CONRADO PENSON, PROTESTANT AND APPELLEE, VS. TIMOTEO PARUNGAO ET AL., PROTESTEES. TIMOTEO PARUNGAO, APPELLANT.

This is an appeal from the judgment of the Court of First Instance
of Nueva Ecija declaring Conrado Penson to be the municipal president
elect of the municipality of Talavera, Nueva Ecija, as against his
opponent Timoteo Parungao.

The record discloses that Conrado Penson and Timoteo Parungao were
registered candidates voted for the office of municipal president of
said municipality of Talavera. According to the municipal canvass,
Parungao obtained 525 votes and Penson 518, that is, a majority of 7
votes in favor of Parungao.

Penson contested Parungao’s election in the Court of First Instance,
alleging several irregularities which need not be stated here, since
the appeal is expressly based upon the consideration given to certain
ballots. The contest was heard in the Court of First Instance of Nueva
Ecija, which, having revised the ballots and considered the other
evidence adduced by the parties thereto, decided that Penson obtained
516 valid votes, while Parungao obtained only 496. Therefore, Penson
won the election with a majority of 20 votes.

Parungao appealed from the judgment of the lower court to this
court, and in his brief assigns thirty errors as committed by the court
a quo.

These thirty alleged errors involve a discussion of 53 ballots, of
which 28 were rejected by the court below and are now claimed by the
appellant for himself, and the remaining 25 were adjudicated by the
court below to the appellee and are now impugned by the appellant who
contends they should not have been adjudicated to said appellee.

Examining the 28 ballots claimed by the appellant as unduly deducted from those cast in his favor by the court below, we find:

1. Ballots A-153 of precinct No. 1, ballots E-145, E-146,
   E-147, E-148, E-149, E-150, E-151, E-152, E-153, E-154, E-155, E-156,
   E-157, E-158, E-159, E-160, E-161 and E-162 of precinct No. 5 (a total
   of 19 ballots), were rejected by the court below as marked ballots,
   because in all of them appears the name of Felipe Vengco, the only
   person voted for the office of councilor, who filed his certificate of
   candidacy and was elected with 353 votes. It is true that there are
   some witnesses who testified that Felipe Veng,co told his electors to
   write only his name (Felipe Vengco) in the space for councilor in
   order to know that they really voted for him. Supposing that Felipe
   Vengco really made this suggestion to the voters in his election
   campaigns, yet, there is no positive evidence that the appellant
   Parungao was a party to such combination, if we may call it so; hence,
   if Vengco’s conduct could have any effect, it would be only on himself,
   and not on Parungao. Furthermore, said 19 ballots are apparently very
   clean, and show none of the distinguishing marks forbidden by the law
   to be placed upon ballots. The marks on ballots must appear upon the
   same and cannot be proved by evidence aliunde, but with data contained
   in the ballots themselves. We are of the opinion that the 19 ballots
   referred to must be counted in favor of the appellant.

2. Ballot C-92 of precinct No. S, and ballots D-69 and D-70 of precinct
   No. 4 (3 ballots) where appear respectively the names Tinio Palaguae,
   T. Aaramugao, and Tiano Paroao, which were rejected by the court below,
   must be counted in favor of the appellant, according to the rule of idem sonans.
   
3. Ballot B-155 of precinct No. 2, is marked “Mamatay si Conrado Fenson at
   si Fa.” (“Down with Conrado Penson and Fa.”), and ballots E-136, E-137
   and E-138 of precinct No. 5 are marked, the first with these words
   “alijandru lim ñga Htud Butiog,” and the other two with a strip of
   paper pasted on the ballot bearing the name of Domingo Bonifacio. These
   4 ballots were duly deducted from the appellant.

4. Ballot E-139 of
   precinct No. 5 for the appellant is valid although the letters of his
   name are very lightly written, doubtless due to a defect in the pencil
   used and to the writer’s scant ability to write; and

5. Ballot E-140 of precinct No. 5 should not be counted in the appellant’s
   favor, because the person voted for therein is one named Francisco
   Angeles.

It is thus seen that out of the 28 ballots cast in favor of the
appellant and rejected by the court below, 28 should be adjudicated to
him as valid ballots. Comparing this number with the appellee’s
majority of 20 votes, according to the canvass of the court below, it
follows that the appellant was elected to the office of municipal
president here in question by a majority of 3 votes.

In view of this result there is no need to discuss the 25 ballots in
favor of the appellee impugned by the appellant. Wherefore, the
judgment appealed from is affirmed in so far as it is in harmony
herewith, and reversed in so far as it is not; and it is held that the
appellant Timoteo Parungao was elected to the office of municipal
president of Talavera; Nueva Ecija, by a majority of three votes over
those obtained by the appellee, Conrado Penson.

Without special pronouncement as to costs. So ordered.

Johnson, Street, Malcolm, Ostrand, Johns, Romualdez, and Villa-Real, JJ., concur.