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EN BANC

G.R. No. L-46920 December 2, 1939

PABLO L. TORRES, Petitioner, vs. ESTEBAN MAYO, Respondent.

Sabido & Laurel, Jr., for petitioner.
Claro M. Recto for respondent.

VILLA-REAL, J.: chanrobles virtual law library

In the general elections held on December 14, 1937, the herein petitioner, Pablo L. Torres, and the herein respondent, Esteban Mayo, were candidates for the office of mayor of the municipality of Lipa, Province of Batangas. At the conclusions of the voting after the canvassing of all the votes cast in all the election precincts of the said municipality by the municipal board of canvassers, said board declared that Torres obtained a total of 4,352 votes and Mayo, 4,345 votes, and proclaimed the former mayor-elect of the municipality of Lipa, with a plurality of seven (7) votes.chanroblesvirtualawlibrary chanrobles virtual law library

As Esteban Mayo did not agree with the result, he filed timely and in due form the corresponding written protest with the Court of First Instance of Batangas. After the proper proceedings and the taking of evidence, said court rendered, on August 10, 1938, a decision declaring the therein protestee and herein petitioner, Pablo L. Torres, mayor-elect of said municipality of Lipa with 4,377 votes, or with a plurality of thirty-one votes over the therein protestant and herein respondent, Esteban Mayo, to whom 4,346 votes were adjudicated.chanroblesvirtualawlibrary chanrobles virtual law library

From the foregoing decision, Esteban Mayo took an appeal to the Court of Appeals, his appeal being docketed as CA-G. R. No. 4034.chanroblesvirtualawlibrary chanrobles virtual law library

On August 1,1939, the Third Division of the Court of Appeals rendered a decision, which, reversing that of the Court of First Instance of Batangas declared the therein protestant and appellant and herein respondent, Esteban Mayo, mayor-elect of the said municipality of Lipa with a plurality of two (2) votes inasmuch as he obtained a total of 4,368 votes against 4,366 votes for the therein protestee and appellee and herein petitioner, Pablo L. Torres.chanroblesvirtualawlibrary chanrobles virtual law library

On August 26, 1939, the herein petitioner filed a motion wherein he prayed for the reconsideration of the afore-mentioned decision of the Third Division of the Court of Appeals on the ground that the adjudication of some ballots in favor of the respondent and the rejection of others which had been adjudicated to said petitioner by the Court of First Instance of Batangas, were contrary to law and to the rules established by this Court on elections matters.chanroblesvirtualawlibrary chanrobles virtual law library

Upon the denial of said motion, the petitioner now comes to this court on appeal by way of a petition for certiorari.chanroblesvirtualawlibrary chanrobles virtual law library

Examining the ballots whose admission or rejection by the Court of Appeals is the subject of assignments of error, we find the following:chanrobles virtual law library

The ballot Exhibit T-162, the petitioner claims, alleging that it contains a vote cast in his favor which the Court of Appeals has held invalid and rejected, for the reason that "G. jorres" appears written on the space thereof for the office of mayor, should be admitted, because the letter "G" may stand for the Tagalog salutation "Guinoo", which is equivalent to "Sr." in Spanish (Cailles vs. Gomez, 42 Phil., 428).chanroblesvirtualawlibrary chanrobles virtual law library

The ballot Exhibit M-133 which the respondent claims for himself as containing a vote in his favor and in which there appears written on the last for the votes for councilors the name "Concordio Robles", which is neither the name nor surname of any candidate for councilor, and which ballot the Court of Appeals admitted, considering the name "Concordio Robles", as a scattered vote, is good; and the said court was correct in admitting it, inasmuch as, according to section 464 of the Election Law as it has been amended by Acts Nos. 3210 and 3387, when a name not belonging to any candidate appears written, the ballot will not be annulled, but will be considered as a scattering vote. (Salak vs. Espinosa, 53 Phil., 162; Aviado vs. Talens, 52 Phil., 665; Termanoy vs. Logroño, G.R. No. 36501 [March 17, 1932], unpublished; Namocatcat vs. Adag, 52 Phil., 789; Cailles vs. Gomez, 42 Phil., 552 Valenzuela vs. Carlos, 42 Phil., 482).chanroblesvirtualawlibrary chanrobles virtual law library

The ballot Exhibit T-217, claimed by the petitioner and rejected by the Court of Appeals on the belief that it was signed by the voter named "P. Rongkillo" or countermarked with that name which the voter wrote below the last space for councilor, after filling the eight spaces for councilors, is admissible, since it appears that "P. Rongkillo" is the name of a candidate for councilor; and the Court of Appeals erred in considering said name as that of the voter who prepared the ballot. The name, therefore, does not constitute a violation of the secrecy of suffrage. The inclusion in a ballot of the name of a candidate in excess of the number of offices fixed by law, does not render that ballot void, but it shall be considered as a scattering vote. The ballot Exhibit T-217 should, therefore, be admitted as a vote in favor of the petitioner.chanroblesvirtualawlibrary chanrobles virtual law library

The ballot Exhibit M-12, which is claimed by the respondent and which the Court of Appeals admitted because the words "Gone. Res" appearing on the space for the office of councilor had been written by a person other than the voter, is valid and its admission is proper.chanroblesvirtualawlibrary chanrobles virtual law library

The ballot Exhibit M-134, which is claimed by the respondent and which the Court of Appeals admitted for the reason that it did not believe that the words "Bo Kopino Sayao", written on the space for councilor, constitute signs or marks, inasmuch as in its opinion they are idem sonans with "Rufino Sayas", the name of one of the candidates for that office, is properly admitted.chanroblesvirtualawlibrary chanrobles virtual law library

With reference to the ballot Exhibit T-180 of the petitioner, which the Court of Appeals rejected as marked with the word "cab", written on the last space for the office of mayor, after the name of Loreto Macuha, said word does not in itself constitute a sign, for, Loreto Macuha not having been a candidate for councilor, the writing of said name was sufficient to mark the ballot without the necessity of adding the word "cab", if that had been the voter's intention, and because "cab" could have been the abbreviation of "cabeza", a very usual form of address in the barrios. The name of Loreto Macuha may, therefore, be considered as a scattering vote which does not render said ballot invalid, and must, accordingly, be admitted. (Authorities supra.)chanrobles virtual law library

In regard to the ballot Exhibit M-16, which the respondent claims as a vote in his favor and which the Court of Appeals held valid and admissible, we cannot consider it, inasmuch as the question raised by the petitioner with respect thereto is one of fact.chanroblesvirtualawlibrary chanrobles virtual law library

The ballots Exhibits M-160 and M-99, which are claimed by the respondent and which the Court of Appeals admitted for the reason that, in its opinion, the words "maximo kalao", which appear on the second space for councilor on Exhibit "M-160", and the only name "macemo kalao", which appears on one of the spaces for councilor on Exhibit M-99, show the elector's intention to vote for Moises Kalaw, the name of one of the candidates for the office of mayor, and do not constitute marks, must be admitted as valid; not because they reveal the elector's intention to vote for Moises Kalaw, but because of the fact that, as the assemblyman, Hon. Maximo Kalaw, whose name is very hard to confuse with that of Moises Kalaw, is well-known in the province of Batangas, the unschooled elector might have wanted said Maximo Kalaw for councilor. Accordingly, the votes cast in favor of the latter must be considered as scattering ones, and the admission of the ballots in favor of the respondent is proper.chanroblesvirtualawlibrary chanrobles virtual law library

The ballot Exhibit T-14