[ G.R. No. 43719. December 21, 1935 ] 62 Phil. 689
[ G.R. No. 43719. December 21, 1935 ]
AURELIO CECILIO, PETITIONER AND APPELLEE, VS. JACINTO TOMACRUZ, RESPONDENT AND APPELLANT. D E C I S I O N
IMPERIAL, J.:
This is an appeal taken by the respondent from the judgment of the Court of First Instance of Nueva Ecija, declaring that the petitioner obtained a plurality of 133 votes over him, and that, consequently, the said petitioner was elected legally to the office of governor of the said province. In the general elections of June 5, 1934, in the Province of Nueva Ecija, the rival candidates for the office of provincial governor were the petitioner Aurelio Cecilio, the respondent Jacinto Tomacruz, Armesto Ramoso and Felino Cajucom. On June 27 of the same year, the provincial board, acting as a board of canvassers, announced that Tomacruz had obtained 14,933 votes for governor and Cecilio 14,279 votes, and proclaimed the former governor elect of the province with a plurality of 654 votes. The other candidates received less number of votes which need not be stated, Aurelio Cecilio contested the election of Jacinto Tomacruz, alleging in his protest irregularities committed by the election officers in several precincts. Jacinto Tomacruz answered the protest and interposed a counter-protest, likewise alleging irregularities and frauds committed in various precincts by election officers and other persons who intervened in the counting of the ballots. The court appointed commissioners who proceeded to open the ballot boxes and to count the ballots, and, after the latter’s report was submitted, entered judgment declaring that Aurelio Cecilio obtained 15,452 votes for governor and Jacinto Tomacruz 15,319 votes and proclaiming the former legally elected to the office of provincial governor with a plurality of 133 votes. The respondent-appellant ascribes to the appealed decision twenty-eight errors hereafter to be taken up separately. The first assigned error takes in various points, the first among which having reference to precinct No. 4 of Bongabong. In this precinct, the appellant alleges, the petitioner-appellee obtained 81 votes for governor and the court gave him only 41, or minus 40 votes for him. The appellee concedes the error assigned. Consequently, the appellee is entitled to 40 more votes. The next point refers to precinct No. 4 of Cabiao. The appellant argues that the court adjudicated to him only 74 votes for governor, whereas he had in fact obtained 86. The appellee likewise acknowledges the error. Hence, the appellant is entitled to 12 additional votes. The next point relates to precinct No. 6 of Cuyapo. In this precinct, the appellant contends, he obtained 74 votes for governor and the court adjudicated to him billy 70. The appellee admits the error. The appellant is, therefore, entitled to. 4 more votes in this precinct. The next point bears on precinct No. 8 of Gapan. The appellant claims 1 additional vote which the court failed to adjudicate to him. The appellee concedes the error. The appellant has, therefore, another vote in this precinct. In precinct No. 6 of Guimba, the court gave the appellant 66 votes for governor, whereas he received 67 therein; the appellant claims the discrepancy of 1 vote. The appellee admits this is an error. The appellant should, therefore, be awarded 1 vote in this precinct. In precinct No. 10 of Guimba the appellant assigns another error beneficial to the appellee. The latter received 119 votes for governor, but the court adjudicated to him only 116. The appellee should receive in this precinct 3 additional votes. In precinct No. 11 of Guimba, the appellant obtained 38 votes for governor, but the court only gave him 37; he claims the difference of 1 vote. The appellee admits the error, wherefore the appellant is entitled to the additional vote. In precinct No. 12 of Guimba the appellant seeks to obtain an additional vote, because he obtained 114 therein for governor but the court gave him only 113. The appellee acknowledges the error, and the appellant is, consequently, entitled to 1 additional vote. In precinct No. 1 of Laur, the appellant again claims another vote which was not adjudicated to him by the court. He received 136, but the court credited him with only 135. The appellee also accepts the error. The appellant has 1 more vote in this precinct. In precinct No. 4 of Laur the court adjudicated to the appellant only 123 votes for governor, whereas he had obtained 124. The appellant lays claim to 1 more vote in this precinct, and the appellee is agreeable thereto, having admitted the error. Another vote for the appellant. In precinct No. I of Peñaranda, the appellant again demands another vote, because he received 56 and the court credited him with only 55. In this the appellee concurs and admits the error. The appellant has another vote ifi his favor in this precinct, The appellant obtained 49 votes for governor in precinct No. 6 of San Jose, but the court gave him 46 only. The appellee admits the error, and the appellant should receive 3 more votes in this precinct. The appellant claims an additional vote in precinct No. 7 of Cuyapo. He obtained 48 votes for governor, but the court gave him 47 only. The appellee admits the error, and the appellant should be given another vote. Agreeable to the foregoing, the appellant should receive 27 more votes and the appellee 43. According to the table attached as an appendix to the decision of the court, the appellant received a total of 4,876 votes and the appellee a total of 4,309, in the contested and counter-contested precincts. Giving each of them the votes which they obtained in the precincts just taken up and covered by the first assigned error, it appears that the appellant obtained 4,903 votes and the appellee 4,352, or a plurality of 551 votes in favor of the former. The next point in the first assigned error bears on the error committed in the table showing the votes obtained by the parties in the uncontested nor counter-contested precincts, in considering precincts 4, 6, 7 and 8 of the municipality of Cuyapo. The protest covers these four precincts, hence, the votes adjudicated to the parties should not have been counted or included in the table of uncontested nor counter-contested precincts. In this table the appellant was given 216 votes and the appellee 277 votes in these four precincts. All of them should be deducted from the votes Which each party has obtained in this table of precincts which have neither been contested nor countercontested. The last point of the first assigned error has reference to precinct No. 4 of San Isidro. According to the appellant, he received 171 votes as shown by the certificate of proclamation, Exhibit UU, and the statement of election, Exhibit SS-142, but the court adjudicated to him 121 votes, only. After the court rendered its decision, the attorneys for the appellee presented a motion for reconsideration stating, among other things, that the court had not committed any error in adjudicating to the appellant 121 votes, instead of 171, in precinct No. 4 of San Isidro, because the statement of election, Exhibit SS-142 had been falsified as to the number of votes received by the appellant and that the falsification