Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-23827 February 28, 1967
SANTIAGO A. SILVERIO, protestant-appellee,
vs.
PEDRO CASTRO (deceased), protestee-appellant.
MISAEL CLAMOR, intervenor-appellant.
Quitain & Quitain and Salonga, Ordoñez Sicat & Associates for protestant appellant.
Jose W. Diokno and Aportadera, Palabrica & Muyco for protestant appellee.
Pedro C. Quitain for intervenor-appellant.
BENGZON, J.P., J.:
The returns of the November 12, 1963 election for Mayor of Cateel municipality, Davao province, per canvass of the Board of Canvassers showed that Pedro Castro received the highest number of votes for said office, 1,769; Santiago Silverio obtained the next highest votes therefor, 1,754; thus giving Castro a plurality of 15 votes. And in due time, Castro was proclaimed elected and assumed the office.
Silverio, on the other hand, filed on November 23, 1963 a protest in the Court of First Instance. A counter protest was filed by Castro.
Subsequently and before hearing of the said election case, Castro died on May 6, 1964. Vice-Mayor Misael Clamor thereupon succeeded to the office of Mayor.
The protest was thereafter heard, starting on July 6, 1964. After hearing, on September 14, 1964, decision was handed down by the trial court, reversing the Board of Canvassers and declaring Silverio winner by seven (7) votes; that is, Silverio was credited with 1,740 votes; Castro, with 1,733 votes.
Appeal was taken therefrom on behalf of protestee Castro (deceased) directly to Us, to raise questions of law. A dispute later arose as to the personality of protestee's counsel to take an appeal, Castro having died. This Court resolved the matter by requiring Vice-Mayor Clamor to intervene, as he did, on the side of appellant (Resolution of July 22, 1965).
Appellant presents for review 119 ballots. For our purposes they shall be discussed under four groups:
FIRST GROUP: SEVENTY-ONE (71) BALLOTS FOR SILVERIO; SPACES FOR SENATORS AND/OR COUNCILORS NOT FILLED OR FILLED ONLY PARTLY; RULED VALID BY CFI.
Said 71 ballots are as follows:
| (a) | 34 ballots under Assg. of Error No. 2: |
Precinct 1
1
1-A
1-B
1-C
Precint 2
2
Precint 5
4-A
4-B
Precint 21
13
13-B
13-C |
Precint 3
A-1 cp
A-6 cp
A-8 cp
A-9 cp
A-10 cp
A-11 cp
A-12 cp
A-13 cp
A-14 cp
A-15 cp
(or 1-H)
A-16 cp
A-17 cp |
A-18 cp
A-19 cp
A-20 cp
A-21 cp
A-22 cp
A-23 cp
Precint 22
H-1 cp
H-2 cp
H-5 cp
H-6 cp
H-7 cp
H-8 cp |
| (b) | 12 ballots under Assg. of Error No. 3: |
Precint 7
6-A
6-B
6-C
6-D
6-J
6-K
6-L |
Precint 8
7
7-A
7-B
7-C
7-D |
| (c) | 10 ballots under Assg. of Error No. 4: |
Precint 12
8-C
8-D
8-E
8-F
8-F |
8-H
8-I
8-J
8-K
8-L
|
| (d) | 15 ballots under Assg. of Error No. 7: |
Precinct 6
5-A
5-B
5-C
5-D
5-E
5-F
5-G |
Precint 7
6-E
6-F
Precint 16
9-A
Precint 20
12-C
12-D |
12-E
12-F
Precint 25
16 |
As to this first group of ballots, the court a quo incurred no error. It properly followed the rule that desistance from completely filling the spaces in the ballot does not render the ballot marked (Gadon vs. Gadon, L-20015, November 30, 1963). For here there admittedly is no evidence aliunde of a purpose clearly discernible upon the face of said ballots.
Summarily of First Group : CFI affirmed.
