The lower court ordered a dismissal of the case because the accused was not propertly informed of the day or about the day of the alleged commission of the offense charged. The Supreme Court affirmed the dismissal.

This is an appeal from an order of the Court of First Instance of the Fourteenth Judicial District sustaining a demurrer to an information and dismissing the case.

We are of the opinion that the order appealed from must be affirmed. The allegations of an information should, if possible, be sufficiently explicit and certain as to time to inform the defendant of the date on which the criminal act is alleged to have been committed. Unless the accused is informed of the day, or about the day, he may be, to an extent, deprived of the opportunity to defend himself.

X X X

In the case before us the statement of the time when the crime is alleged to have been committed is so indefinite and uncertain that it does not give the accused the information required by law. To allege in an information that the accused committed rape on a certain girl between October, 1910, and August, 1912, is too indefinite to give the accused an opportunity to prepare his defense, and that indefiniteness is not cured by setting out the date when a child was born as a result of such crime. Section 7 of the Code of Criminal Procedure does not warrant such pleading. Its purpose is to permit the allegation of a date of the commission of the crime as near to the actual date as the information of the prosecuting officer will permit, and when that has been done any date may be proved which does not surprise and substantially prejudice the defense. It does not authorize the total omission of a date or such an

indefinite allegation with reference thereto as amounts to the same thing.

(AFFIRMS A DEMURRER TO THE INFORMATION; CASE DISMISSED)

[United States vs. Javier Dichao., 27 Phil. 421(1914)]

Prosecutor was ordered to amend the information if possible without impairing Defendant’s rights. If he cannot, case must be dismissed. An information cannot be amended to conform to the evidence as this violated the right of the accused to be informed of the nature and cause of accusation against him.

“It is not necessary to state in the complaint or information the precise time at which the offense was committed except when time is a material ingredient of the offense, but the act may be alleged to have been committed at any time as near to the actual date at which the offense was committed as the information or complaint will permit.”

In line with this last mentioned rule, a variance of a few months between the time set out in the indictment and that established by the evidence during the trial has been held not to constitute an error so serious as to warrant reversal of a conviction solely on that score. Hence, where the information sets the date of commission of a robbery at March 25, 1900, evidence was allowed to show that the offense was actually perpetrated on the 5th or 6th of March; and an amendment of an information so as to change the year therein stated to that following it, was allowed it appearing that the alteration impaired none of the defendant’s rights.

Where, however, there was a variance of several years between the time stated in the information, 1947, and the proof of its actual commission adduced at the trial, 1952, the dismissal of the case by the Trial Court was sustained by this Court, since to allow amendment of the indictment to conform to the evidence would be violative of defendant’s constitutional right to be informed of the nature and cause of the accusation against him.

Again, the statement of the time of the commission of the offense which is so general as to span a number of years, i.e., “between October, 1910 to August, 1912,” has been held to be fatally defective because it deprives the accused an opportunity to prepare his defense.

X X X

From all that has been said, the conclusion should be clear. The information against petitioner Rocaberte is indeed seriously defective. It places on him and his co-accused the unfair and unreasonable burden of having to recall their activities over a span of more than 2,500 days. It is a burden nobody should be made to bear. The public prosecutor must make more definite and particular the time of the commission of the crime of theft attributed to Rocaberte and his co-defendants. If he cannot, the prosecution cannot be maintained, the case must be dismissed.

WHEREFORE, the petition is GRANTED, and the writ of certiorari prayed for is ISSUED, ANNULLING AND SETTING ASIDE the challenged Orders of respondent Judge dated August 12, 1985 and September 10, 1985 in Criminal Case No. 3851, and DIRECTING the amendment of the information in said case by the prosecution within such time as the respondent Judge may deem proper, failing which the criminal prosecution against the petitioner and his co-defendants shall be dismissed.

(PARTIALLY GRANTED. INFORMATION MUST BE AMENDED WITHOUT PREJUDICING THE DEFENDANT.)

[Rocaberte vs. People, 193 SCRA 152(1991)]

The variance in the date alleged and the date proven, even if the date is not an element of the offense charged, is a ground to acquit if it puts into doubt the sufficiency of the evidence.

Certainly, time is not an essential ingredient or element of the crime of rape. However, it assumes importance in the instant case since it creates serious doubt on the commission of the rape or the sufficiency of the evidence for purposes of conviction.

X X X

The materiality of the date cannot therefore be cursorily ignored since the accuracy and truthfulness of complainant’s narration of events leading to the rape practically hinge on the date of the commission of the crime.

X X X

Indeed, the failure of the prosecution to prove its allegation in the Information that accused-appellant raped complainant in 1992 manifestly shows that the date of the commission of the offense as alleged was based merely on speculation and conjecture, and a conviction anchored mainly thereon cannot satisfy the quantum of evidence required for a pronouncement of guilt, that is, proof beyond reasonable doubt that the crime was committed on the date and place indicated in the Information.

(ACQUITTED FOR REASONABLE DOUBT.)

[People vs. Ladrillo, 320 SCRA 61(1999)]

VARIANCE RULE: If the variance between the allegations in the information and the evidence established during the trial is substantial and material, the Defendant cannot be convicted.

It is fundamental that every element constituting the offense must be alleged in the information. The main purpose of requiring the various elements of a crime to be set out in the information is to enable the accused to suitably prepare his defense because he is presumed to have no independent knowledge of the facts that constitute the offense. The allegations of facts constituting the offense charged are substantial matters and an accused’s right to question his conviction based on facts not alleged in the information cannot be waived. No matter how conclusive and convincing the evidence of guilt may be, an accused cannot be convicted of any offense unless it is charged in the information on which he is tried or is necessarily included therein. To convict him of a ground not alleged while he is concentrating his defense against the ground alleged would plainly be unfair and underhanded. The rule is that a variance between the allegation in the information and proof adduced during trial shall be fatal to the criminal case if it is material and prejudicial to the accused so much so that it affects his substantial rights.

X X X

We find this variance material and prejudicial to petitioner which, perforce, is fatal to his conviction in the instant case.

X X X

If we were to approve of the method employed by the trial court in convicting petitioner, then we would be sanctioning the surprise and injustice that the accused’s constitutional right to be informed of the nature and cause of the accusation against him precisely seeks to prevent. It would be plain denial of due process.

In view of the foregoing, we rule that it was error to convict petitioner for acts which purportedly constituted the third essential element of the crime but which were entirely different from the acts alleged in the information because it violates in no uncertain terms petitioner’s constitutional right to be informed of the nature and cause of the accusation against him.

(ACQUITTED FOR REASONABLE DOUBT.)

[Andaya vs. People, 493 SCRA 539(2006)]