was verified by the copies of the statement which had been forwarded to the municipal treasurer of San Isidro and to the Department of the Interior, certified copies of which were attached as Exhibits AAAA and AAAA-1, respectively. The records show that this petition of counsel for the appellee was not acted upon by the court and as a result the papers attached thereto were not admitted and do not form a part of the evidence. Be that as it may, we hold that the court did not err in adjudicating only 121 votes to the appellant in this precinct, because an examination of Exhibit SS-142 shows clearly that the number of votes was in fact changed without the alteration having been initialed by any of the election officers. It is plainly apparent that the words “one hundred twenty” were originally written therein, and that later, the word “twenty’ was changed to “seventy” and the word “one” added thereto in black ink, notwithstanding the fact that the original words were written in green ink. Presumably the court adjudicated 121 votes to the appellant because this is the number of votes stated in the certificate of the Department of the Interior taken from the copy of the statement transmitted to said office. In view of these discrepancies, we prefer to sustain the action of the court, and to hold that in this precinct the appellant obtained 121 votes for governor, representing 1 vote more than that originally appearing in Exhibit SS-142. According to the table of the precincts which have neither been contested nor counter-contested of the decision of the court, deducting from each of the parties the votes received in precincts 4, 6, 7 and 8 of Cuyapo, the appellant obtained 10,227 votes and the appellee 10,866 adding to each of them the votes received in the contested and counter-contested precincts, it appears that the appellant obtained 15,130 and the appellee 15,218, that is, a difference or plurality of 88 votes in favor of the appellee. This result does not tally with that set out on page 15 of the appellant’s brief, wherein it appears that he gives the appellee a plurality of only 27 votes. In his answer filed on July 30, 1934, the appellant, as protestee, interposed a counter-protest against the election of the appellee, alleging, among other irregularities, that in precincts 1 and 7 of the municipality of Talavera the election officers did not count about 20 votes in his favor but instead counted the same number of votes in favor of the appellee, which ballots were marked and, therefore, invalid. On September 14 of the same year, the appellee filed a motion praying that he be allowed to amend his protest so as to adjudicate to him the valid votes which he had obtained in the precincts which were not included in the protest and to count in his favor the votes in 36 ballots which he received in precincts 1 and 7 of Talavera which were not given to him by the election officers. The appellant vigorously objected to the petition on the ground that the amendment to the protest came too late and outside of the statutory period. The court granted1 the petition and adjudicated to the appellee the valid votes obtained by him in said precincts. The admission of the amendment is questioned by the appellant in his second assigned error. He contends that the Election Law does not permit such amendment if filed beyond the period fixed for the presentation of the contest. We hold that the error assigned is untenable. Section 481 of the Election Law, as subsequently amended by Act No. 3387, provides that the contestant shall reply to the allegations of the countercontest within ten days after notification. It is true that appellee’s reply, in the form of an amendment to the contest, was filed after the expiration of ten days, but as the trial was still pending and as the same precincts have been counter-contested, we rule that the court did not exceed its discretion in accepting the reply in the form of an amendment to the contest. We have held in several cases that election contests submitted to the courts affect the public interest, and that when the ballot boxes are opened by order of the court taking cognizance thereof, it is the latter’s duty to examine all their contents and to adjudicate the valid votes found therein to either one of the candidates. And the reason for this rule is, that in such cases the primary aim must be to carry out the will of the electorate as expressed in the ballots. (Lucero vs. Be Guzman, 45 Phil, 852; Yalung vs. Atienza, 52 Phil., 781; Quesada vs. Bagabaldo, G. R. No. 30262, February 13, 1929, not reported; Olano vs. Tibayan. 63 Phil., 168.) That the counter-protest relative to said precincts had been later withdrawn by the appellant does not alter the legal aspect of the case, nor did it warrant the striking out of the reply, especially in view of the fact that the ballot boxes were already opened and the ballots had been examined. We finally hold that the court did not err in adjudicating 164 votes to the appellee in precinct No. 1 of Talavera and 98 in precinct No. 7, instead of the number of votes appearing in the statements. In the third assigned error, the appellant claims a group of ballots whose votes for governor were cast in his favor but wherein his name was subsequently erased and substituted by that of the appellee, or simply erased, or erased and then followed by the name or surname of the appellee. The appellant alleges that these changes were the result of fraud committed in the Philippine Senate where the ballot boxes had been forwarded and had remained for about four months by reason of the protest of Ricardo Gonzales Lloret against Senator Hermogenes Concepcion. The same boxes containing the challenged ballots were also transmitted to the House of Representatives in connection with the protest filed by Manuel Gallego against Representative Jose Robles. Abundant evidence has been adduced to establish that the changes occurred in one of the offices of the Senate as a result of the examination of the ballots to ascertain the number of votes received by the rival candidates for the office of Senator. It would be fruitless to set out the testimony of the witnesses who have testified on this score. For the purposes of this decision, we need only mention the establishment by a convincing preponderance of the evidence, that the changes were actually made and must have been engineered by some persons with the deliberate purpose of giving the appellee the advantage and the greatest possible number of votes. The assignment of error covers precinct No. 10 of Cabanatuan, precincts Nos. 8, 9 and 10 of Gapan, precinct No. 6 of Munoz and precinct No, 5 of Penaranda. In precinct No. 10 of Cabanatuan, the appellant claims ballots Exhibits 595 to 628, inclusive, that is, 34 ballots. In all of them the appellant was voted for governor, but his name was crossed out with a lead pencil, although the names were originally written in indelible ink. We need not go any further, however, in view of the fact that all the 34 ballots, or better still, the votes for governor, were counted by the court for the appellant. In precinct No. 8 of Gapan, the appellant claims 28 ballots, which he divides into four groups. To the first group appertain 