VII.

AMENDMENT OR SUBSTITUTION OF THE COMPLAINT OR INFORMATION

Meaning of amendment

 In practical terms, an amendment is the correction of an error or an omission in a

complaint or an information
 Under Sec. 1, Rule 10 of the Rules of Court, it is effected by adding or striking out an
allegation or the name of any party, or by correcting a mistaken or inadequate
allegation or description in any other respect, so that the actual merits of the
controversy may speedily be determined, without regard to technicalities, and in the
most and expeditious and inexpensive manner.

Amendment of the information or complaint before plea; no need for leave (Bar
2001, 2002, 2013)

 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).
 Where the accused has not yet been arraigned, the RTC was correct in directing the
amendment of the information (Dabalos v. Regional Trial Court ).

When leave of court is required even if the amendment is made before plea (Bar
2001, 2011, 2013)

1. Leave of court is required even if the amendment is made before plea in the following
instances:
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, ROC).

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, ROC). This rule, requiring
notice to the offended party, is obviously intended to give the victim the opportunity to
object to the amendment.

3. The court is mandated by the Rules 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, ROC).

Note: Under the Revised Guidelines for Continuous Trial of Criminal Cases, a prosecutor
is allowed to file motion to withdraw the information, or to downgrade the charge in
the original information, or to exclude an accused originally charged therein, where the
motion filed is a result of a reinvestigation, reconsideration, and review (A.M. No. 15-
06-1-SC[2][c][i]).

Rule as to amendment made after the plea of the accused

1. If the amendment is made after the accused enters his plea 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, ROC).

Since the rule makes reference only to a formal amendment after the plea, the
phraseology of the rule indicates that an amendment in substance is, as a rule, clearly
not allowed at this stage. Obviously, this rule is designed for the benefit of the accused
who would be prejudiced by an amendment adversely affecting his defense.

2. Case law has it that before the accused enters his plea, a formal or substantial
amendment of the complaint or information may be made without leave of court.

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 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. CA).

When an amendment is formal or substantial (Bar 1997)

1. Whether or not an amendment, after the plea of the accused, is formal or substantial
cannot be circumscribed within a hard and fast rule. Recourse need be made to the
peculiar circumstances of each case.

2. It has, however, been held that an amendment to an information, which does not
change the nature of the crime alleged therein, does not affect the essence of the
offense, 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. CA)

3. The test as to when the rights of an accused are prejudiced by the amendment of a
complaint or information is, when a defense of the accused, under the original
complaint or information, 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, as amended.

Hence, a mere change in the date of the commission of the crime, if the
disparity is not great, is more formal than substantial. Such an amendment would not
prejudice the rights of the accused since the proposed amendments would not alter
the nature of the offense (Kummer u. People).

In Kummer v. People, the date of the commission of homicide was amended

from July 19, 1988 to June 19, 1988, or a difference of one month. The amendment,
according to the Court, did not change the nature of the crime, did not affect the
essence of the offense nor deprive the accused of an opportunity to meet the new
averment, and did not affect the defense of the accused. The Court, likewise, observed
that the defense, under the amended complaint, was still available after the
amendment.

An amendment changing the dates from "January 1991 to May 1993" to

"January 1991 to May 1992" was held to be merely a formal amendment (Gabionza v.
CA). By contrast, an amendment of the date from '1964' to '1969' was disallowed due
to the great disparity between the years. The disparity is accordingly, so great as to
defy approximation in the commission of one and the same offense (People v. Reyes).
(Bar 1992)

4. 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;

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 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. CA).

5. One famous case which illustrates the distinction between a formal and substantial
amendment particularly well is Pacoy v. Judge Afable Cajigal

The facts of the case disclose that 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.

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 (Pacoy v. Cajigal).