SECOND GROUP: TWENTY-THREE (23) BALLOTS, SUBDIVIDED INTO (A) FIFTEEN (15) FOR CASTRO, REJECTED BY CFI AS MARKED; and (B) EIGHT (8) FOR SILVER, 10, RULED VALID BY CFI; PREFIXES NICKNAMES AND DESCRIPTIONS OF CANDIDATES ARE INVOLVED.
Subgroup A —Fifteen (15) ballots for Castro rejected by the CFI.1
1. From Precinct 1, ballot A-14. It has the, word "Egg" written before the candidate's name "Castro" in the space for mayor.
2. From Precinct 6, ballot E-3. It has the word "Toli' before the candidate's name "Penanueva" in the space for councilor.
3. From Precinct 16, ballot I. It has the word "Egg" before the name of candidate "Castro" in the space for mayor.
4. From Precinct 16, ballot I-11. It has the name "(Catigbak)" between the candidate's name for councilor, thus: "Consing (Catigbak) Aguilon".
5. From Precinct 18, ballot J-1. It has the word "Pudpud" before the name of "P. de la Cruz" in space for councilor.
6. From Precinct 18, ballot J-5. It has the word "Pudpud" before the name de la Cruz," for councilor.
7. From Precinct 18, ballot J-16. It has the word "Dr." in the space for mayor before the name of candidate "Castro", who is not a doctor.
8. From Precinct 24, ballot O-3. It has the figure "5" before the name "Castro" for mayor.
9. From Precinct 24, ballot 0-7. It has the word "Salokot" before the name of candidate "Castro" in the space for mayor.
10. From Precinct 24, ballot 0-24. The word "Jr." appears after the name "P. Castro" for mayor. Castro is not a Jr. and the word "Jr." is placed far after the name.1äwphï1.ñët
11. From Precinct 24, ballot 0-31. It has the word "Dato" or "Datu" before the name of candidate Sarmiento in the space for governor.
12. From Precinct 24, ballot 0-34. It has "Dr" written before "Castro" in the space for mayor.
13. From Precinct 24, ballot 0-43. It has "Dr" written before the name "Castro" in the space for mayor; and nickname "Ely" appears before the name of candidate "Sarmiento", whose nickname is not Ely, in the space for governor.
14. From Precinct 25, ballot P-4. It has the word "Towang" before the name of candidate "Castro" for mayor.
15. From Precinct 25, ballot P-18. It has "C Vote" appearing before the name "Castro" in the space for mayor.
With the exception of ballot O-31 ("Datu" Sarmiento), all of the above fifteen ballots are indeed filled with identifying marks. The words "Egg", "Toli", "Pudpud", "Salokot," "Towang" and "C Vote" are obviously for purposes of marking the ballots.
So is the word "Dr.", applied to protestee Castro, who is not a doctor, twice in one precinct and once in another. Although Rule 5, See. 149, Rev. Election Code allows the prefix "Dr.", it has been held by Us that it is allowed only if not used as identification marks; where, as herein, it recurs in a pattern or system to mark and identify ballots and votes in different precincts, the court a quo incurs no error in rejecting them (Jimenez vs. Lofranco, L- 21124, Nov. 8, 1963).
The figure "5" in ballot 0-3 is not an accidental stroke for in the same ballot, there appears the figure "7" before the name "Sarmiento" in the space for governor. It is therefore rightly deemed marked.
The placing of "(Catigbak)" in the middle of the name of candidate "Consing Aguilon," although allegedly denoting that to the voter's mind Consing Aguilon is Senator Katigbak's counterpart in Cateel clearly serves to identify said particular ballot, so that the intent to mark can be inferred therefrom.
And the suffix "Jr." as applied to Castro in ballot O-24 is patently used as a means to identify the voter, it being written so far from the name " P. Castro" that the space separating them is longer than the space covered by the name itself. As such it is marked (Rule 9, Sec. 149, Rev. Election Code).