10 ballots, namely, Exhibits 753 to 762. In the space for governor in each of these ballots, the name of the appellant appears written in indelible pencil and crossed out with the same kind of pencil. The appellant argues that under the fraudulent plan above referred to, his name was erased by persons other than the voters in the manner indicated. After examining the ballots, we have reached the conclusion and so hold that, for want of any direct evidence to the contrary, it must be presumed that those who erased the name of the appellant were the voters themselves, because the erasures have been made with the same kind of pencil in which the appellant’s name, as well as those of other candidates for different offices, was written. Consequently, these 10 ballots should not be counted for the appellant. The next group includes 2 ballots, namely, Exhibits 774 and 776. In the space for governor in the first ballot, the name of Jacinto Tomacruz was written, later it was erased with an indelible pencil, and above it was written the name of Aurelio Cecilio. In the space for governor in the second ballot, “Tomacruz” was written, later it was crossed out with an indelible pencil, and following it was written “Cesilio”. For the same reason set out in the preceding paragraph, we have decided not to count the votes in these ballots in favor of the appellant. In the next group, the appellant seeks to obtain the votes tor governor contained in 13 ballots, namely, Exhibits 771, 772, 773, 775 and 777 to 785. The appellant was voted for governor in these ballots, but his name was crossed out and in its place appears the name of the appellee in varying forms. We have reached the same conclusion in examining these 13 ballots. In default of evidence demonstrative that the erasures and changes were made by persons other than the voters, it must be presumed, to give effect to the voter’s will, that the erasures and changes were made by the voters themselves who prepared their ballots. The last group includes 3 ballots, Exhibits 769, 770 and 786. In the first two ballots, the name of the appellant was crossed out with an indelible pencil; and following it the name of the appellee was written; in the last ballot the surname of the appellant was crossed out with an indelible pencil, and above it appears written the initial of the appellee’s name and his surname. Neither should these 3 ballots be credited to the appellant, because it does not clearly appear that persons other than the voters themselves made the erasures and amendments or alterations. In viewing these ballots and kindred ones, we have not been able to free our minds of the belief that probably the voters themselves made the changes after mature reflection or change of mind as to the candidate for governor for whom they wanted to vote. In precinct No. 9 of Gapan, the appellant claims the votes for governor contained in 12 ballots, namely, Exhibits 800, 801, 787, and 788 to 796, inclusive. In the first two, the name of the appellant appears on the lines for governor, but it was crossed out with an indelible pencil, which is the same kind used in writing the names of the other candidates voted for different offices. In the ballot, Exhibit 787, the appellant was also voted for governor, but his surname was canceled with an indelible pencil, and following it appears the name of the appellee. These three ballots should not be counted in favor of the appellant, because it may be presumed from their appearance that the crosses were made by the voters themselves who prepared them. In ballots, Exhibits 788 to 796, nine in all, the appellant was voted for governor. His name was erased, and in its place the appellee’s name was written in indelible pencil. An examination of these 9 ballots reveals that the writers of the appellee’s name were not the voters themselves, because the characters and outlines subsequently used plainly differ from those observed in the names of the other persons voted for different offices. Of the 12 ballots, therefore, 9 should be counted for the appellant and 3 should be rejected. In precinct No. 10 of Gapan, the appellant claims 20 ballots, Exhibits 802 to 821, inclusive. Ballot Exhibit 819 was admitted by the court and the vote for governor credited to the appellant (table prepared by the appellant, page 229 of his brief). In the remaining 19 ballots, the appellant was voted for governor, but his name was erased or crossed out with an indelible pencil, and in its place or following it the appellee’s name was written in each of them. It is plainly seen that those who wrote the appellee’s name were not the voters who prepared the ballots and cast them for the appellant, because the characters and outlines used by them are clearly different from those appearing in the names of the other candidates voted for the different offices. The appellant has 19 more votes in his favor in this precinct. In precinct No. 6 of Mufioz, the appellant claims 5 ballots, Exhibits 235 to 239. In the first two, “Tomi” and “Tomy” were voted for governor. The appellant lays claim to these votes upon the statement in his certificate of candidacy that he is known by said familiar name throughout the Province of Nueva Ecija, and upon the abundant testimony adduced by him that ‘his friends and aquaintances have invariably called and known him by said nickname. We have uniformly held in the cases of Molina vs. Nuesa (G. R. No. 30548, June 5, 1929, not reported) ; Alegre vs. Perey (G. R. No. 31017, March 26, 1929, not reported); Bayona vs. Siaotong (G. R. No. 36065, 56 Phil., 831) ; Marquez vs. Santiago (G. R. No. 36502, 57 Phil, 969); Fausto vs. Ramos (G. R. No. 42601, 61 Phil., 1035) ; and Sarenas vs. Generoso (61 Phil., 549) ; that votes cast with only the nickname or familiar name should not be counted in favor of any candidate because they do not sufficiently identify the person voted for. In the instant case, another circumstance militates against counting these 2 ballots in favor of the appellant, consisting in appellee’s proof that there are other persons in the province likewise known as “Tommy”. The appellant earnestly contends that his case, at least, calls for an exception justified by the abundant evidence adduced by him from which it may be deduced that the voters, in using the familiar name “Tommy”, really intended to vote for him. While it must be conceded that there is some point in the argument, we are not inclined, however, to establish the exception asked for, in view of the fact that it would only bring about confusion in the uniform doctrine laid down on the subject. Furthermore, as has already been stated, it is proven that there are other persons also known by the same familiar name. In the 3 remaining: ballots, Exhibits 237, 238 and 239, the appellant was voted for governor, but his name was crossed out with a lead pencil. From the use of this kind of pencil, which is different from the indelible pencil with which the names of the other candidates voted for other offices were written, we conclude that the crosses were made by persons other than the voters, and that the votes in these 3 ballots should be credited to the appellant. In precinct No. 5 of Penaranda, the last of the third assigned