Memorandum

To: Hon. Pablito Perez

From: Tan, Tim R.

Rubio, Viktor Kevin S.
Taduran, Christian S.
Somera, Voltaire P.
Tamayo, Michael Angelo G.
Tambago, Trina G.

Subject: The Rule on Mistake in the Designation of the Offense

Charged in the Information

Date: August 11, 2018

I. History and Introduction

The right to be informed of the nature and cause of an accusation is

one of the fundamental rights of an accused guaranteed by the 1987
Constitution. Forming an integral part of criminal due process, such right
was adopted by the Constitution of the United States from the English Bill of
Rights of 1968.

Prior to the enactment of the English Bill of Rights, complaints were

allowed to be made orally—a practice under the common law that created
not only confusion, but public opprobrium on account of the deprivation of
rights of an accused. It is at this point that the people of Great Britain
demanded and received the Bill of Rights from the Prince and Princess of
Orange on 13 February 1688. (Pecho vs. People, G.R. No. 111399,
September 27, 1996)

Thus, in U.S. vs. Karelsen:

The bill of rights put an end forever to oral complaints, and

required that thereafter every person charged with the commission of
crime should not be brought to trial until after he had been informed
in writing, fully and plainly, of the nature of the offense with which he
was charged.

The object of this written accusation was—

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 First. To furnish the accused with such a description of the
charge against him as well enable him to make his defense; and
second, to avail himself of his conviction or acquittal for protection
against a further prosecution for the same cause; and third, to inform
the court of the facts alleged, so that it may decide whether they are
sufficient in law to support a conviction, if one should be had. (United
States v. Cruikshank, 92 U.S., 542.) In order that this requirement may
be satisfied, facts must be stated; not conclusions of law. Every crime
is made up of certain acts and intent; these must be set forth in the
complaint with reasonable particularity of time, place, names (plaintiff
and defendant), and circumstances. In short, the complaint must
contain a specific allegation of every fact and circumstance necessary
to constitute the crime charged. (U.S. vs. Karelsen, G.R. No. 1376,
January 21, 1904)

The Bill of Rights would later on be introduced to the Philippines by

virtue of Act No. 235, or the Philippine Bill of 1902. Eventually, it had been
adopted by the Jones Law and in the Constitutions of 1935, 1973, and 1987.
(Pecho v. People, G.R. No. 111399, September 27, 1996)

Section 14 (2) of Article III of the 1987 Constitution provides:

Section 14. (1) No person shall be held to answer for a criminal

offense without due process of law.

(2) In all criminal prosecutions, the accused shall be presumed

innocent until the contrary is proved, and shall enjoy the right to be
heard by himself and counsel, to be informed of the nature and cause
of the accusation against him, to have a speedy, impartial, and public
trial, to meet the witnesses face to face, and to have compulsory
process to secure the attendance of witnesses and the production of
evidence in his behalf. However, after arraignment, trial may proceed
notwithstanding the absence of the accused: Provided, that he has
been duly notified and his failure to appear is unjustifiable.

In accordance therewith, the Rules of Court provide that a complaint

or information is sufficient if it states the name of the accused; the
designation of the offense given by the statute; the acts or omissions
complained of as constituting the offense; the name of the offended party;
the approximate date of the commission of the offense; and the place where
the offense was committed. When an offense is committed by more than one
person, all of jthem shall be included in the complaint or information.
(Section 6 of Rule 110 of the Revised Rules of Criminal Procedure) The
complaint or information shall state the designation of the offense given by
the statute, aver the acts or omissions constituting the offense, and specify its
qualifying and aggravating circumstances. If there is no designation of the

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offense, reference shall be made to the section or subsection of the statute
punishing it. (Section 8 of Rule 110 of the Revised Rules of Criminal
Procedure)

II. Nature and Cause of Accusation against the Accused

As a general rule, mistake in the designation of the offense charged is

not a fatal error that is ipso facto unconstitutional.

What determines the real nature and cause of accusation against an

accused is the actual recital of facts stated in the information or complaint
and not the caption or preamble of the information or complaint nor the
specification of the provision of law alleged to have been violated, they
being conclusions of law. (Pecho v. People, G.R. No. 111399, September 27,
1996)

Throughout the history of Philippine jurisprudence, the Supreme

Court has been well-nigh absolute in consistently upholding the principle
that the facts alleged in the information is controlling over the designation of
offense likewise stated therein. As early as 1903 in U.S. v. Li-Dao, G.R. No.
1316, August 29, 1903, and up until today, the Court has been steadfast in
sustaining the aforementioned principle.

