Sarenas v. Generoso

GODDARD, J.:

At the general elections of June 5, 1934, Sebastian T. Generoso and Juan A. Sarenas were candidates for the office of governor of the Province of Davao. The provincial board of canvassers proclaimed the former governor elect and the latter filed a motion of protest in the Court of First Instance of that province. After due hearing that court rendered judgment proclaiming the contestant Juan A. Sarenas governor-elect of that province with a majority of eighty-two votes.

The respondent Sebastian V. Generoso appealed to this court from that judgment. In rejecting and admitting the questioned ballots in this case this court has followed, in so far as possible, certain fairly well established general rules. However, experience has shown that it is difficult to lay down any absolute rule as to what constitutes cause for rejecting a ballot as marked and, therefore, great care has been exercised in rejecting ballots.

Furthermore, the presumption being in favor of the validity of the ballots they should not be rejected unless clear and sufficient reasons justify such action. Having this in mind, in our endeavor to obtain the expression of the voter's will, as shown by each ballot examined, we have been specially liberal in applying the idem sonans rule. The following general rules, relating to the appreciation of ballots, have been applied in this decision in so far as they have been found applicable.

Unless rejected for other reasons ballots containing the following have been held valid: (a) The initial of the first Christian name or its idem sonans and the surname of the candidate. (b) The initial of the first Christian name and the surname of the candidate. (c) The surname of the candidate followed by his initials in their proper sequence, or by one correct initial.

(d) The Christian name and the surname incorrectly written when they have the same or a similar sound to that of those names of the candidate. (e) An erasure of a name when another readable name is written by the voter over the erasure in order to correct his error. (f) The name of a candidate written in its greater part in the space provided for the office for which he is a candidate.

(g) The name of a person written in a space designated for a particular office for which said person is not a candidate. ("Scattering vote.") (h) Names written in lead pencil or ink, in the absence of proof of fraudulent intent. (i) Prefixes "D.", "Don", "Mr.", "Mister"

or their equivalent in the local dialect, "Gov.", "Governor", etc. (j) Flourishes, touches or marks innocently or unconsciously placed on a ballot by the voter in the course of its preparation. (k) Undetached coupons bearing the number of a ballot.

The duty of detaching the coupon is placed by law upon the election officials. (l) The name of a person voted for two or more offices for one of which he is a candidate. (m) The surname alone of a candidate or its idem sonans , if there is no other candidate with that surname.

In case the legality of ballots containing the surname only or the surname and the initial of the second Christian name of a candidate is questioned on the ground that the identity of the candidate is not established it is incumbent upon the one objecting to the counting of such ballots to submit proof to sustain his objection. Ballots have been rejected for the following reasons: (a) Those in which the nicknames of a candidate appear alone even though his certificate of candidacy recites the fact that he is known by such nicknames. (b) Those in which the name appearing in the space for the contested office is illegible.

(c) Those in which the voter has written impertinent words or phrases with the evident intention of marking his ballot for identification. (d) Those in which the wrong initial or initials are written and those in which the initials are not written in proper sequence. (e) Those in which the initials alone are written.

(f) Those in which only the Christian name appears. (g) Those in which two names are written in a space in which only one name should appear. (h) Those in which the name of a candidate claiming such ballots is written in only one space distinct from that intended for the office for which he is a candidate.

In the appellant's first assignment of error he alleges that the court erred in rejecting one hundred and ten ballots upon the ground that he was voted for in said ballots by his initials. It is admitted by the appellee that the court should have rejected only one hundred ballots instead of one hundred and ten. Therefore ten ballots should be and are hereby credited to the respondent-appellant Generoso.

The one hundred ballots were properly rejected. This court has held continuously that initials alone do not sufficiently identify the person voted for. In his second assignment of error the appellant alleges that the court erred in not counting nineteen ballots marked as Exhibits G-79, G-230, G-266, G-303, G-305, G-352, G-386, G-396, G-440, G-496, G-497, G-534, G-575, G-718, G-724, G-802, G-811 and G-897.