error, the appellant claims 7 ballots, Exhibits 256 to 259 and 896 to 898. Ballot Exhibit 259 was received by the court (table prepared by the appellant, page 228 of his brief). In ballots Exhibits 256, 257 and 258, the appellant was voted for governor, but his name was crossed out with a pencil different from that used by the voters in writing the names of the other candidates for other offices for whom they voted, from which it must be presumed that the crosses were made by persons other than the voters. In the ballots Exhibits 987 and 988, the appellant was likewise voted for governor, but his name was erased and crossed out, respectively, and in its place the appellee’s name was written. The latter’s name is written in characters and outlines different from those found in the other names appearing in the ballots, from which we deduce that the alterations were made by persons other than the voters. In the ballot Exhibit 896, the vote for governor appears to be cast in favor of “tomy”; this familiar name was erased and following it was written the initial of the appellee’s Christian name and his surname. It is plainly noticeable that the erasure and the name of the appellee were written by a hand other than that which wrote the other names of the candidates voted for different offices; for the reasons already stated, the vote cast in favor of “tomy” cannot be credited to the appellant. It appears that in this precinct the appellant has obtained 5 more votes. Summarizing all that has been said so far on the third assigned error, it appears that the appellant should be credited with a total of 36 more votes. At the continuation of the trial of the case on March 17, 1935, the attorney for the appellant announced to the court that the latter’s witnesses, surnamed Valencia and Mendez, had already arrived, and offered them as part of the evidence of the counter-contest. The first witness would corroborate the allegation of fraud committed in the Senate in connection with the ballots taken up in the third assigned error, and the second, who was an election inspector of precinct No. 10 of Cabanatuan, would have testified that during the reading of the 34 ballots considered in the third assigned error in said precinct, the same did not contain changes or erasures particularly in the votes cast in favor of the appellant for the office of governor. The court refused to allow the two witnesses to testify. This action of the court motivates the fourth and fifth assigned errors of the appellant. We rule that the fourth and fifth assigned errors are without merit, because the resolution of the court refusing to permit the two witnesses to testify, did not prejudice any substantial right of the appellant in view of our previous holding that the fraud has been in fact committed, and the 34 ballots of precinct No. 10 of Cabanatuan have been admitted both by the lower court and by this court. An assigned error which is not prejudicial to the interest of the parties should not be favorably considered by the appellate court, and the error which had been committed need not be corrected. At one of the trials of the case, the attorney for the appellant was informed by Attorney Alfredo Santos that there was another attorney by the name of Angel Cecilio who likewise appeared in the case as one of the attorneys of the appellee, and who had presented himself as a candidate for representative at the special election of March 22,1926. In the certificate of candidacy, Exhibit 1033, which he filed, he had stated that he was also known as A. Cecilio and Cecilio only. According to the statement Exhibit 1032 then prepared, he had received 3,351 votes for representative. In view of this discovery the attorney for the appellant asked the court to allow him to mark, for purposes of identification, all the votes in favor of the appellee bearing the name of “A. Cecilio” and to admit Exhibits 1032 and 1033 as part of his evidence. The court denied the petition. This ruling of the court forms the basis of the sixth and seventh assigned errors of the appellant. The reasons stated by the court in refusing the marking of those ballots, in rejecting Exhibits 1032 and 1033, and in counting the ballots containing votes for “A. Cecilio” in favor of the appellee, were that they were sufficiently identified with the marks placed by the attorneys for the appellee, and that the votes for governor cast in such form were clearly those of voters for the appellee. As to the rejection of the two documents, it seems that the ruling was based on the ground that they were unnecessary evidence. The reasons which the court took into account in giving the appellee the votes for governor contained in said ballots and in denying the appellant’s petition that they should be deducted and rejected, were that the ballots had already been admitted without objection of the attorney for the appellant, and that the votes were clearly cast for the appellee. Passing now this point, we are of the opinion and so hold that the said votes should not be deducted from the appellee, but should be adjudicated to him, because the evidence shows that Angel Cecilio was not a candidate in the elections, either for governor or for any other elective office, and he did not file a certificate of candidacy as required by law. For this reason, it is unreasonable and unwarranted to believe that the voters intended to vote for him for the office of governor to which he did not aspire. It being a legal requirement (sec. 404 of the Election Law, as amended), that the candidates for an elective office must file a certificate of candidacy and that those who contravene this provision are not eligible, it must be presumed that the voters were not only aware of this legal provision but in exercising their right of suffrage they cast their votes in favor of registered and eligible candidates. It is true that in one ballot, the photograph of which is attached to page 249 of the appellant’s brief, Angel Cecilio was voted for the of^ce of governor; but this isolated fact does not discountenance the proposition that we establish, nor does it give support to appellant’s contention that the votes cast in favor of “A. Cecilio” were for Angel Cecilio and not for the appellee Aurelio Cecilio. We, therefore, conclude that the sixth and seventh assigned errors cannot be sustained. In his eighth assigned error, the appellant impugns 78 ballots wherein the appellee was voted for by the name “Cecilio” only. All these ballots were admitted by the court without appellant’s objection. In one of the following sessions, the appellant asked for the reconsideration of the admission of the 78 ballots on the ground that he just discovered that one, Cecilio Enriquez, was a candidate for councilor in the municipality of Gapan, and Cecilio Lazatin for the same office in the municipality of Guimba, and that the votes cast in favor of “Cecilio” only should not have been counted for appellee because there had been no means to ascertain for whom of the three Cecilios the voters had voted. The court denied the petition without stating its grounds therefor, but counsel for the appellee had alleged as reasons for overruling appellant’s contention that the ballots had already