G.R. No. 31636. August 26, 1929
SATURNINO GALLARDO, PETITIONER AND APPELLANT, VS. ELIAS ALDANA, RESPONDENT AND APPELLEE.
STREET, J.:
judgment of the Court of First Instance of the Province of Rizal, in an
election contest, in which it was declared that Elias Aldana, the
incumbent of the office of municipal president of the municipality of
Las Piñas, Rizal, had been rightfully elected to office, and the motion
of contest was dismissed, with costs and incidental expenses against
the contestants.
In the court of origin this contest involved the entire tale of
municipal offices of Las Piñas, but under the existing law only the
municipal president had a right to appeal to this court, with the
result that we are here concerned only with the office of municipal
president of the municipality.
According to the official returns the contestant Saturnino Gallardo
received 364 votes, while the respondent Elias Aldana received 431
votes, with the consequence that the latter was declared elected and
was inducted into office. Upon protest filed by the contestant, and
after a protracted and attentive trial, his Honor, the trial judge,
after a new revision of all the ballots in the three precincts of the
municipality, adjudicated 432 votes to the respondent Aldana and 382
votes to the contestant Gallardo, with the result that the respondent
obtained a majority of 50 votes, instead of the 67 votes conceded to
him in the election returns and by the findings of the municipal
canvassers.
In the motion of protest various frauds were alleged, consisting of
the alleged incorrect appreciation and admission of ballots by the
inspectors of the election, the subtraction, or loss, of ballots, the
illegal construction of the election booths, and the improper
preparation of ballots used by illiterate persons, with qualification
of education, by persons who had not taken the required oath. In the
course of the lengthy trial some of these charges were abandoned. Upon
others the trial court found contrary to the contention of the
contestants and to these findings no assignments of error have been
taken. As the case is presented in this court the assignments of error
of the appellant are mostly directed to the admissibility of ballots in
the preparation of which the voters are alleged to have received
assistance without the formalities prescribed by law.
In this connection it is claimed that one Florentino Pallera
prepared some 26 ballots for the straight Nacionalista ticket, to which
the contestee belongs, and which were voted by as many voters, while
only 14 affidavits were found in the ballot box showing that he had
taken oath to assist in the preparation of ballots as required by
section 453 of the Election Law. Giving credit for these 14 ballots, as
well as for his own ballot, there remain 11 ballots prepared by him as
to which there are no corresponding affidavits made by him as voter of
confidence to make out ballots for the voters. Upon this it is insisted
that 11 ballots should be deducted from the votes conceded by the
canvassers to the contestee Aldana. The same contention is made with
respect to 11 ballots alleged to have been improperly filled out by
Benjamin Cristobal, without his having taken the oath; as to 6 ballots
similarly prepared by Sixto Tolentino; as to 6 ballots similarly
prepared by Baltazar Quilatan, and 38 other ballots similarly prepared
by unidentified hands. All of the ballots above-mentioned pertain to
precinct No. 1; and the identity of the hands preparing the several
groups of ballots to which attention has been directed is rested upon
the visual appearance of the ballots, assisted by the testimony of
Doctor Del Rosario who, as a handwriting expert, testified that the
different groups mentioned appear to be in the same hand for each group.
In addition to the foregoing it is claimed that four of the ballots
found in the ballot box of the first precinct had been irregularly or
unlawfully prepared by Jose Timbang, chief of the municipal police of
Las Piñas and two likewise prepared by Juan del Rosario, municipal
treasurer of Las Piñas, all without affidavit. As the chief of police
and municipal treasurer are prohibited by law from taking part in the
conduct of elections, it is insisted that the 6 ballots mentioned
should be deducted from the votes of the contestee even apart from the
want of affidavit on the part of the voter requiring assistance. In all
the votes thus challenged from the first precinct amount to 75.
On similar grounds 37 votes are challenged in the second precinct, and 31 votes from the third precinct.
Errors Nos. 1, 3, and 5 all raise the same general question, namely,
whether votes can be deducted in a mass, or an election declared
invalid by reason of assistance given to voters in the preparation of
ballots without the corresponding oath having been made out as required
in section 453 of the Election Law. It will be observed that the
records of the election, taken from the ballot box, contain a number of
affidavits made by electors chosen to assist illiterate voters desirous
of aid, or as required by law. The votes which are challenged represent
excess ballots alleged to have been improperly prepared by persons
other than the voter; and as already stated the proof of the giving of
such assistance rests chiefly on the visual similarity of the
handwriting within the different groups of challenged ballots.
