annotation amendment of complaint or information

§ I.§ II.

§ III.§ IV.§ V.

§ VI.

§ VII.

§ VIII.§ IX.

VOL. 355, MARCH 30, 2001 769Amendments of Complaints or Information

A N N O T A T I O N

AMENDMENTS OF COMPLAINTS OR INFORMATIONBy

IGMIDIO CUEVAS LAT*

________________

Introduction, p. 769Amendments, p. 770Related Provisions, p. 773Amendment as to Matter of Form, p. 775Amendment as to Matter of Substance, p. 777Mistake in Charging the Proper Offense, p.778Variance Between Allegations and Proof, p.778Double Jeopardy, p. 779Notes, p. 781

§ I. Introduction

Subject of this annotation is the case of Dennis T.Gabionza vs. Court of Appeals, G.R. No. 140311,promulgated on March30, 2001 penned by the HonorableAssociate Justice Josue N. Bellosillo.

The crux of the controversy is amendment ofinformation. Simply put, may an information be amendedto change the material dates of the commission of theoffense after the accused had been arraigned?

The Highest Court of the Land declared in the case atbench that the questioned or assailed amendment is one of

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form and not of substance. The allegation of time when anoffense is committed is a matter of form, unless time is amaterial ingredient of the offense. It is not even necessaryto state in the information the precise time the offense wascommitted unless time is a material factor. It is sufficientthat the act is alleged to have been committed at

_______________

* L.L.B.; L.L.M.; D.C.L.

770

770 SUPREME COURT REPORTS ANNOTATEDAmendments of Complaints or Information

anytime as near to the actual date at which the offense wascommitted as the complaint or information will permit.

WHEREFORE, the petition is DENIED. The assailedDECISION of the Court of Appeals in C.A.G.R. No. 49098SP affirming that of the trial court which allowed theamendment of the information charging petitioner withviolation of R.A. No. 1161 (The Social Security Law), asamended, is AFFIRMED.

Considering the delay incurred in the process, the trialcourt should immediately act on this case with deliberatedispatch upon its remand, which this Court DIRECTS.Costs against petitioner.

SO ORDERED.Case at bar is another well written decision of Mr.

Justice Josue N. Bellosillo and further enriches the subjectof Criminal Procedure particularly amendments ofcomplaint or information. Cited jurisprudence or cases laydown parameters or guideposts when an amendment is amatter of substance or form.

§ II. Amendments

Section 14, Rule 110 of the Revised Rules of CriminalProcedure (Rules 110127, as amended) provides foramendment or substitution. Same was published in ManilaBulletin and the Philippine Star, October 16 and 18, 2000,respectively, and took effect December 1, 2000.

Section 14 thereof states that a complaint or information

may be amended, in form or in substance, without leave ofcourt, at any time before the accused enters his plea. Afterthe plea and during the trial, a formal amendment mayonly be made with leave of court and when it can be donewithout causing prejudice to the rights of the accused.

However, any amendment before plea, whichdowngrades the nature of the offense charged in orexcludes any accused from the complaint or information,can be made only upon motion by the prosecutor, withnotice to the offended party and with leave of court. Thecourt shall state its reasons in resolving the motion andcopies of its order shall be furnished all parties, especiallythe offended party, (n)

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If it appears at any time before judgment that a mistakehas been made in charging the proper offense, the courtshall dismiss the original complaint or information uponthe filing of a new one charging the proper offense inaccordance with Section 19, Rule 119, provided that theaccused shall not be placed in double jeopardy. The courtmay require the witnesses to give bail for their appearanceat the trial. (14a)

Noteworthy of mention that the above provision (Section14) became effective December 1, 2000.