As to the word "Datu" before the name of candidate Sarmiento, however, which appears in but one ballot the same is not clearly a sign for marking, and said ballot should be accepted as valid. As this court ruled in Gadon vs. Gadon, L-20015, November 30, 1960, pursuant to Rule 5 of Section 149, Rev. Election Code, which mentions "Datu" among the prefixes allowed, the use of the prefix "Datu" does not invalidate the ballot where there is no discernible pattern in the use of such prefix which would reveal an intention to mark the ballots.
Subgroup B. Eight (8) ballots for Silverio ruled valid by the CFI:2
1. From Precinct 19, ballot 11-U. It has the word "Conoyaes" [or "Conozaes"] in the space for councilor.
2. From Precinct 10, ballot C-13 cp. It has the nickname "Oto" after the name of candidate "Manligoy" in the space for councilor.
3. From Precinct 11, ballot I-3 cp. It has the word "Atty." before the name of candidate "P. Sanico for councilor.
4. From Precinct 11, ballot 17 cp. This ballot is not discussed by appellant and is not found among the ballots forwarded to Us.
5. From Precinct 14, ballot E-1 cp. It has the nickname "Titoy" before the name "Juanillo" in a vote for councilor.
6. From Precinct 18, ballot G-3 cp. It has the nickname name "Mano" before the name "Silverio" for mayor.
7. From Precinct 23, ballot 14. It has the word "Vice" before the name of candidate "M. Clamor" in the space for vice-mayor.
8. From Precinct 25, ballot 16-C. It has the nickname "Bobby" before the name "Silverio" for mayor.
In the above ballots, the nicknames "Oto" "Titoy" "Mano" and "Bobby" were manifested to be the nicknames of the persons voted for.3 In the absence of clear and convincing proof that these nicknames were used to identify the voters, the rule is that the use of nicknames of the candidates, accompanied by their name or surname, does not annul the ballot (Rule 9, Sec. 149, Rev. Election Code).
As to "Conoyaes" [or "Conozaes"] appearing in the space for councilor, the same is, as the court a quo pointed out, idem sonans for Gonzales, a candidate for councilor. It is a vote for Gonzales, not a mark.
Atty." before "P. Sanico is not a mark, it appearing that P. Sanico is a lawyer.4
And "Vice" before "Clamor" simply describes the office for which he was being voted for, namely, vice-mayor; this alone does not suffice to constitute marking and invalidate the ballot.
All of the eight ballots in this subgroup, therefore, were correctly held valid for candidate Silverio.
Summary of Second Group: CFI affirmed except as to one (1) ballot in subgroup A (ballot 0-31: "Datu" Sarmiento), for Castro, rejected by CFI but held valid by Us.
THIRD GROUP: ELEVEN (11) BALLOTS FOR CASTRO; REJECTED BY CFI UPON CONCLUSION THAT SEVERAL BALLOTS WERE PREPARED BY ONE PERSON.
According to the court a quo, ballots A-1, A-3, and A10 (Precinct 1) were written by one and the same person. and, in support of said conclusion, it stated that they have "the same general appearance or pictorial effect"; although finding that there are differences and variations in them, it ruled that the same are due to the intention of the writer to disguise the writings and make it different from his standard writing.
Following the same principles applied to the above ballots, the court a quo further held that ballots A-4 and A-5 (Precinct 1) were prepared by one person; ballots C-1 and C-3 (Precinct 4), by one person; ballots C-4 and C-6 (Precinct 4), by one person; and ballots C-7 and C-8 (Precinct 4), by one person.
