AMENDMENT OR SUBSTITUTION OF THE COMPLAINT OR INFORMATION

Amendment of the information or complaint before plea; no need for leave (Bar 2001; 2002)

If the amendment is made before the accused enters his plea, the complaint or information may be amended in form or in substance, without the need for leave of court (Sec. 14, Rule 110, Rules of Court).

When leave of court is required even if the amendment is made before plea

1. Leave of court is required even if made before plea if:

(a) the amendment downgrades the nature of the offense charged, or

(b) the amendment excludes any accused from the complaint or information (Sec. 14, Rule 110, Rules of Court).

CHAPTER in 101 PROSECUTION OF CIVIL ACTION

(Rule 111)

2. Aside from leave of court, the above amendments, require a motion by the prosecutor, with notice to the offended party (Sec. 14, Rule 110, Rules of Court).

3. The court is mandated by the rule to state its reasons in resolving the motion of the prosecutor and to furnish all parties, especially the offended party, of copies of its order (Sec. 14, Rule 110, Rules of Court).

Rule as to amendment made after the plea of the accused

1. If the amendment is made after the plea of the accused and during the trial, any formal amendment may only be made under two conditions, namely: (a) leave of court must be secured; and (b) the amendment does not cause prejudice to the rights of the accused (Sec. 14, Rule 110, Rules of Court).

Since the rule makes reference only to a formal amendment after the plea, the phraseology of the rule seems to indicate that an amendment in substance is, as a rule, clearly not allowed at this stage.

2. In a case, however, the Court held that before the accused enters his plea, a formal or substantial amendment of the complaint or information may be made without leave of court. After the entry of plea, only a formal amendment may be made but with leave of court and if it does not prejudice the rights of the accused. After arraignment, a substantial amendment is proscribed except if the same is beneficial to the accused (Ricarze v. Court of Appeals, G.R. No. 160451, February 9,2007 citing Matalam v.

Sandiganbayan, 455 SCRA 736).

When an amendment is formal or substantial (Bar 1997)

1. Thus, it has been held that the test as to whether a defendant is prejudiced by the amendment is whether a defense under the information as it originally stood would be available after the amendment is made, and whether any evidence defendant might have would be equally applicable to the information in the one form as in the other. An amendment to an information which does not change the

102 CRIMINAL PROCEDURE: THE BAR LECTURES SERIES UPDATED EDITION

nature of the crime alleged therein does not affect the essence of the offense or cause surprise or deprive the accused of an opportunity to meet the new averment had each been held to be one of form and not of substance. Thus, the substitution of the private complainant is not a substantial amendment where the substitution did not alter the basis of the charge in both informations, nor did it result in any prejudice to the other party. More so if the documentary evidences involved in the case remained the same, and all are available to the other party before trial (Ricarze v. Court of Appeals, G.R. No.

160451, February 9,2007).

2. On the other hand, the following have been held to be mere formal amendments: (1) new allegations which relate only to the range of the penalty that the court might impose in the event of conviction; (2) an amendment which does not charge another offense different or distinct from that charged in the original one; (3) additional allegations which do not alter the prosecution's theory of the case so as to cause surprise to the accused and affect the form of defense he has or will assume; (4) an amendment which does not adversely affect any substantial right of the accused; and (5) an amendment that merely adds specifications to eliminate vagueness in the information and not to introduce new and material facts, and merely states with additional precision something which is already contained in the original information and which adds nothing essential for conviction for the crime charged (Ricarze v. Court of Appeals, G.R. No. 160451, February 9,2007).

3. One case which illustrates the distinction between a formal and substantial amendment particularly well is Pacoy v. Judge Afable Cajigal, G.R.

No. 157472, September 28,2007. Here, upon arraignment, the accused, duly assisted by counsel de parte, pleaded not guilty to the charge of homicide.

However, on the same day and after the arraignment, the respondent judge issued another order directing the trial prosecutor to correct and amend the information to murder in view of the aggravating circumstance of disregard of rank alleged in the information which the judge considered as having qualified the crime to murder.

CHAPTER II PROSECUTION OF OFFENSES

(Rule 110)

103

Acting upon such order, 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. The accusatory portion remained exactly the same as that of the original information for homicide.

On the date scheduled for the re-arraignment of the accused for the crime of murder, the counsel for petitioner objected on the ground that the latter would be placed in double jeopardy, considering that his homicide case had been terminated without his express consent, resulting in the dismissal of the case. As the accused refused to enter his plea on the amended information for murder, the public respondent judge entered for him a plea of not guilty.

One of the issues sought to be resolved in the Supreme Court was whether or not the amendment from homicide to murder is a substantial one.

In resolving the issue, the Court ruled, that the change of the offense charged from homicide to murder is merely a formal amendment and not a substantial amendment or a substitution.

The Court ratiocinated that 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 the accused. Thus, the Court found the amendment made in the caption and preamble from "Homicide" to "Murder"

as purely formal.

Sec. 14, Rule 110 explained the Court, 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

104 CRIMINAL PROCEDURE: THE BAR LECTURES SERIES UPDATED EDITION

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 (Pacoy v. Cajigal, G.R. No. 157472, September 28,2007).

Substitution of complaint or information (Bar 2002)

1. A complaint or information may be substituted if it appears at any time before judgment that a mistake has been made in charging the proper offense. In such a case, the court shall dismiss the original complaint or information once the new one charging the proper offense is filed provided the accused will not be placed in double jeopardy. (Sec. 14, Rule 110, Rules of Court).

2, The dismissal of the original complaint or information is subject to the provisions of Sec. 19 of Rule 119. Under this provision, if it becomes manifest at any time before judgment that the accused cannot be convicted of the offense charged or of any other offense necessarily included therein, as when a mistake has been made in charging the proper offense, the court nevertheless, shall commit the accused to answer for the proper offense by requiring the filing of the proper information. The accused shall not be discharged if there appears good cause to detain him. After the proper information is filed, it shall dismiss the original case.

Distinction between substitution and amendment (Bar 1994)

The pronouncements in Pacoy v. Cajigal, G.R. No. 157472, September 28, 2007 citing Teehankee v. Madayag, G.R. No. 103102, March 6, 1992, 207 SCRA 134, which distinguish

CHAPTER II PROSECUTION OF OFFENSES

(Rule 110)

105

between amendment and substitution under Sec. 14 of Rule 110, are illuminating:

"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

106 CRIMINAL PROCEDURE: THE BAR LECTURES SERIES UPDATED EDITION

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."

- 0O0 —

Chapter III