CRIMPRO RULE 110 – Amendment v.

Substitution
Title G.R. NO. 157472
PACOY v. JUDGE CAJIGAL Date: September 28, 2007
Ponente: YNARES-SANTIAGO, J.:
SSGT. JOSE M. PACOY, G.R. NO. 157472 Petitioner, HON. AFABLE E. CAJIGAL, PEOPLE OF THE PHILIPPINES
and OLYMPIO L. ESCUETA, Respondents
Nature of the case:
Before us is a Petition for Certiorari under Rule 65 of the Rules of Court filed by SSGT. Jose M. Pacoy seeking to annul and set aside the
Orders dated October 25, 2002 and December 18, 2002 issued by Presiding Judge Afable E. of the Tarlac RTC
FACTS
On July 4, 2002, an Information for Homicide was filed in the RTC against petitioner committed as follows:

That on or about the 18th day of March 2002, in the Municipality of Mayantoc, Province of Tarlac, Philippines and within the
jurisdiction of this Honorable Court, the said accused with intent to kill, did then and there wilfully, unlawfully and feloniously shot
his commanding officer 2Lt. Frederick Esquita with his armalite rifle hitting and sustaining upon 2Lt. Frederick Esquita multiple
gunshot wounds on his body which caused his instantaneous death. With the aggravating circumstance of killing, 2Lt. Frederick
Esquita in disregard of his rank.

Upon arraignment, petitioner, assisted by a counsel de parte pleaded not guilty to homicide. Pre-trial and trial was set by the judge. However,
on the same day after arraignment, the judge issued another order directing the trial prosecutor to amend the information to murder, in
view of the aggravating circumstance of disregard of rank alleged in the information, which public respondent registered as having qualified
the crime to Murder. The prosecutor entered his amendment by crossing out the word homicide and instead wrote the word murder in the
caption and in the opening paragraph of the Information.

On the date scheduled for pre trial, the accused was to be re-arraigned for the crime of murder. Petitioner objected on the ground that he will
be placed in double jeopardy. Petitioner then filed a motion to Quash with Motion to Suspend Proceedings on the ground of double jeopardy.
He alleged that he was validly indicted and arraigned before a competent court for an information for homicide, and the case was terminated
without his express consent; that when the case for Homicide was terminated without his express consent, the subsequent filing of
information for Murder in lieu of Homicide placed him in double jeopardy.

Said Motion to Quash was denied by the responded judge ruling that a claim of former acquittal or conviction does not constitute double
jeopardy and cannot be sustained unless judgment was rendered acquitting or convicting the defendant in the former prosecution; that
petitioner was never acquitted or convicted of Homicide, since the Information for Homicide was merely corrected/or amended before trial
commenced and did not terminate the same; that the Information for Homicide was patently insufficient in substance, so no valid proceedings
could be taken thereon; and that with the allegation of aggravating circumstance of “disregard of rank,” the crime of Homicide is qualified to
Murder.

Petitioner then filed for a Motion for reconsideration alleging that contrary to respondent judge’s conclusion that disregard of rank qualifies
the killing to murder, it is a general aggravating circumstance only which only serves to affect the imposition of the period of penalty. , and
that the amendment ordered by the judge was substantial and is therefore not allowed by the Rules of Court as the petitioner has already
been arraigned. Motion for reconsideration was granted, and ruled that the original information charging the crime of homicide stands. A
petition for certiorari was filed by the petitioner alleging among others that the motion was not really reconsidered as the prayer was for the
judge to grant the Motion to Quash.

ISSUE/S
WON the respondent judge committed an error in allowing the (initial) change in the information – NO!
RATIO
Petitioner confuses the procedure and effects of amendment or substitution under Section 14, Rule 110 of the Rules of Court, to wit -
SEC. 14. Amendment or substitution. A complaint or information may be amended, in form or in substance, without leave of court,
at any time before the accused enters his plea. After the plea and during the trial, a formal amendment may only be made with
leave of court and when it can be done without causing prejudice to the rights of the accused.
xxx
If it appears at any time before judgment that a mistake has been made in charging the proper offense, the court shall dismiss the
original complaint or information upon the filing of a new one charging the proper offense in accordance with Rule 119, Section 11,
provided the accused would not be placed thereby in double jeopardy, and may also require the witnesses to give bail for their
appearance at the trial.

with Section 19, Rule 119 of which provides:

SEC. 19. When mistake has been made in charging the proper offense. - When it becomes manifest at any time before judgment that
a mistake has been made in charging the proper offense and the accused cannot be convicted of the offense charged or any other
offense necessarily included therein, the accused shall not be discharged if there appears good cause to detain him. In such case, the
court shall commit the accused to answer for the proper offense and dismiss the original case upon the filing of the proper
information. —
First, a distinction shall be made between amendment and substitution under Section 14, Rule 110. (please see notes)

In the present case, the change of the offense charged from Homicide to Murder is merely a formal amendment and not a substantial
amendment or a substitution as defined in Teehankee.