Of peculiar note, however, is that mere months prior to Li-Dao, the

same Court took a contradicting stand, though without any discussion to
support such. In U.S. v. Dinsing, G.R. No. 1012, February 19, 1903, it was
simply held that where a complaint designates a crime as homicide
(homicidio) but then alleges facts which constitute murder (asesinato), there
can be no conviction of the latter crime. Both the Li-Dao and Dinsing
decisions were anchored on the prevailing code of criminal procedure of the
time--General Orders No. 58. Likewise, both decisions enjoyed the
concurrence of Justices Cooper, Mapa, Torres, and of Chief Justice Arellano.

The Dinsing ruling, however, appears to be a stray decision. The

Court in U.S. v. Campo, observed thus:

Except in a very early case (U.S. v. Dinsing, 1 Phil. Rep. 738),

wherein a contrary view appears to have been taken apparently
without extended discussion, but which has long since been overruled,
we have uniformly and frequently laid down the rule that an accused
person may be convicted of "any crime described and charged by the
facts set out in the information" irrespective of and without regard to
the designation or characterization of the crime set forth in the title of
the complaint or information by the private complainant or the public
prosecuting officer. (U.S. v. Campo, G.R. No 7321, November 5,
1912)
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 To date, no such aberrant decision as in Dinsing has been reiterated by
the Court in any other subsequent case.

In U.S. v. Lim San, the accused was charged in the Court of First
Instance after assaulting the victim, Keng Kin, with a bolo and inflicting
upon him several wounds, one of which would have been fatal had it not for
the prompt and efficient medical assistance given to latter. The crime
designated in the pleading is that of ‘attempted murder’ but the facts set out
in the body of the information point to that of ‘frustrated murder’. The Court
reversed the ruling of the trial court and convicted Lim San of ‘frustrated
murder’ notwithstanding the fact that in the designation of the crime in the
information, it is only in the attempted stage. It ruled that the caption of the
information, which is only the characterization of the crime by the fiscal, is
immaterial and what must determine the crime for which the accused must
be prosecuted are the facts stated in the body of the pleading. The Court
explained that:

From a legal point of view, and in a very real sense, it is of no

concern to the accused what is the technical name of the crime of
which he stands charged. It in no way aids him in a defense on the
merits… The real question is not did he commit a crime given in the
law some technical and specific name, but did he perform the acts
alleged in the body of the information in the manner therein set forth.
If he did, it is of no consequence to him, either as a matter of
procedure or of substantive right, how the law denominates the crime
which those acts constitute… If the accused performed the acts
alleged in the manner alleged, then he ought to be punished and
punished adequately, whatever may be the name of the crime which
those acts constitute. (U.S. v. Lim San, G.R. No. L-5335, November 8,
1910)

This ruling was upheld in the case of US v. Burns, wherein Burns was
convicted with the complex crime of arson with homicide after burning the
car and the house of Pedro de la Cruz which resulted to the latter’s death,
even though the designation of the crime in the information is only that of
arson under Article 549 of the Penal Code. The Court reiterated that it is the
facts alleged in the body of the information which is controlling and not the
technical name given by the fiscal in the title and thus, an accused may be
convicted of a more serious crime than what is indicated in the preliminary
part of the pleading so long as such crime is necessarily included in the
factual allegations in the body of the information. (US v. Burns, G.R. No.
16648, March 5, 1921)

In People v. Oliveria, defendant was charged with violation of section

53 and 70 of Commonwealth Act No. 1, for having failed and refused to
register for military training, he being a Filipino citizen 20 years of age.
Defendant demurred to the information, among several grounds, that law
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had been repealed. The CFI of Bataan sustained the demurrer. The Order
was reversed by the Court on the ground that the repelead and repealing laws
are the same. It was emphasized that it is a well settled rule that the real
nature of the crime charged is determined not by the title of the complaint,
nor by the specification of the provision of law alleged to have been violated,
but by the facts alleged in the complaint or information. (People v. Oliveria,
G.R. No. 45715, April 20, 1939)

In People v. Arnault, it was contended that section 121 of the

National Internal Revenue Code mentioned in the information is not
applicable because it obviously refers to gift taxes, and that what is
applicable is section 73 of the same code regarding income tax. The Court
ruled that the accused could still be held liable under section 73, because the
error in specifying the wrong provision of law applicable does not vitiate the
information. As cited in the case of People v. Oliveria, the real nature of the
crime charged in an information or complaint is determined facts alleged.
(People v. Arnault, G.R. No. L-4288, November 20, 1952)