6. In another early case, involving qualified theft of a motor vehicle, the

prosecution sought to add habitual delinquency and recidivism in the original
information. In allowing the amendment, the Court observed that the amendment
desired related only to the range of the penalty that the court might impose in the
event of conviction. The amendments were held to be mere formal since they did not
have the effect of charging an offense different from the one charged in the
information or of changing the court's jurisdiction over the subject matter (Almeda v.

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 Judge Villaluz).

7. In one celebrated case, the prosecution sought during trial to amend the
information from frustrated to consummated murder since the victim died after the
information for frustrated murder was filed. The accused argued that the amendment
was a substantial one since it involved a change in the nature of the offense charged,
that is, from frustrated to consummated murder and after he had pleaded not guilty to
the charge of frustrated murder. The accused refused to be arraigned under the
amended information without the benefit of a new preliminary investigation.

In sustaining the admission of the amended information, the Court reasoned

that the additional allegation, that is, the supervening fact of the death of the victim,
was merely supplied to aid the trial court in determining the proper penalty for the
crime. There was, according to the Court, no change in the prosecution's theory that
the accused committed a felonious act with intent to kill the victim since frustrated
murder is but a stage in the execution of the crime of murder. Hence, the former is
necessarily included in the latter.

It is indispensable that the essential element of intent to kill, as well as

qualifying circumstances such as treachery or evident premeditation, be alleged in
both an information for frustrated murder and for murder. The same material
allegations are essential to the sufficiency of the informations filed for both. There is,
added the Court, an identity of offenses charged in both the original and the amended
information. The amendment would not be prejudicial to the accused because what is
involved is not a variance in the nature of different offenses charged, but only a
change in the stage of execution of the same offense from frustrated to consummated
murder. The nature of the offense originally charged was not actually changed. There
is also no question, the Court emphatically ruled, that whatever defense the accused
may adduce under the original information for frustrated murder equally applied to the
amended information for murder.

Since only a formal amendment was involved and introduced in the second
information, the Court concluded, that a preliminary investigation is unnecessary and
cannot be demanded by the accused (Teehankee v. Madayag).

8. An amendment of the information, after the accused was arraigned, to include

the allegation that by reason or on the occasion of the rape, the victim became insane,
is not a substantial amendment. The amendment merely raised the penalty and did
not charge another offense (People v. Degamo).

9. An issue presented in a 2007 case was whether or not four informations for
illegal recruitment could be amended and placed together under a single information
for 'illegal recruitment in a large scale.'

The accused contended that Sec. 14 of Rule 110 refers to an amendment of one
information only, not four. Besides, he argued, that the amendment into a single
information for a graver offense, violated his substantial rights.

In dismissing the contention, the Court clarified that al-though the rule uses the
singular word, complaint or information, it does not mean that two or more complaints
or informations cannot be amended into only one information. The interpretation of the
accused, if followed, would result into an absurd situation whereby two or more
informations can no longer be lumped into one information through an amendment.
Also, since it appeared that the amendment was sought before the accused entered
his plea, the four informations could still be amended (Fronda-Baggao v. People).

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 10. In a more recent case, an information was filed charging the petitioner with
violation of R.A. 8424 (Tax Reform Act of 1997) for non-filing of income tax returns for a
particular taxable year.

After the petitioner was arraigned and pleaded not guilty to the charge, the
prosecution filed a motion for leave to amend the information changing the locations
of the businesses of the petitioner and also adding another business operated by the
same petitioner. The petitioner claimed that the prosecution's amendment is a
substantial amendment prohibited under Sec. 14, Rule 110 of the Revised Rules of
Criminal Procedure. He further claimed that to change the allegation on the locations
of his business from San Fernando, Pampanga and Dagupan City to Muntinlupa and
Mandaluyong cities would cause surprise to him on the form of defense he would have
to assume.

The same is true, he argued, with the new allegation of another business since
it deprived him of the right, during the preliminary investigation, to present evidence
against the alleged operation and or existence of this entity. In sum, the amendments,
insisted the petitioner, sought substantial changes to the information to his prejudice.

