VICENTE DITCHING, PROTESTANT AND APPELLANT, VS. ESTEBAN JALANDONI, FELIX MONTINOLA LOZADA AND VICENTE TINSAY, PROTESTEES. ESTEBAN JALANDONI, APPELLEE.

This is an appeal taken by the protestant Vicente Ditching from the
judgment of the Court of First Instance of Occidental Negros declaring
the protestee Esteban Jalandoni to have been legally elected to the
office of municipal president of Victorias, Occidental Negros, in the
general elections held in said municipality on June 5, 1928, with a
plurality of 3 votes over the protestant; with the costs against the
latter.

In support of his appeal, the appellant assigns the following
alleged errors as committed by the trial court in its judgment, to wit;

“1. The lower court erred in holding ballots,
Exhibits B-1, B-2, B-5, B-15, D-2, and D-12 valid, for the office of
municipal president in favor of the protestee Esteban Jalandoni and
counting them as valid votes.

“2. The lower court erred in
holding ballot Exhibit C-16 valid and, consequently, in not having
counted the vote cast therein for the office of municipal president in
favor of the protestant Vicente Ditching.

“3. The lower court
erred in holding that the protestee Esteban Jalandoni obtained 340
votes and the protestant Vicente Ditching 337 and, consequently, in
holding the protestee Esteban Jalandoni to be the legally elected
municipal president of the municipality of Victorias, with a plurality
of three votes.

“4. The lower court erred in not holding that
the protestant Vicente Ditching obtained 338 votes and that the
protestee Esteban Jalandoni only obtained 335 and, consequently, in not
holding the protestant Vicente Ditching to be the legally elected
municipal president of the municipality of Victorias with a plurality
of 3 votes over the protestee Esteban Jalandoni.”

The following pertinent facts are necessary for the solution of the questions raised by the present appeal:

On June 5,1928, Vicente Ditching and Esteban Jalandoni were, among
others, registered candidates voted for the office of municipal
president of Victorias, Occidental Negros. After the voting was over
and the canvass of the votes made, Esteban Jalandoni obtained 342
votes, and Vicente Ditching 330, with a plurality of 12 votes in favor
of the former, who was then proclaimed the winning candidate for said
office.

Not satisfied with said result Vicente Ditching filed an election
protest against Esteban Jalandoni on June 19,1928, which was answered
by the latter in due time with a Counter-protest.

The Court of First Instance of Occidental Negros having acquired
jurisdiction by virtue of said motion of protest, a commission was
appointed for the examination and revision of the ballots and other
papers pertaining to said elections. Having performed their task the
commissioners appointed submitted their report on July 23, 1928
adjudicating 119 votes to Vicente Ditching, and 189 to Esteban
Jalandoni in precinct A of the municipality of Victorias, and 105 votes
to Vicente Ditching and 51 to Esteban Jalandoni in precinct C, that is,
a total of 224 votes in both precincts to Vicente Ditching, and 240
votes to Esteban Jalandoni.

Having considered the report and heard the parties upon the
contested ballots admitted by said commissioners, the trial court
rendered judgment adjudicating 340 votes to Esteban Jalandoni, and 337
to Vicente Ditching.

Not satisfied with that decision, Vicente Ditching took this appeal.

As to the first assignment of error, it appears from the judgment
appealed from that ballot B-l in favor of Esteban Jalandoni was
impugned by Vicente Ditching because the coupon had not been removed
from it, and that ballot B-2 also in favor of Esteban Jalandoni was
contested, not only because the proper coupon had not been removed, but
also because the names of the candidates voted for by the elector had
been written on the back of it.

Although it is only in this instance alleged that said ballots
should not be admitted in favor of Esteban Jalandoni because they are
among the seven (7) ballots which, according to the report of the
commissioners submitted on July 23, 1928, were taken from the
spoiled-ballot box in the recount made by said commissioners, it is no
reason why they should be admitted, since the fact that they were found
in said box raises the presumption that they were spoiled, and more so,
since the word “spoiled” was written upon them, as required by the law,
and whosoever claims them as valid must prove conclusively that their
deposit in the aforesaid box was due to a mistake or to fraud, in order
that they may be counted as valid. (Bulan vs. Gaffud, 49 Phil., 906; Mandac vs. Samonte, 49 Phil., 284; Lucero vs. De Guzman, 45 Phil.,
852; Valenzuela vs. Carlos and Lopez de Jesus, 42 Phil., 428.)

The trial court, therefore, erred in admitting them as valid ballots in favor of Esteban Jalandoni (De los Angeles vs. Rodriguez, 46 Phil., 595).

As to ballot B-15, wherein the words “Aslaben Ahanla” appear written
in the column for municipal president, from the sound of its
pronunciation it is clearly seen that it was the voter’s intention to
vote for Esteban Jalandoni for the office of municipal president of
Victorias, but that his efforts to write his candidate’s name were not
crowned with success on account of his lack of ability to write and
spell. The name written in said ballot comes under the rule of idem sonans, and is admissible.

The lower court, therefore, did not commit an error in admitting it as valid in favor of Esteban Jalandoni.

With respect to ballot Exhibit D-2, wherein appear the words
“Sitiban Jaladu/’ is valid and admissible for the same reasons given
for the validity and admissibility of ballot B-15, since the word
“Sitiban” is the pronunciation given by Visayans of limited education
to the word Esteban. And the word “Jaladu” has the “u” written near the
right edge of the paper with no more room to continue writing the
syllable “ni.”

The same reasons support the validity and admissibility of ballot
Exhibit D-12, in which appear the words “Baslian Jalandoni.” Moreover,
it does not appear that there was another candidate fpr the office of
municipal president with the name Jalandoni and consequently, the voter
could not have had any other intention than to vote for Esteban
Jalandoni for the office of municipal president of Victorias.

As to ballot Exhibit C-16, claimed by the protestant and appellant
Vicente Ditching as a valid vote in his favor, contending that the
initials R. M. appearing at the bottom of said ballot do not constitute
a distinguishing mark, inasmuch as the last space for municipal
councilors was blank, the fact that said initials were written below
and outside of said space, does not mean that the voter wished to vote
for a councilor with said initials, but that he placed them there in
order to identify his ballot. This being so, it is a violation of the
prohibition contained in section 452 of the Election Law and the trial
court did not commit an error in rejecting said ballot as a vote in
favor of Vicente Ditching.

Briefly, then, we hold that from the 340 votes adjudicated to
Esteban Jalandoni two votes must be deducted, leaving 338 votes,
notwithstanding which, he still has a plurality of one vote over
Vicente Ditching to whom 337 votes were adjudicated.

With the aforesaid modification, the judgment appealed from is affirmed, with costs against the appellant. So ordered.

Johnson, Street, Malcolm, Villamor, Ostrand, Johns, and Romualdez, JJ., concur.