G.R. No. 30578. January 28, 1929
ENRIQUE SALVANI, PETITIONER, VS. HONORABLE LEONARDO GARDUNO, JUDGE OF FIRST INSTANCE OF THE SEVENTEENTH JUDICIAL DISTRICT, MAMERTO PORTILLO, RAMON MAZA, MANUEL PALACIOS AND ANGE…
STREET, J.:
the petitioner, Enrique Salvani, seeks to compel the respondent judge
of the Seventeenth Judicial District to order the opening of the ballot
boxes of the municipality of Caluya and also to receive the testimony
of numerous witnesses who, waiving their privilege, are supposed to be
ready to testify that they voted for the petitioner for the office of
provincial governor in the eighth precinct of San Jose in the general
election held on June 5, 1928,—all in connection with an election
protest which, at the time this petition was filed, was being heard
before the respondent judge, wherein Mamerto Portillo, one of the
present respondents, is the protestant and Enrique Salvstni, the
present petitioner, is protestee.
It appears that after the last general election Enrique: Salvani,
the petitioner, was declared by the provincial board of canvassers to
have been duly elected to the office of provincial governor of the
Province of Antique, having received 2,934 votes, while Mamerto
Portillo, his nearest competitor, received 2,925 votes, with a smaller
number of votes for three other candidates. When the result of the
election was proclaimed, Mamerto Portillo, on July 7, 1928, instituted
a protest, containing numerous specifications of alleged
irregularities, illegalities, and frauds, but for the purposes of this
decision it is? only necessary to note that he attacked the returns
from the municipality of Caluya, and alleged, among other things, that,
in the single precinct of said municipality, the inspectors rejected
and refused to count for the protestant 85 valid ballots cast for the
protestant for the office of governor. To this protest, the protestee,
Enrique Salvani, answered with a general denial of all specifications
and, by way of counter-protest, set up various irregularities,
illegalities, and frauds which he asserted had been committed to his
own prejudice in various precincts. However, none of the specifications
of the counter-protest called in question the result in the returns
from Caluya; but with respect to the eighth precinct of the
municipality of San Jose, the protestee alleged, among other things,
that the election inspectors illegally failed to count in favor of the
protestee 30 votes lawfully cast in his favor and that, furthermore,
said inspectors awarded to the protestant Portillo 32 votes that were
invalid on account of the alleged illegibility of the name of the
person voted for in said ballots.
The charges in the protest and counter-protest being of a nature to
require the opening of many boxes from different precincts, the court
appointed commissioners and the boxes were subsequently brought into
court. However, when the time approached for opening the boxes from the
municipality of Caluya, it appeared that witnesses needed by contestant
in connection with the opening of these boxes had not arrived, owing
apparently to difficulties of communication. The contestant therefore,
in order, so the return of the respondent judge informs us, not to
delay the proceedings, announced that he waived the opening of these
boxes and would withdraw his allegations of errors and frauds with
respect thereto. His motion to this effect was admitted by the court,
with the result that the boxes from Caluya were not opened. Against
this action the attorney for the protestee Salvani objected, and
insisted that the boxes from Caluya be opened and the votes recounted.
But as the protestee had not inserted in his counter-protest any
charges of irregularities or frauds with respect to the returns from
Caluya, his Honor refused to order the opening of these boxes.
In the present proceeding the incident above detailed is made the
basis of the first ground of action) stated in the petition; and it is
here insisted that the court was bound to order the opening of these
boxes and that the writ of mandamus is the proper remedy to compel him
to make such order. This contention is not, in our opinion, well
founded. It was without doubt proper for the court to permit the
protestant Portillo to retire the charges made in his protest with
respect to irregularities and fraud in the precinct of Caluya, and
after that was done there was nothing in the protest or counter-protest
which raised any question as to the regularity of the proceeding in
this precinct. It was therefore discretionary with the court whether
the boxes from this precinct should be opened. It is true that the
statute permits the court of its own accord, if the interest of justice
so requires, to order the opening of boxes (Election Law, sec. 479);
but there is nothing requiring the court unconditionally to open boxes
when there is nothing in the protest or counter-protest impugning the
returns from a particular precinct. It isi established doctrine here
that when a judge of a Court of First Instance, in the exercise of his
discretion, has refused’ to order the opening of ballot boxes, not
challenged in the protest or counter-protest, such action will not be
disturbed by us, in the absence of a showing that the discretion of the
court has been abused. In the case before us there is nothing to
indicate that an abuse of discretion was committed; and the
circumstance that the boxes pertaining to Caluya had been previously
brought to the court in this case, under an arrangement satisfactory to
both parties, does not in our opinion materially affect the result. The
first ground of action stated in the petition must therefore be
considered ill-rounded.
