G.R. No. 30578 , January 28, 1929
ENRIQUE SALVANI, petitioner, vs. Hon. LEONARDO GARDUNO, Judge of First Instance, et al., respondents.

FACTS

After the June 5, 1928, general election, Enrique Salvani was proclaimed Governor of Antique, defeating Mamerto Portillo by nine votes. Portillo filed an election protest, alleging irregularities in several precincts, including Caluya, where he claimed 85 valid ballots for him were rejected. Salvani filed a counter-protest, alleging irregularities in other precincts, including Precinct No. 8 of San Jose, where he claimed 30 valid votes for him were not counted and 32 invalid votes were counted for Portillo. During the protest proceedings, Portillo waived his allegations regarding Caluya to avoid delay, and the court did not open the Caluya ballot boxes. Salvani objected, insisting on their opening. Separately, when the ballot box for San Jose Precinct No. 8 was opened, it was found that the ballots had been destroyed by ants and corrosive substances. Salvani sought to amend his counter-protest to allege that the destruction was criminally orchestrated by Portillo to conceal fraud. As proof, he offered to present 63 voters from that precinct who would waive their privilege and testify that they voted for hima number far exceeding the 37 votes credited to him in the official returns for that precinct. The trial judge refused to admit this voter testimony.

ISSUES:
1. Whether the trial judge committed a grave abuse of discretion in refusing to order the opening of the Caluya ballot boxes after the protestant waived his allegations concerning them.
2. Whether the trial judge erred in refusing to admit the testimony of voters to prove that the official returns from San Jose Precinct No. 8 were fraudulent, after the physical ballots had been destroyed.

RULING

1. On the first issue (Caluya ballot boxes): The petition is DENIED. The court held that the trial judge did not commit a grave abuse of discretion. The opening of ballot boxes not challenged in the protest or counter-protest is discretionary with the court under Section 479 of the Election Law. Since Portillo withdrew his charges against Caluya and Salvani’s counter-protest did not impugn the returns from Caluya, there was no issue requiring the boxes to be opened. The Supreme Court found no abuse of discretion in the judge’s refusal.

2. On the second issue (voter testimony for San Jose Precinct No. 8): The petition is GRANTED. The Supreme Court directed the respondent judge to allow Salvani to amend his counter-protest and to receive the proffered testimony of the voters. The Court abandoned a strict exclusionary rule, reasoning that when the best evidence (the ballots) has been destroyed, the testimony of voters who waive their privilege is admissible not only to rehabilitate the returns (as held in *Valenzuela vs. Carlos*) but also to impeach them. The credibility of such testimony is a matter for the trial court to weigh, but it should not be excluded outright.

DISPOSITION: The writ of mandamus is denied regarding the first cause of action (Caluya boxes) but granted regarding the second cause of action (San Jose Precinct No. 8). The respondent judge is ordered to allow the amendment to the counter-protest and to receive the voter testimony. No costs.

SEPARATE OPINION: Justice Ostrand dissented from the ruling on the second cause of action.