been admitted without objection, and that Enriquez and Lazatin were not candidates for governor but for councilor in their respective towns. In aid of his contention, the appellant cites the decision of this court in Ignacio vs. Navarro (G. R. No. 37401, 57 Phil., 1000, 1011), denying the motion for a new trial therein presented and holding that the ballots containing votes for Navarro had not been counted because it appeared that there were other candidates for different offices with the same surname, and under those circumstances it could not be determined for whom the voters had voted. He also cites the decision of this court in Sarenas vs. Generoso (61 Phil., 549), in passing upon ballots wherein only the candidate’s surname appeared voted for. It cannot be denied that in the cited case of Ignacio vs. Navarro, this court in truth said that the votes in favor of Navarro should not be counted as in fact they were not adjudicated to him; but the instant case is distinguishable from that of Navarro, indeed the distinction is clear, because in the present case the two candidates for councilor did not bear the surname of Cecilio but instead are called by the same Christian name, and there is no other candidate for governor with the surname of Cecilio. In these ballots under study, it is noted that the voters invariably voted in favor of “Cecilio” for governor, and this is the surname of the appellee; there being no other candidate for the same office with the same surname, it would be illogical and improbable to suppose that the voters intended to vote for Cecilio Enriquez and Cecilio Lazatin who have not the same surname and who were not candidates for the same office. We, therefore, conclude that the eighth assigned error is without merit. In his ninth assigned error, the appellant claims the vote for governor in ballot Exhibit 982. The vote is cast in favor of “J. toMacreu”. The initial is that of the appellant’s Christian name, and what follows is idem sonans with his surname. The vote is valid and should be adjudicated to the appellant. In the tenth assigned error, the appellant claims the votes for governor in the ballots Exhibits 371, 179, 86, 87, 641, 765 and 65. In all of them the appellant appears voted for governor. The first ballot was rejected by the court because Matilde Bravo, a woman, was voted for councilor, and the ballot was thus considered marked. We rule that this ballot Exhibit 371 is valid and that the vote for governor should be adjudicated to the appellant. The name of a woman written in one of these spaces for councilors, although the vote is invalid, does not of itself constitute a mark or counter-mark which invalidates the entire ballot (Cailles vs. Gomez and Barbaza, 42 Phil., 496; Lucero vs. De Guzman, 45 Phil., 852; Dejarme vs. Castaneda, G. R. No. 30611, April 22, 1929, not reported; Sinogba vs. Reganit, G. R. No. 36244, 57 Phil., 955). The ballot Exhibit 179 was rejected by the court because after the name of Felix Palad, voted for senator, the voter added the word “mautog” which is an irrelevant, and, in this instance, indecent expression. The ballot was properly considered as marked, and for that reason ruled out The 5 remaining ballots Exhibits 86, 87, 641, 765 and 65 were rejected by the court because at the foot thereof and outside of the columns assigned for councilors are written names and surnames of different persons which appear to be those of the voters who prepared them. We hold that these ballots are marked and were properly ruled out. The result is that under this assignment of error, the appellant has received 1 vote. In the eleventh assigned error, the appellant claims 34 ballots whose votes for governor were not adjudicated to him by the court because his name and surname or the initial of his name and surname were not correctly written. These ballots are divided into 9 groups, the first group consisting of Exhibits 397, 61, 225, 231, 182, 78, 167, and 186. In the first 7 ballots, the votes for governor are cast in favor; of “G. Tomacruz”. The court rejected them undoubtedly because the initial of the Christian name does not dovetail with that of the appellant; nevertheless, said votes should be counted for the appellant because the initial “G” means in the instant case Ginoo in Tagalog, which is equivalent to Senor in Spanish. (Cailles vs. Gomez and Barbaza, 42 Phil., 496; Valenzuela vs. Carlos and Lopez de Jesus, 42 Phil., 428; Lucero vs. De Guzman, 45 Phil., 852; Mandac vs. Samonte, 54 Phil., 706; Medina vs. Noble, G. R. No. 36018, 56 Phil, 833; Cauan vs. Pagulayan, G. R. No. 36849, 57 Phil., 967; Ignacio vs. Navarro, G. R. No. 37401, 57 Phil, 1000, 1011; and Sarenas vs. Generoso, 61 Phil., 549) ; furthermore, in his certificate of candidacy the appellant already stated that in the province he was so known and called. In the last ballot, Exhibit 186, the vote for governor is for “T. Cros”. Granting that the last word is idem sonans with “Cruz”, neither can it be a valid vote for the appellant, it being generally known that many persons bear the surname Cruz, and the initial preceding it is neither that of the appellant’s name. This ballot should not be counted for the appellant. Under this group the appellant is entitled to 7 more votes. The second group consists of the ballots Exhibits 304,131, 128, 252, 204 and 173 where the votes for governor are for “T. Cruz”. The same reason should be applied in not adjudicating these votes in favor of the appellant; neither the initial nor the surname corresponds with those of the appellant; Cruz is the surname of many persons and cannot be considered as idem sonans with appellant’s surname. The third group consists of the ballots Exhibits 763, where the vote for governor is written “L. Tomaeruz”; 977, 1007, 71, 102, 157, 227 and 202 where the votes for governor are cast in favor of “C. Tomaeruz”, save the last one where the initial of the name is also like the capital letters “J” or “L”. We have decided to count all these votes for the appellant because his surname appears clearly written, and in the vernacular it is usual to pronounce the name “Jacinto” “Casinto” as it is difficult to pronounce the “J”. The appellant has obtained 8 additional votes in this group. The fourth group covers the ballots Exhibits 594, 120, 145 and 146 wherein *‘A. Tomacruz” is voted for governor. In his certificate of candidacy, the appellant also stated that many write the initial of his name and his surname in said form because the less educated people believe that “Jacinto” is written “Acinto”, without “J”. The explanation is satisfactory, and as the appellant’s surname is clearly written, we choose to credit him the votes in these 4 ballots. In the fifth group, the appellant claims ballots Exhibits 992, 996, 119, and 191 wherein the votes for governor are written “J. Cruz”. Although the initial tallies with that of appellant’s name, nevertheless, the surname is not his, nor can it be considered as idem sonans therewith, because, as we have already said, “Cruz” is a surname generally used. These 4 ballots should not be counted for the appellant. The ballot Exhibit 983 is claimed in the sixth group. The same contains no more than three names voted for the first three offices, and