The point to bear in mind is that this involves rules of appreciation of ballots in an election case. And the purpose of election laws is to give effect rather than illustrate the will of the voter. Thus, extreme caution should be observed before any ballot is invalidated and in the appreciation of ballots, doubts are to be resolved in favor of their validity.5
Now the court a quo invalidated the above eleven ballots, as mentioned, upon the principle of general appearance or pictorial effect. Yet the very authority referred to and quoted by said court stated that said general resemblance is not enough to warrant the conclusion that two writings are by the same hand (Appendix, Appellant's brief, 42-43):
In order to reach the conclusion that two writings are by the same hand there must not only be present class characteristics but also individual characteristics or 'dents and scratches', in sufficient quantity to exclude the theory of accidental coincidence; to reach the conclusion that writings are by different hands we may find numerous likenesses in class characteristics but divergences in individual characteristics, or we may find divergences in both, but the divergence must be something more than mere superficial differences. (Osborn's Questioned Documents, p. 244). [Emphasis supplied]
Another eminent authority on the subject, Wilson R. Harrison, on SUSPECT DOCUMENTS, has this to say:
In spite of the fact that the handwriting of any individual is based on a number of master patterns governing letter design, which are present substantially unaltered in all specimens of his writing, some of these specimens may at first sight appear to have little in common. On the other hand, the handwritings of different people may appear to bear a marked resemblance to each other, although, on analysis of the structure, the master patterns can be shown to be quite distinctive and unlikely to be confused. In view of this, the question may well be asked why this should be so, and why the general appearance of a handwriting is little guide to its fundamental structure.
The answer to such questions is simple, and is bound up with the way in which a great many people accomplish the reading process. (p. 307, Emphasis supplied.)
The court a quo, as mentioned earlier, noted differences and variations in the ballots concerned, but attributed them to attempt by the writer to disguise his hand. Applying some principles on the recognition of disguise in handwriting,6 We are of the view that an examination of the ballots in question do not show, beyond the doubts that are to be resolved in favor of their validity in election cases, common authorship as to each respective set.
Says Harrison, op. cit.:
... The rule is simple-whatever features two specimens of handwriting may have in common, they cannot be considered to be of common authorship if they display but a single consistent dissimilarity in any feature which is fundamental to the structure of the handwriting, and whose presence is not capable of reasonable explanation.
(2) Disguised Handwriting Exhibits Less Fluency and Poorer Rhythm than the Normal Hand
By definition, it follows that it is the normal hand in which any writer had become most practiced and in which he had the greatest opportunity to become fluent; there cannot be anything like the same fluency and rhythm associated with a hand which is written deliberately in any style to which the writer has not become accustomed. A handwriting can exhibit its best rhythm only when it has been executed to a great part as a reflex movement, without conscious thought having to be given to the details of its structure. ....
(7) Disguise is Rarely Consistent.
With the obvious exception of the use of the unaccustomed hand, few forms of disguise are consistently retained throughout the whole of an extended passage of handwriting. Apart from the relaxation of the disguise, which is usually characteristic of the latter part of a passage and which is due to the writer becoming tired, with the consequent loss of concentration, certain portions of a disguised document can be counted on as having been much less thoroughly disguised than others. (pp. 343, 352 and 369).
In ballots A-1, A-3 and A-10, the capital "R's", "P's" and "B's" are different in every ballot but consistently the same within each of them. The fundamental structure of the small letter "t" (E.g., the "t" in Castro) are different in all three ballots, again consistently the same within each ballot. Furthermore, the writings are all done with fluency and rhythm, which would not be the case if they were that of one person trying to disguise his handwriting.
In ballots A-4 and A-5 the capital "R's" are very different in the two ballots but the same within each ballot; and the capital "P" — a letter structurally related to capital "R" — partakes of said difference, that is, it conforms to the structure of the capital "R" as often as it appears in the respective ballots. Said internal consistency points against the introduction of disguise. For as Harrison further observed:
... From this it appears that any developed handwriting in its normal state can be expected to exhibit a marked degree of internal consistency. This is of fundamental importance when considering the problem posed by disguise handwriting, for if, implies that if the internal consistency of the handwriting is to be preserved, any appreciable alteration in the design of one letter must be accompanied by a corresponding change in the design of structurally related letters. This will impose a severe restriction on both the nature and the extent of any disguise, which can be introduced into the letter designs without its presence becoming patent. (p. 359)
Similarly, there are in these two ballots fluency and rhythm, favoring the view that their differences — conceded by the court a quo — are due to differences in authorship rather than disguise.