The second cause of action is concerned with the proceedings with
respect to the allegations of the counter-protest concerning the eighth
precinct of the municipality of San Jose. In this connection it appears
that when the commissioners came to open the box of used ballots from
this precinct, it was found that the ballots and other papers contained
in the box had been destroyed by anay and some corrosive
substance to the extent that only 9 ballots for the Protestant and 1
ballot for the protestee could he made out, while these ballots were
partially destroyed by the same agencies. These facts were made to
appear in a report which the commissioners submitted to the court on
September 25, 1928. Thereupon the attorney for the protestee submitted
to the court a proposed amendment to his counter-protest, in which it
was alleged that the contents of this box had been destroyed by the
protestant or persons acting in his interest for the criminal purpose
of making impossible the examination of the ballots and the consequent
discovery of the frauds which the protestee claimed had been committed
in said precinct. The admission of this amendment was opposed by the
attorney for the protestant; and when this matter came to the attention
of the court, his Honor, the trial judge, inquired of the attorney for
the protestee whether he had any proof to show that the destruction of
the ballots was due to the criminal manipulations alleged in the
amendment. To this the attorney for the protestee replied that he had
present sixty-three witnesses, residents of the eighth precinct of San
Jose, who would waive their privilege of secrecy and testify in court
that they had voted for the protestee in the election in question, and
the attorney submitted that, in view of the fact that the election
returns from this precinct conceded only 37 votes to the protestee, the
testimony of the sixty-three witnesses should be accepted by the court
as sufficient to show that the frauds alleged had been committed. It
was furthermore indicated at this hearing that the proof referred to
was offered for the purpose of showing” that the election returns were
false and dishonest and that inasmuch as the ballots themselves had
been destroyed, it was the contention of the protestee that the returns
from tins precinct should be disregarded altogether.
Upon consideration of the matter the court refused to allow the
amendment and ruled that the testimony of the alleged sixty-three
voters, who would testify that they had voted for the protestee, could
not be received. Upon this incident the second cause of action of the
present petition is based.
We see no good reason for rejecting the proposed amendment, because
it was based upon facts that could only be known when the box whose
contents had been destroyed was opened, and the amendment was submitted
promptly thereafter. It is probable that the amendment was not in fact
necessary, because the proof with which we are here concerned would
apparently have been admissible in evidence upon the issue already made
of fraud in the returns from this precinct. Nevertheless, as the
amendment was in fact offered and submitted promptly after the
discovery of the facts with which the amendment was chiefly concerned,
it should have been admitted by the court.
The main point to be considered, as we conceive it, is whether, when
the ballots are found to have been destroyed, the returns may be
impeached by submitting the testimony of voters as to how they voted.
The trial court was of the opinion that such testimony is not
admissible unless it is shown by some proof, independent of the
testimony of the voters, that the destruction of the ballots was due to
criminal intervention proceeding from the adversary candidate or his
partisans. In support of this proposition reliance is placed upon
Cecilio vs. Belmonte and Court of First Instance of Nueva
Ecija (48 Phil., 243), where it is said that while the testimony of the
voters is admissible to rehabilitate the returns, yet such testimony
cannot be conceded greater weight than the official returns, unless it
is shown that the returns are false. This statement suggests the
necessity for independent proof of fraud. Also in Valenzuela vs.
Carlos and Lopez de Jesus (42 Phil., 428), this court guardedly said
that testimony of the character of that offered in this case could be
admitted for the purpose of rehabilitating the returns, when the
ballots, which are of course the best evidence, have been destroyed.
But it was not stated in that case that such testimony would be
admissible to impeach the returns. In Dayrit vs.
San Agustin and Valdez (40 Phil., 782), it was held that the testimony
of individual voters could be received to sustain the official returns.
That case was one where the controversy was upon the point whether the
ballots which had in fact been used in the election the spurious
ballots; and the testimony tended to show that the ballots were at any
rate those that had been supplied to the voters by the election
officials.
This court is no friend of artificial exclusionary rules of
evidence, and upon considering the point in all its bearings, we are of
the opinion that the testimony offered should, under the circumstances,
have been received. If it is permitted to one of the candidates to
submit such evidence to maintain the integrity of the returns, as was
done in Valenzuela vs. Carlos and Lopez de Jesus, supra,
we see no reason why, under similar circumstances, the same proof
should not be admitted when offered for the purpose of impeaching the
returns. Of course the ballot box, in case of a contest over the
returns, supplies the best evidence as Jo persons for whom the votes
were cast; but when the ballots have been destroyed, the parties
interested must be permitted to resort to other proof, and the
testimony of the voters is admissible, we think, without any
independent proof that the ballots were destroyed by the criminal
manipulation of the candidate who is supposed to have profited by the
fraud. It is true that the testimony of persons who, after an election,
may claim that they voted for a certain candidate, should be received
with caution, but after all it must be weighed by the same principles
that govern the appreciation of testimony of all kinds.
From what has been said it follows that the petition must be denied
in so far as it seeks to compel the opening of the election boxes of
the precinct of Caluya, constituting the subject matter of the first
cause of action; but the petition will be granted with respect to the
second cause of action, and the respondent judge is directed to allow
the proffered amendment to the counter-protest relative to precinct No.
8 of the municipality of San Jose and to grant a further supplemental
hearing to the parties at which the petitioner will have an opportunity
to present the proof heretofore offered by him, consisting of the
testimony of voters, to establish the facts expressed in the amendment
and offer of proof. So ordered, without costs.
Johnson, Malcolm, Villamor, Johns, Romualdez, and Villa-Real., JJ., concur.
DISSENTING
OSTRAND, J.:
I dissent from the ruling of the court upon the second cause of action.