they are so poorly written that they appear to be illegible. The person voted for governor is similar to “0 aoma oroma”, which bears no resemblance whatever to the name and surname of the appellant. The vote for governor cannot be counted in the latter’s favor. In the seventh group the appellant claims ballot Exhibit 62, wherein the vote for governor is written “H. Tomacruz”. This ballot is good for the appellant, because in the vernacular the “H” when sounded is equivalent to “J”, hence, the name of “Jacinto” is very often written “Hacinto”. In the eighth group, the appellant claims ballot Exhibit 75, wherein the vote for governor appears written “K. Tomacruz”, and in the ninth and last groupjie claims ballot Exhibit 76, wherein the vote for governor is read “D. Tomacruz”., Both ballots should be adjudicated to the appellant, because in the vernacular, people of scant education write the name “Jacinto” indiscriminately with “J” “IT” “C” or “K”, and the initial “D” in the last ballot stands for “Don” or “Senor”. In resume, the appellant should be awarded 22 additional votes under the eleventh assigned error. In the twelfth assigned error, the appellant claims the following ballots: Exhibit 405 wherein the vote for governor is written “Tomny”; conceding that this word is idem sonans with “Tommy”, the vote cannot be counted for the appellant because, as we have already held, the vote containing a familiar name or nickname only is invalid; Exhibit 84 wherein the vote for governor is in favor of the appellant, although his name and surname are not correctly written, the ballot is good and the vote should be credited to the appellant; Exhibit 55 wherein the vote for governor is written “Juse tomaroz”; Hie first letter being clearly a capital “J” and the surname written being idem sonans with appellant’s surname, the vote should be counted for the latter; Exhibit 135 wherein the vote for governor is written “josi Tomacros”; we consider what is written as idem sonans with the appellant’s name and surname and the ballot is, therefore, good; Exhibit 169 wherein the vote for governor is written “Jusi tomaCrus” , the voter who prepared the ballot is almost illiterate and the name which appears voted for governor is idem sonans with that of the appellant, hence, it is a valid vote for him; Exhibit 170 wherein the person voted for is “gusi tomacrus”; this involves another almost illiterate voter and the name is idem sonans with that of the appellant and the vote is valid for him; Exhibit 178 wherein the appellant appears voted for as “Juse tomakor”; it is another ballot prepared by a voter little conversant with writing but who undoubtedly intended to write the name and surname of the appellant, and what is written appears to be idem sonans with the appellant’s name and surname, wherefore, it is another vote which should be adjudicated to the latter; Exhibit 185 wherein the name which appears voted for governor reads “josi lomacros”; it is idem sonans with appellant’s name and we adjudicate the vote to him; Exhibit 270 wherein the name voted for clearly reads “Jose tomacruz”; the voter appears to be familiar with writing, so we decide not to count the vote for the appellant in view of the fact that the Christian name is not his; Exhibit 271 wherein “Juci tomakruz’ is voted for governor; this involves another almost illiterate voter and examining the whole of what he wrote it appears that he intended to write the appellant’s name and surname; we count this vote for the appellant; Exhibit 28, wherein “jose tomacros” is voted for governor; it is the ballot of another semi-illiterate voter, so we count the vote for the appellant because it appears that the voter intended to write the name and surname of the appellant; Exhibit 358 wherein the vote for governor is written “jusi Tumazros”; it is the ballot of another unacquainted with writing but who intended to write the name and surname of the appellant, so we count the vote in favor of the latter; Exhibit 828 wherein the vote for governor reads “Jose tomacruz”; it was written by a voter who is quite intelligent and there is no reason to count the vote for the appellant because the Christian name does not coincide with his; Exhibits 919, 998 and 1019, wherein the votes for governor are written “Juse tomaguros”, “Jusi tomacrus” and “Jusi Tomakrus”; it is plain that these three ballots have been prepared by almost illiterate voters but who intended to write the name and surname of the appellant, so we adjudicate the 3 votes to the latter. Under his twelfth assigned error, the appellant has obtained 13 additional votes. In the thirteenth assigned error, the appellant claims the ballots Exhibits 829, 990, 100, and 175. In the first the vote for governor reads “J To”; this name is certainly not that of the appellant, nor is it idem sonans with his, so the vote cannot be adjudicated to him. In the remaining three, the votes for governor read, respectively, “aato tomacros”, “Jasinto” and “Jn tomacruz”; the voters’ intention to vote for the appellant as governor is evident, and the Christian name of Jacinto cannot be confused with others because there was no other candidate with the same name for the same office; these 3 votes should be counted for the appellant. Four (4) ballots are discussed in the fourteenth assigned error, namely, Exhibits 402, 824,121 and 253 wherein the votes for governor are claimed by the appellant. The surname of the appellant appears therein clearly written in the spaces for governor, but in the first the initial. of the name is written with “S”, in the second with “Y”, in the third with “h” and in the fourth with “J”, so poorly formed that it is mistaken for “V” at first sight. In view of the fact that the voters who prepared the ballots have practically no education, we hold that they intended to write the initial of the appellant’s name and that the 4 votes should be adjudicated to him. The votes for governor in the ballots Exhibits 948 and 949 are claimed by the appellant in his fifteenth assigned error. The court rejected the two ballots because they have been spoiled and deposited in the red ballot box during the voting. Neither of them contains on the back the word “useless” or “spoiled”, but ballot Exhibit 948 still preserves the stub indicative that it was in reality a spoiled ballot deposited in the box for spoiled ballots. Exhibit 949 does not suffer from any defect, and being good the vote for governor should be adjudicated to the appellant; this ballot must have been deposited in the red ballot box by mistake or through inadvertence. Valid ballots deposited in the red box or box for spoiled ballots through error, mistake, or inadvertence are good and should be counted if they do not suffer from any defect invalidating them (Lucero vs. De Guzman, 45 Phil., 852; Bulan vs. Gaffud, 49 Phil., 906; Mandac vs. Samonte, 49 Phil., 284; Aviado vs. Talens, 52 Phil., 665; Yalung vs. Atienza, 52 Phil., 781; Mendiola vs. Mendoza, G. R. No. 36143, 56 Phil., 833; Sinogba vs. Reganit, G. R. No. 36244, 57 Phil., 955; Cauan vs. Pagulayan, G. R. No. 36849, 57 Phil., 967; Bungubung vs. Madayang, G. R. No. 42488, 61 Phil., 1033; Ignacio vs. Navarro, G. R. No. 37401, 57 Phil., 1000, 1011). In the