Case Digest: Pacoy vs. Cajigal, G.R. No. 157472, September 28, 2007

                             Rule 119: Trial, Amendment | Criminal Procedure

Facts:

An information for Homicide was filed against petitioner SSGT. Jose M. Pacoy for shooting and killing 2Lt. Frederick Esquita.

Petitioner pleaded not guilty to the charge of Homicide during arraignment.

On the same day, respondent judge Afable Cajigal issued an order directing the trial prosecutor to correct and amend the Information to Murder based on the aggravating circumstance of disregard of rank.

The prosecutor amended the Information to reflect Murder but with the same content as the original Homicide charge,  with the correction of the spelling of the victim’s name from "Escuita" to "Escueta."

When petitioner was to be re-arraigned for Murder, his counsel objected, claiming double jeopardy since the Homicide case had been terminated without his consent.

Respondent judge entered a plea of not guilty on behalf of petitioner for the amended charge of Murder.

Petitioner filed a Motion to Quash, asserting double jeopardy.

Respondent judge denied the Motion to Quash, stating that no valid proceedings could be taken on the patently insufficient Information for Homicide.

Petitioner filed a Motion to Inhibit and a Motion for Reconsideration.

Respondent judge denied the Motion to Inhibit and granted the Motion for Reconsideration, reverting the charge to Homicide.

Respondent judge concluded that "disregard of rank" is a generic mitigating circumstance and should not elevate Homicide to Murder.

Issue:

WoN respondent judge gravely abused his discretion when he denied the Motion to Quash.  (NO)

Held:

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.

x x x

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. For this purpose, Teehankee v. Madayag is instructive, viz:

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.

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.

Next, we determine whether petitioner was placed in double jeopardy by the change of the charge from Homicide to Murder; and subsequently, from Murder back to Homicide. Petitioner's claim that the respondent judge committed grave abuse of discretion in denying his Motion to Quash the Amended Information for Murder on the ground of double jeopardy is not meritorious.

Petitioner's Motion to Quash was anchored on Section 3, Rule 117 of the Rules of Court, which provides:

SEC. 3. Grounds. - The accused may move to quash the complaint or information on any of the following grounds:

x x x x

(i) That the accused has been previously convicted or acquitted of the offense charged, or the case against him was dismissed or otherwise terminated without his express consent.

Section 7 of the same Rule lays down the requisites in order that the defense of double jeopardy may prosper, to wit:

SEC. 7. Former conviction or acquittal; double jeopardy. — When an accused has been convicted or acquitted, or the case against him dismissed or otherwise terminated without his express consent by a court of competent jurisdiction, upon a valid complaint or information or other formal charge sufficient in form and substance to sustain a conviction and after the accused had pleaded to the charge, the conviction or acquittal of the accused or the dismissal of the case shall be a bar to another prosecution for the offense charged, or for any attempt to commit the same or frustration thereof, or for any offense which necessarily includes or is necessarily included in the offense charged in the former complaint or information.

Thus, there is double jeopardy when the following requisites are present: 

(1) a first jeopardy attached prior to the second; 

(2) the first jeopardy has been validly terminated; and 

(3) a second jeopardy is for the same offense as in the first.

As to the first requisite, the first jeopardy attaches only 

(a) after a valid indictment; 

(b) before a competent court; 

(c) after arraignment; 

(d) when a valid plea has been entered; and 

(e) when the accused was acquitted or convicted, or the case was dismissed or otherwise terminated without his express consent.

It is the conviction or acquittal of the accused or the dismissal or termination of the case that bars further prosecution for the same offense or any attempt to commit the same or the frustration thereof; or prosecution for any offense which necessarily includes or is necessarily included in the offense charged in the former complaint or information.

Petitioner's insistence that the respondent judge dismissed or terminated his case for homicide without his express consent, which is tantamount to an acquittal, is misplaced.

Dismissal of the first case contemplated by Section 7 presupposes a definite or unconditional dismissal which terminates the case. And for the dismissal to be a bar under the jeopardy clause, it must have the effect of acquittal.

The respondent judge's Order dated September 12, 2002 was for the trial prosecutor to correct and amend the Information but not to dismiss the same upon the filing of a new Information charging the proper offense as contemplated under the last paragraph of Section 14, Rule 110 of the Rules of Court -- which, for convenience, we quote again --

If it appears at anytime 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 section 19, Rule 119, provided the accused shall not be placed in double jeopardy. The court may require the witnesses to give bail for their appearance at the trial.

and Section 19, Rule 119, 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.

Evidently, the last paragraph of Section 14, Rule 110, applies only when the offense charged is wholly different from the offense proved, i.e., the accused cannot be convicted of a crime with which he was not charged in the information even if it be proven, in which case, there must be a dismissal of the charge and a substitution of a new information charging the proper offense. Section 14 does not apply to a second information, which involves the same offense or an offense which necessarily includes or is necessarily included in the first information. In this connection, the offense charged necessarily includes the offense proved when some of the essential elements or ingredients of the former, as alleged in the complaint or information, constitute the latter. And an offense charged is necessarily included in the offense proved when the essential ingredients of the former constitute or form a part of those constituting the latter.

Homicide is necessarily included in the crime of murder; thus, the respondent judge merely ordered the amendment of the Information and not the dismissal of the original Information. To repeat, it was the same original information that was amended by merely crossing out the word "Homicide" and writing the word "Murder," instead, which showed that there was no dismissal of the homicide case.

Anent the last issue, petitioner contends that respondent judge gravely abused his discretion in ordering that the original Information for Homicide stands after realizing that disregard of rank does not qualify the killing to Murder. That ruling was again a violation of his right against double jeopardy, as he will be prosecuted anew for a charge of Homicide, which has already been terminated earlier.

We are not convinced. Respondent judge did not commit any grave abuse of discretion.

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.