In the appealed decision the trial judge said that the handwriting
expert appeared to him to have erred in his appreciation of the
handwriting in which various ballots in the different groups are
written. This observation is probably true, but an inspection of the
ballots shows, we think, that the expert was in the main correct; and
for the purposes of this decision we must assume that in each of the
three precincts voters received aid in the writing of their ballots
without the affidavits of the helpers having been reduced to writing
as required by law.
The main question to be decided in the case, then, is this: Can
ballots cast by illiterate voters be thrown out because their ballots
were written by helpers without the corresponding oath having been
administered and written affidavit preserved? Upon this point this
court has lately spoken in the case of Olano vs. Tibayan (p. 168, ante), wherein the court, through Justice Villa-Real, said:
“As to the admissibility of the 35 ballots in question the evidence
shows that they were found in the valid-ballot box, counted for and
adjudicated to the protestant-appellant, Vicente Olano, by the board of
inspectors. Their legality has not been attacked by the
protestee-appellee, Bernardino Tibayan, either in his answer to the
protest motion or during the trial of the case in the court below. It
has not been proven that their insertion in said box was fraudulent nor
that their preparation was part of a scheme to thwart the free
expression of the voters’ will. The mere fact that each group of
ballots appears to be written by one man is not, in itself, sufficient
to destroy the presumption of their legality, arising from their being
found in the valid-ballot box in which they were deposited in the
presence of the inspectors or watchers for the contending candidates.
It might be that the voters who cast their votes were incapacitated,
and had been assisted in the preparation of their ballots by two
unauthorized persons in the polling-place, but this fact alone is not
enough to invalidate the aforementioned 35 ballots, when it does not
appear that such irregularity was part of a scheme devised to interfere
with the right of suffrage. (Valenzuela vs. Carlos and Lopez de Jesus, 42 Phil., 428; Cailles vs. Gomez and Barbaza, 42 Phil., 496.)”
It is true that the passage quoted, and similar pronouncements of
the court, recognize the propriety of deducting votes where voters have
been unlawfully assisted in the preparation of their ballots provided
it can be shown that the irregularity was part of a general scheme to
defraud the electorate; and we have studied this record with some
concern to ascertain whether the proof would justify the finding that
the irregularity mentioned was part of a conspiracy on the part of the
contestee and his associates on the Nacionalista ticket to override
opposition and defeat the will of the voters.
Upon this point a majority of the members of this court are unable
to declare that the finding of the trial court and its refusal to
disturb the election was incorrect. The proof does not enable us to see
clearly how the fraud, if any was committed, was accomplished. It is
possible that a fraud was in fact perpetrated by the use of a few
ballots as shuttles (lanzaderas) by which device, as is well
known, the ballots of voters who are not skilled in the art of writing
or whose fidelity to party is in doubt, may be illegally written out
for them by others. Again, a fraud could have been accomplished by the
posting of those who were intended to give illegal assistance in booths
next to those occupied by the voters to be assisted. But the proof does
not support a finding that either of these methods was used. We are
therefore compelled to adhere to the theory, apparently adopted in the
appellant’s brief, that the irregularity consisted in the fact that
help was extended to illiterate voters without the necessary oath
having been taken by the helper. The case therefore falls under the
doctrine stated in the passage quoted above from Olano vs. Tibayan.
We are therefore constrained to hold that the votes challenged upon
the ground above stated should not be deducted from the votes of the
contestee. It is possible that the court erred in not counting for the
contestant the 4 votes (error No. 4) which had, for trifling defects,
been placed in the box of spoiled ballots. But, as the trial judge
observed, these 4 votes, as well as 2 others challenged under error No.
2, could not affect the result. No opinion is therefore passed upon the
propriety of the action taken with respect to these votes, it being
evident that the failure to sustain the major contention for the
appellant’s case is fatal to the success of the contestant.
The judgment appealed from will be affirmed, and it is so ordered, with costs of this instance against the appellant.
Avanceña, C. J., Johnson, Villamor, Romualdez, and Villa-Real, JJ., concur.
DISSENTING
JOHNS, J.:
Fraud is apparent and for such reason the election should be
declared void and another election ordered. For such reason I dissent.