The case being annotated was promulgated on March13, 2001. Section 14 of the 1985 Rules of CriminalProcedure effective October 1, 1988 was applied in this caseof Dennis T. Gabionza vs. Court of Appeals. Prior to thesetwo amendments, the 1985 Rules of Criminal Proceduretook effect on January 1, 1985. Perusal of the recordsdiscloses that the information accusing petitioner ofviolating Section 22, paragraphs (a) and (d), in relation toSection 28, paragraph (e) of RA 1161 was filed onNovember 9, 1993. Ergo, the applicable provision or lawwas Section 14, 1985 Rules of Criminal Procedure effectiveOctober 1, 1988.

Section 14. Amendment.—The information or complaintmay be amended, in substance or form, without leave ofcourt, at anytime before the accused pleads; and thereafterand during the trial as to all matters of form, by leave and

at the discretion of the court, when the same can be donewithout prejudice to the rights of the accused.

If it appears at anytime before judgment that a mistakehas been made in charging the proper offense, the courtshall dismiss the original complaint or information uponthe filing of a new one charging the proper offense inaccordance with Rule 119, Section II, provided the accusedwould not be placed thereby in double jeopardy, and mayalso require the witnesses to give bail for their appearanceat the trial.

As held in this case subject of this annotation, theproper procedure for the amendment of an information isgoverned by Section 14, Rule 110, of the Rules of CriminalProcedure. Further, said the High Court, after the accusedenters a plea, amendments to the information may beallowed, as to matters of form, provided that

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no prejudice is caused to the rights of the accused. The testas to when the rights of an accused are prejudiced by theamendment of a complaint or information is when adefense under the complaint or information, as it originallystood, would no longer be available after the amendment ismade, and when any evidence the accused might have,would be inapplicable to the complaint or information asamended, citing the case of People vs. Montenegro, 159SCRA 236.

Apropos this case being annotated, a reading of Section28, paragraph (e), RA 1161, shows that it penalizes, amongothers, the failure or refusal of a compulsorily coveredemployer for remitting compulsory contributions to theSocial Security System, and neither time nor duration ofthe offense charged is a material ingredient of the offense.

Moreover, the imposable penalty will not increase as aresult of the amendment. A reading of Section 28,paragraph (e), RA 1161, shows that it penalizes, amongothers, the failure or refusal of a compulsorycoveredemployer for remitting compulsory contributions to theSSS. Neither time nor duration of the offense charged is amaterial ingredient of the offense. In fact, the penaltyimposed for this violation if constant at six (6) years and

one (1) day to twelve (12) years, regardless of the number ofinfractions.

Likewise, the principle of laches, said the HighestTribunal of the Land, is inapplicable in the case, as Section14, Rule 110 of the Rules on Criminal Procedure is explicitthat amendments as to form may still be made afterarraignment or during trial. “Laches” is defined as thefailure or neglect, for an unreasonable an unexplainedlength of time, to do that which by exercising due diligencecould or should have been done earlier; it is negligence oromission to assert a right within a reasonable timewarranting a presumption that a party entitled to assert iteither has abandoned it or declined to assert it. (Republicvs. Sandiganbayan, 255 SCRA 438). As the SolicitorGeneral correctly pointed out, the principle of laches isinapplicable in this case. The provision in Section 14, Rule110, of the Rules on Criminal Procedure is explicit thatamendments as to form may still be made afterarraignment or during trial. Since the questionedamendment was made “during trial,”

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the same was made seasonably notwithstanding the lapseof four (4) years.

Withal or what is more, the prosecution cannot befaulted for not filing the amendment earlier where trialwas suspended during the pendency of the accused’srecourse to the Court of Appeals and the Supreme Court. Itmay also be noted that even before the prosecution had thechance to present its principal evidence petitioner movedfor the suspension of trial because he filed a petition forreview on certiorari with the Court of Appeals questioningthe denial of his motion to dismiss. Pretrial was held onlyon November 11, 1997. As can be seen from the records, theprosecution did not unnecessarily waste time in filing themotion for leave of court to amend information. Again,before the prosecution had the opportunity to presentevidence, trial was suspended because of the filing of theinstant case. This, coupled with the many postponementsand resettings requested by petitioner, satisfactorilyexplains the reasonable delay in the amendment of the

information. Certainly, the prosecution cannot be faultedfor not filing the amendment earlier since trial wassuspended during the pendency of petitioner’s recourse tothe Court of Appeals and to this Court. Petitioner shouldnot then bewail the delay in the amendment because suchdelay was principally upon his behest.