sixteenth assigned error, the appellant questions ballots Exhibits CC and CC-1, and prays that the votes for governor cast in favor of the appellee be deducted from the latter on the ground that, whereas the two ballots came from precinct No. 2 of Penaranda, they were found in precinct No. 5 of the same municipality. No evidence has been adduced in explanation of this transposition or anomaly; in the absence of fraud, it must be attributed to a mere error or inadvertence in the distribution of the official ballots, and the votes should be counted, for it is not just that the voters should suffer from the mistakes committed in good faith by the officials in charge of distributing the ballots (Ignacio vs. Navarro, supra). In the seventeenth assigned error, the appellant questions ballots Exhibits Y-l, F-5, BB-11, BB-12 BB-13, Y-8, Y-9, Y-18, E-7, E-9, E-10, CC-148, CC-149 and CC-150 and contends that the votes for governor should be deducted from the number obtained by the appellee. Ballots Y-l, Y-8, Y-9, and Y-18 of precinct No. 3 of San Antonio were admitted by the court, because although they were found in the red ballot box, it was established that they were deposited by mistake and as a result of the discussion had between the inspectors during the counting. We concur in this finding and hold the ballots valid. Ballot F-5 is challenged because on the back thereof appears the word “useless” ; this is another of the ballot erroneously deposited in the red ballot box during the counting; it is a good ballot and the vote should not be deducted from the appellee. Ballots BB-11, BB-12 and BB-13 of precinct No. 2 of Penaranda are challenged because the word “spoiled” appears on the back thereof; the court counted the votes and admitted the ballots because they are of those which were erroneously deposited in the red ballot box during the counting and the votes for the appellee are clearly stated; we accept the finding as correct, save as to ballot BB-11 which we rule should not be counted because containing an irrelevant expression in the next to the last line for councilors. Ballots E-7, E-9 and E-10 of precinct No. 3 of Lupao are challenged because they were found in the red ballot box and there appears on the back thereof the note “marked ballot”; the court admitted them and adjudicated the votes for governor to the appellee because it was established that they form a part of the ballots which were deposited by mistake in the box for spoiled ballots as a result of the discussion among the inspectors during the counting; we find no error in the action of the court and we hold the ballots valid. Ballots CC-148, CC-149 and CC-150 of precinct No. 5 of Penaranda are assailed because they have been found in the red box as spoiled ballots with the initials “A. L.” of an inspector on the back thereof. With the exception of the first, we do not find the initials on the back of the remaining two; they were admitted by the court as being among the ballots deposited by mistake in the red box containing valid votes for governor in favor of the appellee; we concur in the court’s finding, save as to ballot CC-149 which should be considered as spoiled because besides having been found in the red box it has also not been detached from the stub which shows that it was returned by the voter and substituted by another. Two votes should be deducted from the appellee under this assigned error. In his eighteenth assijgned error, the appellant challenges ballots Exhibits HH-2, HH-3, HH-4, HH-5 and HH-7, of precinct No. 6 of Cabiao, and prays that the votes for governor be deducted from the appellant because they were found in the red box and are consequently spoiled ballots. The court admitted the ballots because it was established that they were deposited in the red box not during the voting, but during the counting and as a result of a discussion among the inspectors, and the votes cast for the appellee for the office of governor are good. We approve the resolution of the court and we hold that the ballots are valid in harmony with the ruling on the subject laid down in the cases already cited in resolving the preceding assignments of error. In the nineteenth assigned error, the appellant challenges 14 ballots of the appellee, containing votes for governor in favor of the latter, on the following grounds: Exhibit NN-2 because the voter cast his vote for only three candidates for councilors, and in the remaining spaces wrote in pencil semicircle similar to the number 6; the appellant contends that the presence of said sign constitutes a mark on the ballot; we understand that it is neither a mark nor a counter-mark, by it the voter meant that he did not want to vote for other councilors. Ballot FF-4 is impugned because the only one voted for councilor is one, Muring Luna. This, to our mind, is not a mark, but the nickname of a person named Mauro and his surname. It is alleged that ballot A-31 is marked because in the upper part there appears written the number 97 and below the number 1. The person who prepared the ballot is more or less illiterate and we do not believe that he himself had written those numbers: In addition, the presence of said figures does not of itself constitute a mark. The ballot is valid. Ballot R-l appears plainly marked with the word “tomacros”, written at the foot thereof after the spaces for councilors; the vote should be deducted from the appellee. Ballot Exhibit DD is questioned because the person voted for governor is “A. Cilio”; the initial is that of appellee’s name and what follows is idem sonans with his surname; it is good vote for the appellee. Exhibit Y-15 is questioned because at the bottom of the ballot the voter wrote two more names for whom he voted as councilors outside of the spaces for said offices. The presence of these two names in said places does not constitute a mark or a counter-mark if it is considered that the one who prepared the ballot had little or no education and was almost illiterate; the ballot is valid. On the back of each of the ballots LLL-1 and LLL-2 of precinct No. 5 of Jaen, not precinct No. 1 of Aliaga as stated in appellant’s brief, appears a smear produced by the finger when it comes in contact with something written in indelible pencil; it is claimed that these smears constitute marks purposely placed to identify the ballots; after a careful examination thereof we have come to the conclusion that they were casually placed there, hence, the votes are valid for the appellee. Ballots AA-6, AA-7, AA-8 and AA-9 are challenged as marked because the names of those voted for are written in blue pencil; it is argued that in using this kind of pencil instead of the indelible pencil, the voters intended to identify their ballots; in the absence of evidence that such was the purpose of said voters, we hold that what took place was accidental and that the voters used the blue pencil because there must have been no indelible pencil in the booths; the ballots are good and the votes valid. Ballots W-2 and B-20 are challenged as marked; the first cannot be found and being unable to examine the same, we affirm the ruling of the court thereon; in the last ballot the voter voted for “Necomedes limang tabiog” as sole