GR L 9158; (December, 1913)

EN BANC

G.R. No. L-9158 December 29, 1913

RAMON HONTIVEROS, petitioner-appellee,

vs.
JOSE ALTAVAS, opponent-appellant.

Mercado, Adriatico and Tirona, for appellant.
Bruce, Lawrence, Ross and Block, for appellee.

CARSON, J.:

This is an appeal from a judgment entered in the Court of First Instance of the Province of Capiz in proceedings had on a protested election for the office of governor of that province.

The election was held on the 4th of June, 1912, and the result as announced by the provincial canvassing board gave Altavas, the appellant in these proceedings, a majority of 171 votes, 3,542 being recorded in his favor and 3,371 in favor of Hontiveros, the appellee.lawphil.net

As the result of the recount of the ballots in the contested election proceedings in the Court of First Instance, Hontiveros was adjudged to have secured a majority of 163 votes, the trial judge being of opinion that the ballots which should have been counted in favor of Hontiveros numbered 3,274 and those in favor of Altavas 3,111.

The action of the board of canvassers and of the court below in rejecting or admitting a number of ballots cast in various precincts throughout the province has been drawn in question in the course of this appeal; but holding, as we do, that the trial court erred in rejecting 235 ballots which were cast in the precinct of Dumarao and counted by the canvassing board in favor of Altavas, we have not found it necessary to make specific rulings on the various contentions of counsel, except only in so far as they relate to votes cast in that precinct. Counsel for appellee practically concedes that the case necessarily turns on our ruling as to the 235 marked ballots found in the ballot box from Dumarao, and we have examined the contested ballots cast in the other precincts of the province sufficiently to satisfy ourselves that no changes which we might make in the findings of the trial judge as to them, upon a full review and recount, would affect the final result so as to deprive Altavas of a majority of the total number of the votes cast at the election, after crediting him with the 235 ballots from the Dumarao precinct which were rejected by the court below.

Four hundred and two votes were cast at Dumarao, of which 235 were counted by the board of canvassers in favor of Altavas and 167 in favor of Hontiveros. When the ballot boxes were opened in the court below every ballot cast in favor of Altavas was found to be marked, while not a single ballot cast in favor of Hontiveros bore any mark of any kind. The principal contention throughout these proceedings is as to whether the marks on the votes cast in favor or with their authority, and before they were placed in the ballot box, as contented by Hontiveros; or whether as contended by Altavas, the marks were placed on these ballots without the knowledge or consent of the voters, by some person or persons who sought to invalidate them, and thus secure their rejection on a recount.

After an exhaustive and painstaking review of all the evidence of record, we are of opinion and so hold:

1. That the evidence of record conclusively establishes that the great majority of the marks found on the ballots cast in the precinct of Dumarao were placed on these ballots by some person or persons without the knowledge or consent of the voters who cast them.1awphi1.net

2. That by a clear preponderance of the weight of the evidence it appears that all of these marks were placed on these ballots by some person or persons without the knowledge or consent of the voters who cast them; that they were placed on the ballots after they had been cast and counted by the election judges; that they were placed on the ballots maliciously, for the purpose of invalidating then on a recount; and that they were not intended to serve any purpose as marks of identification of the voters who cast them.

3. That by a clear preponderance of the weight of the evidence it appears that the 235 ballots from the precinct of Dumarao which were rejected on the recount by the court below as marked ballots were lawfully cast in favor of Altavas, the appellant in these proceedings, and were properly counted in his favor by the board of canvassers.

Reserving the right to any member of the court to file hereafter an extended opinion discussing at greater lenght the grounds on which our judgment is based, the judgment of the lower court should be reversed without costs in this instance to either party, and the court below should be directed to enter a new judgment in accordance with the above rulings.

Let judgment be entered reversing the judgment of the court below and directing that court to enter a new judgment wherein the result announced in the former judgment will be changed by counting 235 votes from the Dumarao precinct in favor of Altavas, and wherein provisions will be made for the issuance of the appropriate mandate in conformity with the changed result in the count of votes.

Arellano, C.J. and Torres, J. concur.
Johnson, J., concurs in the result.
Moreland and Trent, JJ., dissent.

Batas Pinas