In Soriano v. Sandiganbayan, where the City Fiscal of Quezon City

was indicted for a violation of Section 3(b) of Republic Act No. 3019,
otherwise known as the Anti-Graft and Corrupt Practices Act, after he
demanded P4,000.00 from a person accused of qualified theft as the price for
dismissing the case, the Supreme Court agreed with the petitioner Fiscal that
he could not be convicted of Section 3(b) of the aforementioned law because
the preliminary investigation of a criminal complaint is not the “contract” or
“transaction” within the contemplation of law.

Nonetheless, the Supreme Court convicted him of bribery as defined

and penalized by Article 210 of the Revised Penal Code, because “a reading
of the information which has been reproduced herein clearly makes out a
case of bribery so that the petitioner cannot claim deprivation of the right to
be informed.” (Soriano v. Sandiganbayan, G.R. No. L-65952, July 31, 1984)

In another case, the Supreme Court held that although the petitioner
could not be held guilty for violating Section 3(e) of R.A. No. 3019, as
amended, because the law refers to a consummated act, the accused could
nevertheless be convicted of the complex crime of attempted estafa through
falsification of official and commercial documents under Article 315 (2) (a)
of the Revised Penal Code. (Pecho vs. People, G.R. No. 111399, November
14, 1994)

Again in Pactolin v. Sandiganbayan, the Court sustained the ruling of

the Sandiganbayan convicting the petitioner therein of a violation of Article
172 of the Revised Penal Code, notwithstanding that the information filed
against him was for a violation of Article 171 of the same.

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 The Court concluded that the information contained averments that
alluded to both Articles 171 and 172.

To the argument of the petitioner that he was deprived of his right to

be informed of the nature and cause of the accusation against him, the Court
replied therein:

“The headings in italics of the two articles are not controlling.

What is controlling is not the title of the complaint, or the designation
of the offense charged or the particular law or part thereof allegedly
violated, but the description of the crime charged and the particular
facts therein recited. The character of the crime is not determined by
the caption or the preamble of the information or by the specification
of the provision of law alleged to have been violated, but by the recital
of the ultimate facts and circumstances in the complaint or
information. In this case, the Amended Information encompasses the
acts of Pactolin constitutive of a violation of Art. 172 in relation to par.
2 of Art. 171 of the RPC.” (Pactolin v. Sandiganbayan, G.R. No.
161455, May 20, 2008)

In Malto v. People, petitioner was convicted for violation violation of

Section 5 (b), Article III, RA 7610, even if he was charged for violation of
Section 5 (a) thereof, even if the trial and appellate courts followed the
wrong designation of the offense, petitioner could be convicted of the
offense on the basis of the facts recited in the information and duly proven
during trial. It was stated that the “the failure to designate the offense by
statute, or to mention the specific provision penalizing the act, or an
erroneous specification of the law violated does not vitiate the information if
the facts alleged clearly recite the facts constituting the crime charged”.
(Malto v. People, G.R. No. 164733, September 21, 2007)

In Pielago y Ros v. People, the Supreme Court convicted petitioner of

the crime of rape by sexual assault penalized under Article 266-A (2), even
if the original designation of the offense in the Information was for crime of
acts of lasciviousness in relation to Section 5 (b) of R.A. No. 7610. (Pielago
y Ros v. People, G.R. No. 202020, March 13, 2013)

III. Raising the Issue of Defective Complaint or Information

If the complaint or information is insufficient, one may move before

arraignment either for a bill of particulars to enable him properly to plead
and to prepare for trial or quashal of the complaint or information if there are
sufficient grounds to do so. (Rules of Court, Rule 116, Section 6; Rules of
Court, Rule 117, Section 3)

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 The failure of the accused to assert any ground of a motion to quash
before he pleads to the complaint or information, either because he did not
file a motion to quash or failed to allege the same in said motion, shall be
deemed a waiver of any objections based on the grounds provided for in
paragraphs (a), (b), (g), and (i) of section 3 of the Revised Rules of Criminal
Procedure. (Rules of Court, Rules 117, Section 9)

The right to question the sufficiency of the information is not absolute.