§ III. Related Provisions

Under Section 4, 1985 Rules on Criminal Procedure,effective October 1, 1988, if the motion to quash is based onan alleged defect in the complaint or information which canbe cured by amendment, the court shall order theamendment to be made.

The Revised Rules of Criminal Procedure, effectiveDecember 1, 2000, adopted the provision contained in the1988 amendment. The revised rules added the following:

“If it is based on the ground that the facts charged donot constitute an offense, the prosecution shall be given bythe court an opportunity to correct the defect byamendment. The motion shall be granted if the prosecutionfails to make the amendment, or the complaint orinformation still suffers from the same defect despite theamendment.”

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Anent Motion to Quash, under the Revised Rules ofCriminal Procedure, the appropriate time to move to quashthe complaint or information is anytime before plea.(Section 1, Rule 117). It shall be in writing, signed by theaccused or his counsel and shall distinctly specify itsfactual and legal grounds. The court shall consider noground other than those stated in the motion, except lack ofjurisdiction over the offense charged. (Section 2). Section 3thereof provides other grounds for the Motion to Quash.

A Motion to Quash is the hypothetical admission of thefacts alleged in the information, ergo, the court in resolvingthe motion cannot consider facts contrary to those allegedin the information or which do not appear on the face of theinformation, except those admitted by the prosecution.

(People vs. Navarro, 75 Phil 516.)In the same vein, if the motion to quash is sustained, the

court may order that another complaint or information befiled except as provided in Section 6 of this Rule. If theorder is made, the accused, if in custody, shall not bedischarged unless admitted to bail. If no order is made or ifhaving been made, no new information is filed within thetime specified in the order or within such further time asthe court may allow for good cause, the accused, if incustody, shall be discharged unless he is also in custody foranother charge. (5a) (Section 5, Rule 117, Revised Rules ofCriminal Procedure).

What is the effect of sustaining the motion to quash?Section 6 explicitly provides that an order sustaining themotion to quash is not a bar to another prosecution for thesame offense unless the motion was based on the groundsspecified in section 3(g) and (i) of this rule. Section 3(g)refers to “that the criminal action or liability has beenextinguished.” Section 3(i) pertains to “that the accused hasbeen previously convicted or acquitted of the offensecharged, or the case against him was dismissed orotherwise terminated without his express consent.” (3a)

How about failure to move to quash or to allege anyground therefor? Section 9 thereof provides the answer. Itemphatically mandates that “the failure of the accused toassert any ground of a motion to quash before he pleads tothe complaint or information, either because he did not filea motion to quash or failed to allege the same in saidmotion, shall be deemed a waiver of any objections

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based on the grounds provided for in paragraphs (a), (b), (g)and (i) of section 3 of this Rule.

Paragraph (a)—that the facts charged do not constitutean offense.

Paragraph (b)—that the court trying the case has nojurisdiction over the offense charged.

Paragraph (g)—that the criminal action or liability hasbeen extinguished.

Paragraph (i)—that the accused has been previouslyconvicted or acquitted of the offense charged, or the case

a.)

b.)

c.)

d.)

e.)

against him was dismissed or otherwise terminatedwithout his express consent.

§ IV. Amendment as to Matter of Form

An amendment which neither adversely affects anysubstantial right of the accused (i.e. does not deprive him ofthe right to invoke prescription) nor affects and/or altersthe nature of the offense originally charged, nor involves achange in the basic theory of the prosecution so as torequire the accused to undergo any material change ormodification in his defense. (People vs. Rivera, 33 SCRA749).

