IRINEO D. AVIADO, PETITIONER AND APPELLEE, VS. TEODORO TALENS ET AL., RESPONDENTS. TEODORO TALENS, APPELLANT.

This election protest was instituted in the Court of First Instance
of Nueva Ecija by Irineo D. Aviado against Teodoro Talens and others,
for the purpose of establishing the contestant’s right to the office of
municipal president of San Isidro, in the Province of Nueva Ecija, as a
result
of the election held on June 5, 1928′ Upon hearing the cause
the trial judge declared the contestant to have been elected to the
office in question, and ordered that the municipal council, as the
board of canvassers for the municipality, should be notified of the
decision for its proper effects, with costs against the contestee. From
this judgment the contestee appealed.

It appears that when the returns from the election of June 5, 1928,
were canvassed by the municipal council of San Isidro, Nueva Ecija, as
board of canvassers, the contestee, Teodoro Talens, was found to have
received 282 votes, and the contestant, Irineo D. Aviado, 278 votes,
with the other candidates for the same office,—named as codefendants
herein,—receiving smaller numbers. Accordingly, on June 17, 1928, the
municipal board of canvassers proclaimed Teodoro Talens as the
candidate elected to the office of municipal president. The judgment
which is the subject of appeal reverses this conclusion, and places the
contestant Aviado in the lead by 7 votes. In this instance the errors
assigned bring before us for revision the conclusions of the trial
judge with respect to about 32 different ballots. Upon examining these
ballots in relation with the assignments of error, we have no hesitancy
in arriving at the conclusion that the trial judge was correct in all
his conclusions.

Among the irregularities supposed to invalidate various of these
ballots we note the following: In ballot “A-65,” of the first precinct,
two persons were voted as candidates for the office of member of the
provincial board, while only one could be elected; in ballots A-66 and
A-67, of the same precinct, as well as in ballots B-71, of precinct No.
2; C-lll, of precinct No. 3; D-55 and D-56, of precinct No. 4; as well
as E-79 and E-81, of precinct No. 5, one or more persons, who were not
candidates for any office at all, were voted for for various offices
other than that of municipal president. All of these ballots were
allowed by the trial judge as good votes for the contestant.

In connection with these ballots we note that, under the last
paragraph of section 452 of the Election Law, as amended by Act No.
3210 of the Philippine Legislature, a ballot was absolutely invalidated
by votation for any person for any office when the person voted for was
not a candidate; and the language of the statute was so explicit that
this court did not hesitate to give effect to it in this sense (Mandac vs.
Samonte, 49 Phil., 284, 302). But the Legislature speedily changed this
section by eliminating that unfortunate provision (Act No. 3387,
amending section 452). The omission of this provision from the law
clearly indicated, we think, an intention on the part of the
Legislature that a vote for a particular candidate should not be
invalidated by the fact that other persons are voted for in the same
ballot for different offices when they are not candidates.

But the attack now made on these ballots is not based upon the
abrogated provision but on the contention that a ballot in which a
person is voted for who is not a candidate for office ought to be
considered as a marked ballot, and rejected for that reason. With this
we are unable to agree. In our opinion the circumstance that a person
who is voted for for a particular office is not a candidate, is not
alone sufficient to fix upon the ballot the stigma of being a marked
ballot.

Under the same principle, of course, must be considered good, the
ballot in which more persons are voted for than are to be elected to a
particular office, and the same rule must apply to the single ballot
B-72 in which a single name was improperly twice written in the space
for member of the provincial board.

In the ballot C-112, the voter, in writing the name of his candidate
for senator, unnecessarily prefixed to it the word “Senator;” and a
similar error appears in other ballots. The trial court refused to
treat these as marked ballots and we are of the opinion that no error
was thereby committed. The irregularity referred to was due, we
believe, merely to lack of skill on the part of the voter and no
dishonest intention should be ascribed to the ballot from the mode in
which it is filled out.

Exception is taken to the admission of ballot C-116 as a valid
ballot in favor of the contestant. This ballot is regular in form, but
was found in the box of spoiled ballots. The reason why his Honor
allowed it as a good vote for the contestant is found in the fact that
the election returns here showed that the valid ballots cast in the
election were 254 and the spoiled ballots were 33, whereas in the box
of used ballots only 253 ballots were found and in the box for spoiled
ballots 34, including the good one now in question. In view of the
additional circumstance mentioned in the opinion of the trial court
in the discussion of the merits of this ballot, we are of the opinion
that error on his part in accepting it as a valid-ballot for the
contestant has not been shown.

Error is assigned to the action of the court in admitting several
ballots which were alleged to be illegible. We have examined them and
are of the opinion that the intention of the voter to vote for the
contestant is clearly indicated and that his name, though
in artificially written on said ballots,
is intelligible. In one
ballot we note that the word intended for Irineo is written after the
surname Aviado. This is not fatal to the ballot.

A number of ballots is claimed by the protestee which were rejected
by the trial court on the ground that the name of the contestee was
written in the spaces intended for the name of candidates for other
offices, as where the contestee’s name appeared in the space for member
of the provincial board or municipal vice-president. It is a tenable
supposition, of course, that the voter intended in these cases to vote
for the contestee for the office of municipal president, for which he
was in fact a candidate; but it is impossible to count the vote in this
sense when the name is clearly written in the space reserved for
another office.

The other irregularities mentioned in the appellant’s brief are not
in our opinion of sufficient weight to merit discussion; and our
conclusion is that the errors assigned to the decision of the trial
court are not well taken.

The judgment appealed from will therefore be affirmed, and it is so ordered, with costs against the appellant.

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