If the party fails or neglects to assert his right warrants the presumption that
said party has abandoned or declined to assert it. This has been consistently
supported by the Court through many decades. (Suy Sui v. People, G.R. No.
L-5278, February 17, 1953; Frias, Sr. v. People, G.R. No. 171437, October
4, 2007; People v. Mamaruncas, G.R. No. 179497, January 25, 2012;
People v. Morilla, G.R. No. 189833, February 5, 2014)

The Supreme Court sitting en banc and affirming past decisions of

this rule, explains the failure of raising such a defect in lucid terms:

“...it will be noted that appellant entered a plea of not guilty to

each of the informations charging him of rape. Thus, he had
effectively waived his right to question any irregularity which might
have accompanied his arrest and the unlawful restraint of his liberty.”
(People v. Calimlim, G.R. No. 123980, August 30, 2001)

“Their claim that they requested an extension of time to file a

motion to quash the information or to dismiss the case, which the trial
court allegedly denied, cannot save the day for them. The fact remains
that before arraignment, no such motion was filed. Even assuming
that their arrest was illegal, their act of entering a plea during their
arraignment constituted a waiver of their right to question their
arrest.” (People v Cachola G.R. Nos. 148712-15, January 21, 2004)

IV. Rules in Criminal Procedure: Designation of the Offense is Not

Controlling but the Allegations Therein

A. Not a Fatal Defect in the Information

The Court declares clearly in People v. Navarro:

“A mistake in the caption of an indictment in designating the

correct name of the offense is not a fatal defect, for the sufficiency of
the averments of the charging part that is the gist of the accusation.
(State v. Emmons, 106 P 452’ 6 Words and Phrases 233.) It is almost
the universal rule that the caption of a pleading is not controlling but

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 what is embodied therein. More, the office of a caption is to declare
the purpose of the acts, and if the matter mentioned in the caption is
not contained in the body of the act, it is mere a surplusage, and does
not affect the matters set forth in the act itself. Captions are purely
formal, and may be amended.” (People v. Navarro, G.R. No. L-38453-
54, March 25, 1975)

B. Description Controlling, Not Particular/Technical Name

Concluded by the Prosecutor

As stated in People v. Banihit:

“It is not the designation of the offense in the information that is

controlling but the allegations therein which directly apprise the
accused of the nature and cause of the accusation against him.
Therefore, the accused-appellant’s constitutional right to be informed
of the nature and cause of the the accusation against him was not
violated, notwithstanding that the preamble of the information stated
that he was being charged with rape of a woman who was under
twelve years of age or who was demented. As stated, this was a mere
conclusion of law made by the prosecutor who prepared the
information. It must be stressed that the acts described in the body of
the information clearly accused him of raping his niece, a relative by
consanguinity within the third civil degree who was a minor. That was
sufficient to apprise him of the specific charge against him, and enable
him to prepare his defense.”

“... what is controlling in an Information should not be the title

of the complaint, nor the designation of the offense charged or the
particular law or part thereof allegedly violated, these being by and
large, mere conclusions of law made by the prosecutor, but the
description of the crime charged and the particular facts recited…”

“In the event, however, that the appellation of the crime

charged as determined by the public prosecutor, does not exactly
correspond to the actual crime constituted by the criminal acts
described in the information to have been committed by the accused,
what controls is the description of the said criminal acts and not the
technical name of the crime supplied by the prosecutor.”

“As this Court, through Justice Moreland’s authoritative

disquisition has held… ‘In other words, the real nature of the criminal
charge is determined not from the caption or preamble of the
information nor from the specification of the provision of the law
which in no way affect the legal aspects of the information, but from

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 the actual recital of facts as alleged in the body of information.”
(People v. Banihit, G.R. No. 132045, August 25, 2000)

This case would then be cited later in the case of People v. Amistoso:

“Amostoso was specifically charged in the Information with

statutory rape under Article 266-A, paragraph (1)(d) of the Revised
Penal Code, as amended. It is undisputed that AAA was over 12 years
old on July 10, 2000, thus, Amistoso cannot be convicted of Statutory
Rape. Nonetheless, it does not mean that Amistoso cannot be
convicted of rape committed under any of the other circumstances
described by Article 266-A, paragraph 1 of the Revised Penal Code,
as amended, As long as the facts constituting the same are alleged in
the information and proved during the trial”

“What is controlling in an information should not be the title of

the complaint, nor the designation of the offense charged or the
particular law or part thereof already violated, these being by and
large, mere conclusions of law made by the prosecutor, but the
description of the crime charged and the particular facts recited
therein.” (People v. Amistoso, G.R. No. 201447, January 9, 2013)

This case was cited again in the 2015 case of People v. Bayabos
penned by Chief Justice Maria Lourdes Sereno:

“Plain reference to a technical term - in this case, hazing - is

insufficient and incomplete, as it is but a characterization of the acts
allegedly committed and thus a mere conclusion of law.” (People v.
Bayabos, G.R. No. 171222, February 18, 2015)

C. Available Remedy: Amend the Information

In the case of Sy v. Gutierrez

“While recognizing the mistake in the designation of the

offense committed because it should have been robbery in an
inhabited place, the CA held that the mistake can be remedied by the
amendment of the information.”