councilor; this, it is said, is a mark; it seems that such was not the voter’s intention, rather, having forgotten the surname of Nicomedes, he wrote his nickname in its place; in this circumstance, what was written is neither a mark nor a counter-mark, and the ballot is valid. The result is, that under the nineteenth assigned error, 1 vote should be deducted from the appellee, namely, that contained in ballot Exhibit R-l, of the precinct of Pantabangan. The appellant challenges the five ballots YY, AAA-6, W, 6 and S in his twentieth assigned error, on the ground that they were marked. We have examined the 5 ballots and have reached the conclusion that they are not so. In the first, it appears that the voter is an expert scribe and so wrote some names voted for in the form of printed letters. The same was true of the second. In the remainder, the voters who prepared them also had varying forms of writing, and so wrote the name and surname of the appellee differently from the other names voted for other offices. The twenty-first assigned error questions 7 ballots, Exhibits B-ll, X-l, W-7, AA-2, AA-4, DDD-7 and MMM-5, on the allegation that the initials prefixed to the appellee’s surname do not coincide with the initial of his real name. From an examination of the ballots, we drew the inference that the initial used in each of the 5 ballots is an A which, by its peculiar form, might be confused with H, G and T They are good ballots for the appellee. The twenty-second assigned error impugns 2 ballots, Exhibits BB-6 and BB-7 of precinct No. 2 of Peiiaranda, on the allegation that they form a part of the ballots in which fraud was committed by erasing the name and surname of the appellant and later placing thereover the initial of the name and the surname of the appellee. We have examined both ballots with a good magnifying glass and have not found the alterations referred to. We hold that the ballots are valid. Ballots Exhibits YY-4, L-2, DD-5, H-l, 1-4 and BB-5, are challenged in the twenty-third assigned error on the allegation that the one voted for governor is written in indecipherable characters. It is true that the name or the initial and the surname of the appellee are somewhat poorly written in these ballots, indicating thereby that the voters are not Well educated; but after a!l is said and done, we encounter little difficulty in reaching the conviction that the votes are for the appellee and that such was the intention of the voters. The 6 ballots are admitted. In the twenty-fourth assigned error, the appellant challenges ballots Exhibits ÑÑ-6, WW-3, R and DDD-12 because the voters wrote an additional name after the last space for councilors; it is urged that these last names are marks or counter-marks to identify the ballots. We have examined these ballots, and considering the meager education of those who prepared them, have come to the conclusion that the additional names do not constitute marks, but are other votes in favor of candidates for councilors voted for in the voter’s belief in good faith that they are entitled thereto. They are valid ballots for the appellee, In the twenty-fifth assigned error, ballot Exhibit QQ-2 is sought to be invalidated, because on the back thereof appears written the note “excess ballot”; it is alleged that this is a surplus ballot and should not have been counted. The court admitted it because according to the counting made by the commissioners and by the court, there was no excess of ballots in the box of precinct No. 10 of Gapan to which the ballot pertains. We adhere to the ruling of the court and the vote contained in the ballot in favor of the appellee should be adjudicated to him. Ballots Exhibits C-10, J-19 and DD-6 are impugned in the twenty-sixth assigned error because the person voted for governor is not the appellee. The ballot J-19 has not been located, so we abide by the ruling of the court admitting the same. In C-10 the vote for governor reads, “A aulio”; the “A” is the initial of the appellee’s name, and what follows is idem sonans with his surname. In DD-6 the vote for governor is written “A Cilio”; the “A” is the initial of the appellee’s name, and what follows is idem aonans with his surname. Both ballots are likewise valid. Ballots Exhibits KK, GG, PP-2, CCC-5, ff-1, BB, N, MMM-1, J-9 and J-ll, ten in all, are questioned in the twenty-seventh assigned error on the allegation that different persons intervened in their preparation. Ballots J-9 and J-ll of precinct No. 1 of Laur have not been found and in their stead there have been found ballots J-9 and J-ll of precinct No, 4 of the same municipality; probably the appellant referred to these last ballots. On the supposition that these last ballots were not the ones referred to in the assignment of error we affirm the ruling of the court. From an examination of all the ballots, we have drawn the conclusion that different persons have not intervened in their preparation. There is a slight difference in the characters used, but taking them as a whole, the conclusion is in order that the votes for the appellee have been written by the voters themselves who prepare the ballots. We accept all the said ballots as valid. In the twenty-eighth and last assigned error, the appellant challenges 21 ballots containing votes for the appellee, namely, Exhibits JJ-6 to JJ-26, on the ground that they are marked ballots because they are mutilated in the lowei, left-hand corner. The court admitted all these ballots because it was established that the mutilation was done by the chairman of the board of inspectors in separating the stubs, the torn portions having been found in the stubs which were kept and adduced during the trial. We fully agree with the court that, the mutilations not having been done by the voters who prepared the ballots, the latter should not be deprived of the right of suffrage. The ballots are not marked, and the votes for governor were legally adjudicated to the appellee. After passing on the first assigned error, we said on page 7 of this decision that the appellee had a plurality of 88 votes in his favor. In the third assigned error the appellant obtained 36 additional votes; in the ninth, 1; in the tenth, 1; in the eleventh, 22; in the twelfth, 13; in the thirteenth, 3; in the fourteenth, 4; and in the fifteenth, 1, or a total of 81 votes. Deducting this number from the plurality of 88 votes of the appellee, it appears that the latter still has 7 votes in his favor. As a result of the seventeenth assigned error, 2 votes should be deducted from the appellee, and under the nineteenth assigned error, 1. Deducting these 3 votes from his plurality of 7, it appears that he still has four (4) votes over the appellant. Having reached this result, it becomes unnecessary to consider and resolve appellee’s assignments of error. Wherefore, we modify the appealed judgment and declare that the protestant-appellee has obtained a plurality of four (4) votes over the protestee-appellant, and that, consequently, the former has been legally elected to the office of provincial governor of Nueva Ecija, with the costs of both instances and other court costs to the appellant. So ordered. Malcolm, Villa-Real, Butte, and Goddard, JJ., concur. Judgment modified,