Anent ballots C-1 and C-3, the same observation as to capital letter "P" and "R" previously made are also applicable herein.
Regarding ballots C-4 and C-6, the "ñ's" are consistently different in the two ballots but uniform within each; the final strokes in ending letters such as "g" and "y" are different; and again the fluency that appears in both writings bears against presence of disguise.
Finally, in ballots C-7 and C-8 the small letter "g" is structurally different, in the loop, which difference is maintained throughout in the respective ballot (Cf. "Bendigo Aguilon; "Ziga" and "Liwag"). This singular consistent dissimilarity, as above-stated, practically rules out disguise, in the absence of reasonable explanation.
In the foregoing eleven ballots, therefore, the court a quo erred in not applying the rule of liberality in the appreciation of the ballots, and in arriving at the conclusion that said ballots are invalid upon the unacceptable premise that general appearance or pictorial effect is a reliable index of handwriting identity. Said error, involving as it does a conclusion drawn from undisputed facts (the appearance of the ballots) as well as the applicability of a fundamental rule in appreciation of ballots, is one of law and thus reversible herein.
Summary of Third Group: Reverse CFI as to all eleven (11) ballots.
FOURTH GROUP: FOURTEEN (14) BALLOTS: NON-CANDIDATES, CORRECTIONS AND ERASURES, OTHER FEATURES.
A. Five (5) ballots with non-candidates voted for, or with a candidate's name in space for office not run for by him, ruled by CFI valid for Silverio.
1. From Precinct 3, ballot A-cp. It has "Diocno" in space for councilor.
2. From Precinct 3, ballot A-2 cp. It has "P. Sanico in space for senator.
3. From Precinct 5, ballot 4-D .7 It has "Porras" in space for senator.
4. From Precinct 8, ballot 7-H. It has "Palma Hill" [Gil] in space for senator.
5. From Precinct 24, ballot 15-C. It has "Doterte" in space for senator.
As ruled by this Court in Tajanlangit vs. Cazeñas L-18894, June 30, 1962, a vote for a non-candidate of the respective office is to be deemed merely a stray vote and not a sign of marking in the absence, as herein, of evidence aliunde to the contrary. (Cf., also, Rule 13, See. 149, Rev. Election Code).
B. Five (5) ballots with corrections or erasures; ruled by CFI valid for Silverio.
1. From Precinct 3, ballot A-5 cp. "Silverio" in space for councilor is crossed out by two horizontal lines drawn across the name; "Silverio" appears, without cancellation, in the proper space for mayor.
2. From Precinct 8, ballot 7-E. "M. Clamor in space for councilor is cancelled by horizontal lines drawn across it, "M. Clamor" appears, uncancelled, in proper space for vice-mayor.
3. From Precinct 16, ballot 9-E. In the space for councilor, preceding the name "Ravelo" are heavy circular strokes cancelling initials.
4. From Precinct 19, ballot 11-S. "Santiago Silverio" in the space for governor is crossed out by horizontal lines and several "x's": above it is written "Sarmiento".
5. From Precinct 19, ballot 11-T. In the space for governor, "Duterte" is cancelled by two "x's" but again after it is written "Duterty".
The above erasures and cancellation are plainly corrections of errors, not evidencing any purpose of marking. Neither is there evidence aliunde to establish a design to mark thereby. The court a quo rightly considered these ballots valid (Rule 4, Sec. 149, Rev. Election Code; Protacio vs. De Leon, L-21135, Nov. 8, 1963).
C. Four (4) ballots with other features.
1. From Precinct 4, ballot C-10. It is for Castro, rejected by the CFI as marked because all the names voted for therein are in very large block letters.
