).

On the space for mayor, in Exhibit “P-8-G”, is written
“P. Ma­tilaza“. The appealed decision held
that this ballot did not sufficient­ly identify the protestee.  We believe the contrary.  The initial “P.” corresponds to the
initial of the protestee’s given name
“Pablo”, while “Matilaza” is idem
sonans with his surname “Monteza” (Cf. Conui-Omega
vs. Samson, G. R. No. L-21910, 11
Nov. 1963; Arzaga vs. Bobis,
G. R. No. L-18953, 30 Oct. 1962).  Valid vote for the petitioner.

Exhibit “P-8-B” was held as marked by the courts below
be­cause on lines 1 and 8, space for senators, “Manuel Roxas”
and “Antonio Climaco” were voted for.  The ground for the rejection being that
Manuel Roxas could not be a candidate in 1963 because
he was the late President of the Philippines
and the use of his name was intended as a distinguishing mark.  The objection does not jus­tify the
invalidation of this ballot because another Roxas,
Gerardo, was a candidate for senator in 1963 and his nickname “Gerry”
could be easily mistaken for “Junior”, leading to the conclusion that
the candidate bore the same name as his father. 
Caution against the disenfranchisement of electors leans more to the
conclusion that the wrong given name, with correct surname, as written, was an
innocent error; in the same way, the voter’s writing the wrong given name for
candidate Climaco should not be construed as a
distinguishing mark in the absence of other proof.

The Court of Appeals could not read the writing on the space for
mayor in Exhibit “P-11-10” and, therefore, did not count it as a vote
for the protestee. 
The trial court read the writing as “Minama­hal
Montisa” but rejected it as marked.  Although we must admit the difficulty in
reading it, our examination makes it out as “Mina­hal
Monteza” with the letter “z”
underneath “Monte” and the last letter “a” underneath the
letter “z”.  Notwithstanding
the difficulty in reading the writing, since it can still be discerned by the
normal naked eye, the vote should go for the petitioner.  The word “Minahal”
is merely an expression of affection and does not invalidate the ballot.  (Rule 9, sec. 149, Revised Election Code).

Exhibit “P-10-G” was held to be a marked ballot in the
ap­pealed decision because “Bert Romualdez”
was written on the space for governor; “Atty. Maderazo“,
on the space for board member; “Am Monteza“,
on the space for mayor; and the names of the can­didates voted for were
prefixed with “Mr.” on every line from the space for vice-mayor to
the last line on the space for councilors, except on the first line.  The ruling is erroneous.  The rules on the appreciation of ballots
allow the use of nicknames if accompanied by the name or surname of the
candidate (Rule 9); and the use of the prefix “Mr.” is likewise
declared permissible (Rule 5); and since no evidence shows that there was
intent to identify the voter, the ballot should not be annulled as marked.

The last issue is whether or not the Court of Appeals erred in
crediting motu–proprio four (4)
additional votes for respondent Reyes. 
The board of canvassers failed to count these votes, and the trial court
did not consider them; but the Court of Appeals discovered the mistake and,
without these votes having been raised as an issue in the appeal, the appellate
court included them in sum­ming up the votes received by the respondent.

The inclusion of these four (4) votes was correct.  It is a settled doctrine in this jurisdiction
that the appellate court, in election contests, may consider ballots not taken
up in an assign­ment of error in order that substantial justice, the will of
the elec­torate and public interest should be served and protected. (Cababasada vs. Valmoria, 83 Phil.
112; Ibasco vs. Ilao, G. R.
No. L­-16512, 29 Dec. 1960;
Borja vs. De Leon, et al., G. R. No. L-­20245, 30 Sept. 1963; Roldan
vs. Monsanto, G. R. No. L-21570, 8
Nov. 1963).

In resume, sixteen (16) votes for petitioner Monteza
should be added to the count (1,354) stated in the appealed decision, or a
total of 1,370 votes while that of respondent Reyes remains the same (1,362) —
a difference of eight (8) votes by the former over the latter.

ACCORDINGLY, the appealed decision should be, as it is
hereby, reversed and another one entered declaring petitioner Pablo Monteza the duly elected mayor of Caibiran,
Leyte in the elections of 12 November 1963.  Costs against respondent Uldarico
Reyes.

After this decision becomes final, let a copy thereof be
furnished to the Commission on Elections.

SO ORDERED.

Makalintal, Bengzon,
JP, Zaldivar, Ruiz Castro, Angeles, and Fernando, JJ., concur.

Concepcion, C.J., Sanchez, and Dizon, JJ., did not take part.

^[1]
In its decision, the Court of Appeals did not specifically pass upon the
evidence regarding the actuation of the inspector, but decried, in general
terms, the not uncommon practice of politicians in buying votes.  The existence of the evidence aliunde appears in the trial court’s decision, as quoted on
page 4 of the respondent’s brief and the quoted portion has not been dis­puted
by the petitioner.