MANUEL SALAK, CONTESTANT AND APPELLANT, VS. LUIS ESPINOSA, CONTESTEE AND APPELLEE.

This appeal has been brought to reverse a judgment of the Court of
First Instance of the Province of Tarlac, dismissing an election
contest instituted by Manuel Salak against Luis Espinosa, for the
purpose of obtaining a declaration to the effect that the contestant is
entitled to the office of municipal president of Tarlac.

As a result of the election held on June 5, 1928, the contestee,
Luis Espinosa, was declared elected over his opponent, Manuel Salak, by
1,191 votes against 1,175, that is, with a majority of 16 in favor of
Espinosa. Upon hearing the cause the trial court came to the conclusion
that Espinosa had received only 1,187 votes while Salak had received
1,175, or a majority of 12 votes in favor of Espinosa. His Honor
accordingly confirmed the election of Espinosa and dismissed the
contest.

All of the assignments of error involve the appreciation of
particular ballots and, after careful examination of said ballots, in
relation with the assignments of error of the appellant, we adhere to
the appreciation of the ballots made by the court a quo, except as hereinafter stated:

Error IV, directed towards ballot Exhibit L-E-3, is
well taken. In this ballot the name of Luis Espinosa is not written in
the space designed for municipal president. Instead, he is voted for as
one of the municipal councilors. The counting of this vote in favor of
the appellee was due to evident oversight.

Error VI, directed
to ballot “rollo B,'” is well taken. The ballot should have been
counted for the appellant. His name is clearly written in the space for
municipal president, and the vote for him for that office is not
invalidated by the fact that the voter inadvertently first voted for
him also as vice-president. But, doubtless perceiving the mistake, the
voter cancelled said name for vice-president and wrote another under it.

Error
VII, directed to ballot “rollo E,-” is well taken. It should have been
counted as a good vote for the appellant. The ink spots appearing in
the right-hand corner do not make this a marked ballot. The presence of
these spots may have been due to mere accident or the malicious act of
some other person than the voter.

Error VIII, directed to
ballot Exhibit M-S-8, is well taken. This ballot is correct in form and
was not rendered invalid by the fact that the voter saw fit to vote for
the three election inspectors as councilors, though they were not
candidates.

Error XII, directed to ballot Exhibit E-6, is
well taken. The name of the appellee is here written in the space where
members of the provincial board should have been voted for, and the
fact that “presidente” appears written after the name of the appellee
in that space does not make it a good ballot for him as municipal
president.

Error XVII, directed to ballot “S-22,” is well
taken, and the ballot should be counted as a good vote for the
appellant. It is. not rendered invalid by the fact that only one person
is voted for as councilor and the name written at the bottom of the
space for councilors.

It appears that the name commonly used by the appellee is Luis
Espinosa, but several votes were counted for him in which his name was
written “Jose Espinosa.” In this connection we note that in his
certificate of candidacy, Espinosa made it appear that he was also
known by the name “Jose Luis Espinosa” among others, and there is some
proof tending to show that the name “Jose” is sometimes prefixed by his
acquaintances to the surname Espinosa. We maintain the criterion of the
court of origin in holding that these votes were intended for the
appellee, although some ambiguity is introduced into the situation by
the fact that one Jose Espinosa was n candidate in the same election,
and in the same municipality, for the office of representative. We see
no good reason why we should differ here from the conclusion reached by
the inspectors and the trial court.

The result of our revision of the ballots is that the appellant
gains 3 votes and the appellee loses 2, with the consequence that the
appellee still remains ahead by 1,185 votes to 1,178, or with a
plurality of 7 votes.

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

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