Although the appellant alleges that nineteen ballots were improperly rejected he enumerates and discusses only eighteen, as listed above. This assignment of error is sustained as to ballot G-79 which is admissible under the idem sonans rule as the name appearing in this ballot is S.T. Genora; ballot G-440 in which appears G.S. Genirso, as the evidence shows that G stands for "Ginoo" (Mister), the letter S for Sebastian and Genirso is idem sonans with Generoso; ballot G-497 in which appears Si ba Hinoros, as Si ba is the contraction of the name Sebastian and Hinoros is idem sonans with Generoso; ballot G-718 in which appears S.T. Guruso, the latter being idem sonans with Generoso; ballot G-724 in which appears C. Enrso, C being idem sonans with letter S and Enrso idem sonans with Generoso.

These five ballots should be and are hereby creditor to the appellant Generoso. The other thirteen ballots mentioned in this assignment of error were properly rejected by the trial court. In his third assignment of error the appellant alleges that the trial court erred in rejecting forty-one ballots for him in which only his nicknames appear.

The fact that a candidate certifies that he is known by numerous nicknames does not justify a court in admitting and counting ballots upon which any one of such nicknames appears without his family name. This assignment of error is therefore overruled except as to ballot G-472. The word "Neroso"

written in the space for provincial governor is idem sonans with Generoso. In his fourth assignment of error the appellant alleges that the trial court erred in rejecting one hundred and thirty ballots on the ground that the respondent-appellant was voted for in said ballots by his nicknames only. It is true that the appellant filed a certificate in which he made it appear that he is known by over two hundred names, but in spite of this fact the doctrine just announced in commenting on the third assignment of error holds good here.

Therefore the trial court did not err in rejecting the one hundred thirty ballots on the ground above mentioned. Furthermore the doctrine laid down in Adeser vs. Tago(52 Phil., 856), and Namocatcat vs. Adag(52 Phil., 789), still holds good subject to the qualification made in Aure Alegre vs.

Aure Perey(G.R. No. 31017),1 and Bayona vs. Siaotong , G.R. No. 36065 (56 Phil., 831). The rule in Bayona vs. Siaotong , supra , that the nickname must be affixed to the surname of the candidate is applicable even if no other person is known by a particular nickname except the candidate claiming it. In the case of Moral vs. Morales(56 Phil., 833), although the contestant proved that there was no other person known by the nickname of "Bolitog"

in the municipality of Casiguran, Tayabas, this court held that ballots in which that nickname appeared alone were invalid. Notwithstanding the able argument of counsel for the appellant upon this point we do not believe it expedient to modify the above enunciated rule with regard to nicknames. Therefore this assignment of error must be and is hereby overruled.

The appellant in his fifth assignment of error alleges that the trial court erred in not counting thirty-nine ballots in his favor. It appears from the record that the appellant erred in alleging that two of these ballots, Exhibits G-493 and G-494, were not counted in his favor by the trial court. These ballots were correctly admitted in his favor by the trial court as the name appearing in the space for provincial governor is Generoso.

The A before that name was written by a person other than the voter. The ruling of the trial court is sustained as to the following ballots: G-533 (A.B. Generoso), G-549 (A. Naruso), G-552, (A. Garuso), G-555 (A. Garuso) and G-563 (A. Margoso). This assignment of error is sustained as to the following ballots: G-492, G-502, G-505, G-508, G-510, G-511, G-512, G-519 and G-572.

In all of these ballots the surname Generoso is written in the space for provincial governor. It is evident that in ballot G-502 the voter started to spell the name Generoso with J and then corrected it by writing that name properly. The A written before the name Generoso in the other ballots were written by a person other than the voter.