In relation to this case being annotated, the FINALARBITER of die Land unequivocably stated that anamendment which merely states with additional precisionsomething which is already contained in the originalinformation, and which, therefore, adds nothing essentialfor conviction of the crime charged is an amendment as toform that can be made at anytime. Jurisprudence allowsamendments to information so long as:

it does not deprive the accused of the right toinvoke prescription (Vega vs. Panis, 117 SCRA 269);it does not affect or alter the nature of the offenseoriginally charged;it does not involve a change in the basic theory ofthe prosecution so as to require the accused toundergo any material change or modification in hisdefense;it does not expose the accused to a charge whichwould call for a higher penalty (People vs. Casey,103 SCRA 21); and

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it does not cause surprise nor deprive the accused ofan opportunity to meet the new averment.

Further, said the High Court, the allegation of time whenan offense is committed is a matter of form, unless time is

material ingredient of the offense.Thus, petitioner’s argument that the amendment

prejudiced his rights is untenable. We fail to see how hisoriginal defenses would be rendered inapplicable by theamendment, nor the prosecution’s theory in anyway alteredby the same. Petitioner failed to adduce any evidence insupport of his allegation that the amendment wouldadversely affect his rights.

Petitioner invokes Wong v. Yatco (99 Phil. 791), People v.Opemia (98 Phil. 698) and People v. Reyes (108 SCRA 203)in support of his cause. However, we hold that the ratiodecidendi of the three (3) cases does not apply in thepresent case.

In Wong the prosecution amended the Information of aviolation of Commonwealth Act No. 104 to change the datesof the violation from “May 3, 1954 to October 11, 1954” to“between January 2, 1955 and March 17, 1955.” The Courtdisallowed the amendment because in 1954, the lawpunishing the act had not been published yet, thereforethere was no crime in legal contemplation. The Court saidthat since an amended Information retroacted to the timeof the original one, the proper course would have been notto amend the previous Information but to file another one.This crucial fact is not involved here.

In Opemia the Court held, “the period of almost fiveyears between 1947 and 1952 covers such long stretch oftime that one may be led to believe that another theftdifferent from that committed by the defendants in 1952was also perpetrated by them in 1947. The variance iscertainly unfair to them, for it violates their constitutionalrights to be informed before the trial of the specific chargeagainst them and deprives them of the opportunity todefend themselves.”

In Reyes, this Court held that “the disparity of timebetween the years 1964 and 1969 is so great as to defyapproximation in the commission of one of the sameoffense.”

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The last two (2) cases involved changes in dates which wereso far removed from each other that substituting one for

the other would clearly work to the detriment of the rightof the accused to be informed of the nature and cause of thecharges against him. This is not so in the present case”. Forone, a comparison of the amended Information (January1991 to May 1992) and the original one (January 1991 toMay 1993) shows that the period stated in the former iseven shorter than and is included within the latter. Also,the averment “in or about and during the period” gives asufficient approximation of the date of the commission ofthe offense. Therefore, the first Information had adequatelyinformed petitioner of the period of time when the crimewas committed. No surprise, ergo, no violation of rights,could spring from merely replacing the original period,more so with one that is shorter and included within thesame.

§ V. Amendment as to Matter of Substance

Substantial amendments refer to amendments whichwould prejudice the rights of the accused more especiallythe right to the defense of double jeopardy. They are notinnocuous or mere clerical errors so to speak.

It relates to substance and the consent or acquiescenceby the accused to the substitution of a new complaintcharging another crime but predicated upon the same factsas the former complaint was fatally defective constitutes awaiver. (U.S. vs. Makinal, 4 Phil. 308).

An amendment that invariably changes the basic theoryof the prosecution by alleging a new way of committing theoffense partakes of the nature of a substantial amendment.Such actuation or amendment, if allowed, would engendersurprise upon the accused and will result to possibleinjustice. (People vs. Zulueta, 89 Phil. 752).