An examination of said ballot reveals nothing irregular to constitute marking; the size of the writing — maintained uniformly throughout — simply conforms to the space provided for in the ballot itself. This differs from the case in Tajanlangit vs. Cazeñas, L-18894, June 30, 1962, where only two names were written in extraordinarily big printed letters so that they stood out prominently compared with the rest of the names written in the ballot.
In the present case, the writing could well be the voter's habitual one, there being no evidence to show otherwise. Said ballot was erroneously deemed marked.
2. From Precinct 7, ballot 6-G. In the space for mayor, it has a small "x" written to the left of "Silverio" and another small "x" written after said name, towards the end of the line. Said ballot was held valid by the CFI.
The placement of said two "x's", viewing the ballot as a whole, which is otherwise neat and filled only with few names, indicates upon its face a clear intent to mark. Said ballot should have been rejected as invalid.
3. From Precinct 16, ballot 9. It has the letter "x" (apparently in capital) before the name "Penanueva" for councilor. Said ballot was held valid by CFI for Silverio; and We agree, since the letter "x" as used was meant only to be an initial, as shown by the use of initials throughout the other seven names voted for councilor.
4. From Precinct 18, ballot 10-E. It has votes written in ordinary script and others in block letters. It was held valid for Silverio by the CFI. No error was committed herein. Rule 18, Sec. 149, Rev. Election Code allows such variation in writing in the absence of evidence aliunde to prove design thereby to identify the voter, and there is none herein (Sarmiento vs. Quemado 1,18027, June 29, 1962).
Summary of Fourth Group: Reverse CFI as to two (2) ballots, C-10 and 6-G.
In view of the foregoing, therefore, We find that the court a quo erred in rejecting the following thirteen (13) ballots for Castro, which We find valid:
Second Group.
1. Precinct 24, Ballot 0-31 ("Datu" Sarmiento)
Third Group — (Re question of common authorship)
| 2. Precinct 1, Ballot A-1 |
8. Precinct 4, Ballot C-3 |
| 3. Precinct 1, Ballot A-3 | 9. Precinct 4, Ballot C-4 |
| 4. Precinct 1, Ballot A-10 | 10. Precinct 4, Ballot C-6 |
| 5. Precinct 1, Ballot A-4 | 11. Precinct 4, Ballot C-7 |
| 6. Precinct 1, Ballot A-5 | 12. Precinct 4, Ballot C-8 |
| 7. Precinct 4, Ballot C-1 |
Fourth Group. —
13. Precinct 4, Ballot C-10 (large letters) and further erred in accepting as valid one (1) ballot for Silverio, which We find to be marked and should thus have been rejected:
1. Precinct 7, Ballot 6-G ("x Silverio x").
Adding, therefore, thirteen (13) votes to Castro and deducting one vote from Silverio, We have:
| CFI Finding | As
Reviewed | Final
Counting by Us |
| Silverio | 1,740 | — | 1 | == | 1,739 |
|
| Castro | 1,738 | + | 13 | == | 1,746 |
so that Castro emerges as final winner by a plurality of seven (7) votes over Silverio.
Wherefore, the judgment appealed from is hereby reversed and protestee Castro, whose interest is succeeded to and represented herein by intervenor-appellant Clamor, is declared winner by a plurality of seven (7) votes in the election of mayor of Cateel, Davao on November 12, 1963. No costs. So ordered.
Concepcion, C.J., Reyes, J.B.L., Dizon, Regala, Makalintal, Zaldivar, Sanchez and Castro, JJ., concur.
Footnotes
1All discussed under Assignment of Error No. 5.
2The first six ballots are treated under Assignment of Error No. 6; the other two under Assignment of Error No. 7.
3Tsn., pp. 645, 676-677 and 716.
4Tsn., p. 735.
5Amurao vs. Calangi, L-12631, Aug., 22, 1958; Pangontao vs. Alunan, L-18926, Nov. 30, 1962.
6See Harrison, SUSPECT DOCUMENTS, pp. 350-372.
7Based on allegation because ballot not forwarded to Us.
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