Ruling on the issue raised by the petitioner, the Court instructed:

"There is no precise definition of what constitutes a substantial amendment. According to

jurisprudence, substantial matters in the complaint or information consist of the recital of
facts constituting the offense charged and determinative of the jurisdiction of the court.
Under Section 14, however, the prosecution is given the right to amend the information,
regardless of the nature of the amendment, so long as the amendment is sought before the
accused enters his plea, subject to the qualification under the second paragraph of Section
14.

XXX

Once the accused is arraigned and enters his plea, however, Section 14 prohibits the
prosecution from seeking a substantial amendment, particularly mentioning those that may
prejudice the rights of the accused. One of these rights is the constitutional right of the
accused to be informed of the nature and cause of accusation against him, a right which is
given life during the arraignment of the accused of the charge of against him. The theory in
law is that since the accused officially begins to prepare his defense against the accusation
on the basis of the recitals in the information read to him during arraignment, then the
prosecution must establish its case on the basis of the same information.

XXX

In short, amendments that do not charge another offense different from that charged in the
original one; or 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 are considered merely as
formal amendments.

XXX

In the present case, the amendments sought by the prosecution pertains to (i) the alleged
change in the date in the commission of the crime from 2001 to 2002; (ii) the addition of
the phrase "doing business under the name and style of Mendez Medical Group"; (iii) the
change and/ (iv) the addition of the phrase "for income earned." We cannot see how these
amendments would adversely affect any substantial right of the petitioner as accused
(Mendez u. People, G.R. No. 179962, July 11, 2014).

11. The insertion of the real name of the accused is merely a formal amendment since it
did not deprive the accused of a fair opportunity to present his evidence (People U
Padica).

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 12. The inclusion of an additional accused with the allegation that the additional accused
acted in conspiracy with the original accused, is only an amendment in form. There
was no change in the prosecution's theory that the original accused shot the victims.
His participation as principal in the crime charged could not be prejudiced by the
proposed amendments (People v. Court of Appeals,).

13. The additional allegation of conspiracy is only a formal amendment where the
participation of the accused as a principal is not affected by the amendment (Buhat v.
Court of Appeals,).

Examples of substantial amendments in old cases

1. In an early case, the accused was charged with homicide. After he had entered a not
guilty plea, the prosecution filed a motion for leave to amend the information to
murder qualified by treachery and evident premeditation.

While no explanation was offered by the prosecution for alleging evident

premeditation, the allegation of treachery was added since the same had, accordingly,
earlier appeared in the affidavit of the prosecution witness

The Court, ruling on the amendment, held:

"To amend the information, so as to change the crime charged from homicide to
the more serious offense of murder after the petitioner had pleaded not guilty to the
former, is indubitably proscribed x x x. For certainly, a change from homicide to
murder is not a matter of form; it is one of substance with very serious consequences"
(Dionaldo v. Dacuусuу).

2. In People v. Montenegro, the accused was arraigned for robbery. The prosecution
sought to amend the information from robbery to robbery in an uninhabited place.

The Court considered the amendment as substantial because it exposed the accused
to a higher penalty.

3. In People v. Sandoval, the Court considered as substantial an amendment, after the

accused was arraigned, to allege the relationship of the accused to the victim. This
accordingly exposed the accused to a higher penalty.

Substitution of the 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, ROC).

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

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 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.

Section 14, Rule 110 of the Rules of Court provides that 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 Sec. 19, Rule 119, provided the
accused shall not be placed in double jeopardy.

Thus, if it is shown that the proper charge against petitioners should have been
simple rebellion, the trial court shall dismiss the murder charges upon the filing of the
information for simple rebellion, as long as petitioners would not be placed in double
jeopardy (Ocampo v. Abando).

Distinction between substitution and amendment (Bar 1994)

 The pronouncements in Pacoy v. Cajigal, citing Teehankee v. Madayag, which

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

"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.

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 In determining, therefore, whether there should be an amendment under
the first paragraph of Sec. 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."

000

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