If there exists a doubt regarding the sufficiency of theinformation, the court may direct its amendment or thatthe new information be filed. (US vs. De Castro, 2 Phil.616).

Where the occurrence or act supervenes converting thecrime into a more serious one after the filing of the originalinformation,

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amendment can be had to charge the more serious offensewithout violating double jeopardy. (People vs. Petilla, 92Phil. 395).

The lack or absence in the information of a statement ofthe requisite certification by the fiscal (now prosecutor) ofhaving held a preliminary investigation is not fatal to theprosecution of the criminal case. (People vs. Gomez, 117SCRA 72).

Also, the filing of an amended information supersedesthe original information. Amended information is not a newinformation. (People vs. Taruc, 5 SCRA 132; May 30, 1962).

§ VI. Mistake In Charging The Proper Offense

When it becomes manifest at anytime before judgment thata mistake has been made in charging the proper offenseand the accused cannot be convicted of the offense chargedor any other offense necessarily included therein, theaccused shall not be discharged if there appears good causeto detain him. In such case, the court shall commit theaccused to answer for the proper offense and dismiss theoriginal case upon the filing of the proper information.(Section 19, Rule 119, Revised Rules of CriminalProcedure).

This provision is the same provision contained under the1985 Rules on Criminal Procedure, as amended, effectiveOctober 1, 1988.

Section 19 of the Rule 119 does not refer to any mistakein charging the proper offense. It pertains to such amistake whereby the accused cannot be convicted of theoffense charged, nor any other offense necessarily includedtherein. Hence, a new information should be filed chargingthe accused with the proper offense without discharginghim by keeping him under custody or under bail.

In U.S. vs. Campo, 23 Phil. 368, a new complaint orinformation charging ttie crime of bribery was filed insteadof robbery since the evidence constitutes the crime ofbribery.

§ VII. Variance Between Allegations and Proof

Section 4, Rule 120, Revised Rules of Criminal Procedure,effective December 1,2000 states that when there is a

variance between

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the offense charged in the complaint or information andthat proved, and the offense as charged is included in ornecessarily includes the offense proved, the accused shallbe convicted of the offense proved which is included in theoffense charged, or of the offense charged which is includedin the offense proved.

The words “established by evidence” contained under the1985 Rules on Criminal Procedure was not included underthe Revised Rules of Criminal Procedure.

When does an offense include or is included in another?Section 5 of the same rules provides the answer. Itexplicitly mentions that an offense charged necessarilyincludes the offense proved when some of the essentialelements or ingredients of the former as alleged in thecomplaint or information constitute the latter. And anoffense charged is necessarily included in the offenseproved when the essential ingredients of the formerconstitute or form part of those constituting the latter.

Otherwise stated, an accused charged with an offense isentitled to be informed of the nature and cause of theaccusation against him. There must be proof of guiltbeyond reasonable doubt. Variance between the allegationand proof cannot justify conviction for either the offensecharged or of the offense proved unless either is included inthe latter.

Also, an offense charged is said to necessarily include oris necessarily included in the offense proved when someessential components or elements of the offense chargedconstitute the offense proved or when the essentialingredients of the offense charged constitute or form part ofthose constituting the offense proved, then one offense isincluded in the other.

§ VIII. Double Jeopardy

“Non bis in idem”—no one shall be put in jeopardy ofpunishment for the same offense.

a.)

b.)

c.)

No one can be punished for his crime twice. Same isguaranteed under the Constitution. Section 21, Article 3thereof provides “No person shall be twice put in jeopardyof punishment for the same offense. If an act is punished bya law and an ordinance, conviction

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or acquittal under either shall constitute a bar to anotherprosecution for the same act.”