Ballot G-506 should be counted for the appellant as it clearly appears that the voter wrote in the space for provincial governor S. Generoso and that the B superimposed on the S was evidently written by another person; G-507 should be counted for the appellant as it clearly appears that the voter wrote in the space for provincial governor S.T. Generoso and that the B superimposed on the S was evidently written by another person; G-513 should be counted in favor of the appellant as it clearly appears that the voter wrote in the space for provincial governor Sebastian T. Generoso and that the A written before Sebastian was evidently written by another person; G-521 should be counted for the appellant as it clearly appears that the voter wrote in the space for provincial governor S.T. Generoso and that the M before the S and the H superimposed on that letter were written by a person other than the voter; G-532, the voter wrote S.T. Generoso and the letter M superimposed on the S was written by another person; G-523, the voter wrote S.T. Generoso and the letter B and F were superimposed on the letters S and T by another person; G-524, the voter wrote S.T. Generoso and the letter N was superimposed on the S by another person; G-529, the voter wrote S.T. Generoso and the letter M was superimposed on the S by another person; G-530, the voter wrote S.T. Generoso and the letters B and N were superimposed on the letters S and T by another person; G-531, the voter wrote "Sebastian de G so "

and the letter M was written before Sebastian by another person, G so stands for Generoso; G-532, the voter wrote Generoso S.T. and the letter A appearing before Generoso was written by another person; G-536, the voter wrote S.T. Heniroso and the letters A and M were superimposed on the S by another person; G-537, the voter wrote S.T. Generoso and the M appearing before the S was written by another person; G-538, the voter wrote Sebastian Generoso and the letter A appearing before Sebastian was written by another person; G-539, the voter wrote Sebastian T. Generoso and the letter A appearing before the word Sebastian was written by another person; G-540, the voter wrote Sebastian Generoso and the letters M and A appearing before the word Sebastian were written by another person; G-542, the voter wrote S.T. Giniroso and the letters B and M superimposed over the S and T were made by another person; G-543, the voter wrote S.T. Geniros and the letter G, superimposed over the letter S, and the letter M, appearing after the letter T, were written by another person; G-561, the voter wrote s.

te Geniroso and in view of the fact that the above mentioned ballots have been tampered with in the form mentioned we have concluded that the small square, above the letter s and over the word "marca" in the printed instructions of the ballot, was made by a person other than the voter, as said square appears to have been made by a blunter pointed pencil than that use by the voter. In G-569 the voter wrote S.T. Generoso and the square appearing before the letter S was evidently made by another person; G-570, the voter wrote S.T. Generoso, the cross appearing before the letter S and the A superimposed on that letter were evidently made by a different person; G-571, the voter wrote S. Generoso and the letter A superimposed upon the S was written by another person; G-573, the voter wrote S.T. Generoso and the cross appearing before the letter S was made by another person.

As a result of the above the appellant should be and is hereby credited with thirty-two more votes. Under his sixth assignment of error the appellant alleges that the trial court erred in rejecting G-533 twice. This assignment of error is well taken and the appellant should be credited with one more vote.

Under his seventh assignment of error the appellant alleges that the trial court erred in rejecting thirty-six ballots, Exhibits G-763 to G-796, G-798 and G-799, on the ground that they were written by the same hand. The record shows that these ballots were found in the box for valid ballots of precinct No. 1 of the municipal district of Pantukan. They were rejected by the trial court on the ground that they were fraudulent.

In commenting upon these ballots that court said: Cotejadas las unas con las otras detencion, presentan realmente rasgos identicos de caligrafia. Y añadiedose a esto la circunstancia de que en todas y en cada una de ellas aparecen uniformemente votadas las mismas personas para los mismos cargos, la objecion de que son fraudulentas esta bien fundada. The rejection of these thirty-six ballots is not justified upon the grounds stated by the trial court in the absence of conclusive evidence that these ballots are fraudulent as it appears that in that precinct there were fifty-nine illiterate and incapacitated voters.

The appellee, on page 71 of his brief, contends that although there were fifty-nine illiterate and incapacitated voters in that precinct the persons who wrote the ballots and the number written by each one of them are as follows: R.R. Legal . . .

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. 28 Pantaleon Terrado . .

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19 Basilio Cordoba . . .

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. 6 A. Samonte . .

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1 Tobias Amador . . .

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. . 1 C. Artes .

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. 4 Total . .

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