In the  general elections of November 10, 1959, wherein Remegio  Gabuya and  Eutiquio Dajao  ran as  candidates for  the position of Mayor of Dimiao, Bohol,  Gabuya  was proclaimed elected.   Dajao  filed a protest in the Court of First Instance  of Bohol, which, after hearing, upheld the proclamation of the protestee and declared him elected by 733 votes against the protestant's 637 votes.  The protestant took an appeal to the Court of Appeals,  which court, in its decision of  August 13, 1962 ruled and  discounted as marked ballots 170 votes of the protestee appellee, reversed the  decision  of  the  court a quo and  declared the protestant-appellant  the elected mayor of Dimiao, Bohol, with a plurality of 38 votes over his opponent.  Protestee-appellee now comes to us by way of the present petition for review.

Petitioner does not here question the finding by the Court of Appeals that all the 170 ballots  in  dispute were invariably voted for in this manner:  The name of the candidate first voted for councilor was written with his surname prefixed  by a nickname or what appears to be a derivative or contraction of his first or Christian name, while the rest  of the candidates were voted for by their surnames or their surnames and initials of their respective first or Christian names.  Thus, the candidate first voted for or whose name appears on the first space for councilors was written "Dan" Calihat, for Daniel; "Mat" for Mateo Acusar; "Greg" for  Gregorio  Pahang; "Tek", "Tik" or "Tic" for Eutiquio Idulzura; "Lu" for Luis Acorda; "Lus" or "Los" for Lucio Saluta; "Ped"  for Pedro Lagura;  "Panoy" for Galicano Idul; "Cleto"  or "Clito"  for Anacleto Palaca; and "Masoy" for Damaso Lagumbay.   It is claimed, however, that the Court of Appeals, in concluding from the  aforestated manner that the same was made for the purpose of identification, and in declaring the 170 ballots all  marked, committed an erroneous conclusion  of  law. Indeed, involved in this case is the sole issue of whether or not the Court of Appeals erred in holding as marked and, consequently, deductible from the total   number of votes counted for herein petitioner,  the 170  ballots  voted for in the manner above indicated.

In support of his contention,  disputing  the ruling of the Court of Appeals, petitioner relies on the  case of Amurao vs. Calangi,^[1]  wherein this  Court, rejecting another Court of Appeals decision holding that the writing of the name of the candidate twice gives rise to the suspicion that it was a  design to mark the ballot, held  that  such fact does not invalidate the ballot but makes of the vote for the office of which  he is not a candidate, stray.  The foregoing ruling was made in view of the  absence of evidence showing that  the repetition of the  names of the candidates was made for the   purpose of  identifying the ballots.  In  other words,  the determinative   factor in the nullification  of ballots  for being marked  as following  a design  or pattern,  is  the existence  of  evidence  aliunde tending to show the intention or purpose in the use of the contested manner or means of voting, which  is to identify the ballots. ^[2]

True  it is  that under  Section 149(9) of the  Revised Election Code, the use of nicknames and  appellations of affection and  friendship, if accompanied by the name or surname of  the candidate, does not annul such vote.   The rule,  however, is predicated on the proviso that the same is not  used as  a  means to identify its voter.^[3] But in this  case, there  is precisely such evidence  found by the Court of Appeals, which finding is binding on this Court.

Thus the Court  of Appeals in the  instant  case,  said:

"* * *. It  is a fact that a common pattern was adopted in filling  up  all the ballots  under  consideration.  This circumstance lends  credibility to   the evidence presented  by protestant to  the effect that sample ballots prepared in the manner these ballots under consideration were  filled up were distributed by the protestee and his leaders and  that instructions were given to the voters to follow said sample ballots which contain countersigns.  For  this  reason, these 170 (not 174 as claimed by protestant) ballots should be as they are hereby declared invalid as marked ballots." (Italics supplied.)

It is evident therefrom that in arriving at the conclusion that   the 170  ballots in dispute are  marked, the Court of Appeals took  into account not only  the manner by  which the  said  ballots were filled, but also the evidence aliunde presented by the protestant-respondent tending to establish that such manner  of voting was  planned to identify the votes of certain  voters or groups of voters,  in violation of the provisions of  the Election Law.

In view of the foregoing, and finding no reason to disturb the decision of the Court of Appeals sought to be reviewed, the same is hereby  affirmed,  with costs against petitioner.   So ordered.

Bengzon, C. J., Padilla, Bautista Angelo, Labrador, Concepcion, Paredes, Dizon, Regala and Makalintal, JJ., concur.

 

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^[1] 104 Phil., 347.

^[2] See also Villarosa vs.  Guanzon, L-19605, Sept.  28, 1962.

^[3] See. 149 RULES FOR THE APPRECIATION OF BALLOTS. In  the reading  and appreciation of ballots the  following rules shall be observed.

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9. The use of nicknames and appellations of affection and friendship, if accompanied by the name or surname of  the candidate, does not annul  such vote, except  when they were  used as  a  means to identify  their respective voters.