In implementing the above Constitutional mandate, theRevised Rules of Criminal Procedure (Section 7, Rule 117)succinctly provides that when an accused has beenconvicted or acquitted, or the case against him dismissed orotherwise terminated without his express consent by acourt of competent jurisdiction, upon a valid complaint orinformation or other formal charge sufficient in form andsubstance to sustain a conviction and after the accused haspleaded to the charge, the conviction or acquittal of theaccused or the dismissal of the case shall be a bar toanother prosecution for the offense charged, or for anyattempt to commit the same or frustration thereof, or forany offense which necessarily includes or is necessarilyincluded in the offense charged in the former complaint orinformation.

However, the conviction of the accused shall not be a barto another prosecution for an offense which necessarilyincludes the offense charged in the former complaint orinformation under any of the following instances:

the graver offense developed due to superveningfacts arising from the same act or omissionconstituting the former charge,the facts constituting the graver charge becameknown or were discovered only after a plea wasentered in the former complaint or information, orthe plea of guilty to the lesser offense was madewithout the consent of the prosecutor and of theoffended party except as provided in section 1 (f) ofRule 116.

a.)

b.)c.)d.)

1.

2.

3.

In any of the foregoing cases, where the accused satisfies orserves in whole or in part the judgment, he shall becredited with the same in the event of conviction for thegraver offense.

“Nemo bis vexari pro eadem causa”—No one ought to betwice tried for the same cause.

The elements of double jeopardy are, viz:

the accused individuals are charged under acomplaint or an information sufficient in form ansubstance to sustain their conviction;

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the court has jurisdiction;the accused had been arraigned and pleaded;they are convicted or acquitted or the case isdismissed without their express consent (People vs.CA, 308 SCRA 687.)

An appeal by the prosecution from a judgment or acquittalwould place the defendant in double jeopardy. (People vs.CA, 308 SCRA 687).

§ VIII. Notes

The rule that “an amendment which merelysupplements and amplifies facts originally allegedin the complaint relates back to the date of thecommencement of the action” does not apply to aparty who is impleaded for the first time in theamended complaint that was filed beyond theprescriptive period. (Republic vs. Sandiganbayan,293 SCRA 440).The fact that the fiscal (now prosecutor) charged six(6) persons in the information when the witnessesonly mentioned four is a defect in the informationwhich could be cured by an amendment thereof.(People vs. Tejero, 308 SCRA 660).The amendment of the information in order to

4.

5.

6.

7.

8.

allege the relationship of the accused to the victimcannot be done after the accused has pleaded to theinformation for simple rape without violating hisconstitutional rights, for such is clearly substantialin character having the effect of changing the crimecharged and exposing the accused to a higherpenalty. (People vs. Sandoval, G.R. Nos. 13262531,promulgated December 18, 2000).When an accused appeals from the sentence of thetrial court, he waives the constitutional safeguardagainst double jeopardy and throws the whole caseopen to the review of the appellate court—thisprecept should be borne in mind by every lawyer ofan accused who unwittingly takes the risk involvedwhen he decides to appeal his sentence. (People vs.Rondero, 320, SCRA 383).The doctrine of estoppel does not apply as againstthe people in criminal prosecutions. (Binay vs.Sandiganbayan, 316 SCRA 65).The remedy against an indictment that fails toallege the time of the commission of the offensewith sufficient definiteness is

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a motion for bill of particulars. (People vs.Magbanua, 319 SCRA 719).An infirmity in the information, such as lack ofauthority of the officer signing it, cannot be curedby silence, acquiescence or even by express consent.(Cudia vs. CA, 284 SCRA 173).It is doctrinal that the precise time of thecommission of an offense need not be alleged in thecomplaint or information unless time is an essentialelement of the crime charged. The phrase “on orabout” employed in the information does notrequire the prosecution to prove any precise datebut may prove any date which is not so remote as tosurprise and prejudice the defendant. (People vs.Bugayong, 299 SCRA 528).

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