While the amended Information was for Murder, a reading of the Information shows that the only change made was in the caption of the
case; and in the opening paragraph or preamble of the Information, with the crossing out of word Homicide and its replacement by the word
Murder. There was no change in the recital of facts constituting the offense charged or in the determination of the jurisdiction of the court.
The averments in the amended Information for Murder are exactly the same as those already alleged in the original Information for Homicide,
as there was not at all any change in the act imputed to petitioner, i.e., the killing of 2Lt. Escueta without any qualifying
circumstance. Thus, we find that the amendment made in the caption and preamble from Homicide to Murder as purely formal.

Section 14, Rule 110 also provides that in allowing formal amendments in cases in which the accused has already pleaded, it is necessary
that the amendments do not prejudice the rights of the accused. The test of whether the rights of an accused are prejudiced by the
amendment of a complaint or information is whether a defense under the complaint or information, as it originally stood, would no
longer be available after the amendment is made; and when any evidence the accused might have would be inapplicable to the
complaint or information.

Since the facts alleged in the accusatory portion of the amended Information are identical with those of the original Information for Homicide,
there could not be any effect on the prosecution's theory of the case; neither would there be any possible prejudice to the rights or defense of
petitioner. While the respondent judge erroneously thought that disrespect on account of rank qualified the crime to murder, as the same
was only a generic aggravating circumstance, we do not find that he committed any grave abuse of discretion in ordering the amendment of
the Information after petitioner had already pleaded not guilty to the charge of Homicide, since the amendment made was only formal and
did not adversely affect any substantial right of petitioner.

A reading of the Order dated December 18, 2002 showed that the respondent judge granted petitioner's motion for reconsideration, not on
the ground that double jeopardy exists, but on his realization that disregard of rank is a generic aggravating circumstance which does not
qualify the killing of the victim to murder. Thus, he rightly corrected himself by reinstating the original Information for Homicide. The requisite
of double jeopardy that the first jeopardy must have attached prior to the second is not present, considering that petitioner was neither
convicted nor acquitted; nor was the case against him dismissed or otherwise terminated without his express consent.
RULING
WHEREFORE, the petition is DISMISSED, there being no grave abuse of discretion committed by respondent Judge. SO ORDERED.

NOTES

Teehankee v. Madayag:

The first paragraph provides the rules for amendment of the information or complaint, while the second paragraph refers to the substitution of the information
or complaint.

It may accordingly be posited that both amendment and substitution of the information may be made before or after the defendant pleads, but they differ in
the following respects:

1. Amendment may involve either formal or substantial changes, while substitution necessarily involves a substantial change from the original charge;

2. Amendment before plea has been entered can be effected without leave of court, but substitution of information must be with leave of court as the original
information has to be dismissed;

3. Where the amendment is only as to form, there is no need for another preliminary investigation and the retaking of the plea of the accused; in substitution
of information, another preliminary investigation is entailed and the accused has to plead anew to the new information; and

4. An amended information refers to the same offense charged in the original information or to an offense which necessarily includes or is necessarily included
in the original charge, hence substantial amendments to the information after the plea has been taken cannot be made over the objection of the accused, for if
the original information would be withdrawn, the accused could invoke double jeopardy. On the other hand, substitution requires or presupposes that the new
information involves a different offense which does not include or is not necessarily included in the original charge, hence the accused cannot claim double
jeopardy.

In determining, therefore, whether there should be an amendment under the first paragraph of Section 14, Rule 110, or a substitution of information under the
second paragraph thereof, the rule is that where the second information involves the same offense, or an offense which necessarily includes or is necessarily
included in the first information, an amendment of the information is sufficient; otherwise, where the new information charges an offense which is distinct and
different from that initially charged, a substitution is in order.

There is identity between the two offenses when the evidence to support a conviction for one offense would be sufficient to warrant a conviction for the other,
or when the second offense is exactly the same as the first, or when the second offense is an attempt to commit or a frustration of, or when it necessarily
includes or is necessarily included in, the offense charged in the first information. In this connection, an offense may be said to necessarily include another when
some of the essential elements or ingredients of the former, as this is alleged in the information, constitute the latter. And, vice-versa, an offense may be said to
be necessarily included in another when the essential ingredients of the former constitute or form a part of those constituting the latter.