In this particular case, it is to be noted that the word used is

“amendment.” This is important as this has to be distinguished with
“substitution.” (Sy v. Gutierrez, G.R. 171579, November 14, 2012)

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 There are at least two provisions in the Rules of Court that tap the
propriety of an amendment or substitution in case there is a mistake in
charging the proper offense, to wit -

Section 14, Rule 110 of the Rules of Court:

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 of the accused.

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 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.

Section 19, Rule 119 of the Rules of Court

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 necessarily included
therein, the accused shall not be 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
proper information.

According to Teehankee v. Madayag:

“in determining 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…”
(Teehankee v. Madayag, G.R. No. 103102, March 6, 1992)

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 To illustrate, the case of Pacoy v. Cajigal, is in order. The Supreme
Court ruled in the said case:

“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, 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. Thus, we find that the amendment
made in the caption and preamble from ‘Homicide’ to ‘Murder’ as
purely formal.” (Pacoy v. Cajigal, G.R. No. 157472, September 28,
2007)

In other words, the law allowing an amendment to an information is

merely permissive in nature as can be gleaned by the use of the word “may”
in the provision. Thus, it is an option that is available to the party, and it is a
mere formality. This means that it will not be a fatal defect to the
information if not amended to the proper designation as “there was no
change in the recital of facts… and the averments are exactly the same.” The
amendment may even proceed after the plea of the accused, just as it will not
prejudice the rights of the accused which will happen if the defense available
to the original information will not be available to the amended information.

On the other hand, substitution enshrined in the second paragraph of

Sec 14 Rule 110 takes on a mandatory nature as the court “shall dismiss the
original complaint or information upon filing of a new one charging the
proper offense.” In this kind, it is not a mere change of nomenclature of the
crime. This entails a substantial change from the original charge, and it must
be done with leave of court as the original information has to be dismissed.
It goes down to the allegations in the information, and not merely the
designation or name of the offense. When the mistake is deep down to its
allegations, it is a fatal defect and a substitution is in order.

V. References

Frias, Sr. v People, G.R. No. 171437, October 4, 2007

Malto v. People, G.R. No. 164733, September 21, 2007
Pacoy v Cajigal, G.R. No. 157472, September 28, 2007
Pactolin v Sandiganbayan, G.R. No. 161455, May 20, 2008
Pecho v People, G.R. No. 111399, September 27, 1996

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Pielago y Ros v People, G.R. No. 202020, March 13, 2013
People v Amistoso, G.R. No. 201447, January 9, 2013
People v Arnault, G.R. No. L-4288, November 20, 1952
People v Banihit, G.R. No. 132045, August 25, 2000
People v Bayabos, G.R. No. 171222, February 18, 2015
People v Cachola G.R. Nos. 148712-15, January 21, 2004
People v Calimlim, G.R. No. 123980, August 30, 2001
People v Mamaruncas, G.R. No. 179497, January 25, 2012
People v Morilla, G.R. No. 189833, February 5, 2014
People v Navarro, G.R. No. L-38453-54, March 25, 1975
People v Oliveria, G.R. No. 45715, April 20, 1939
Soriano v Sandiganbayan, G.R. No. L-65952, July 31, 1984
Suy Sui v People, G.R. No. L-5278, February 17, 1953
Sy v Gutierrez, G.R. 171579, November 14, 2012
Teehankee v Madayag, G.R. No. 103102, March 6, 1992
The Revised Rules of Criminal Procedure
United States v. Cruikshank, 92 U.S., 542
U.S. v Burns, G.R. No. 16648, March 5, 1921
U.S. v Campo, G.R. No 7321, November 5, 1912
U.S. v Dinsing, G.R. No. 1012, February 19, 1903
U.S. v Li-Dao, G.R. No. 1316, August 29, 1903
U.S. v Lim San, G.R. No. L-5335, November 8, 1910
U.S. v Karelsen, G.R. No. 1376, January 21, 1904

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