Amendment/Substitution of Information

1. Within the context of the rule on Criminal Procedure, distinguish an amendment from a substitution of
an Information. (1994, #3)

Answer:
An amendment may be made in substance and form, without leave of court, at any time before
an accused pleads, and thereafter and during the trial as to all matters of form, by leave and at the
discretion of the court, when the same can be done without prejudice to the rights of the accused.
Substitution may be made if it appears at any time before judgment that a mistake has been made in
charging the proper offense, in which case, the court shall dismiss the complaint or information upon
filing of a new one charging the proper offense in accordance with Rule 119, Section 11, provided that the
accused would not be placed thereby in double jeopardy and may also required the witnesses to give bail
for their appearance at the trial.

2. A was accused of homicide for the killing of B. During the trial, the public prosecutor received a copy of
the marriage certificate of A and B.
a) Can the public prosecutor move for the amendment of the information to charge A with the crime of
parricide?(1997, #9)

Answer:
No. The information cannot be amended to change the offense charged from homicide to
parricide. Firstly, the marriage is not a supervening fact arising from the act constituting the charge of
homicide. Secondly, after plea, amendments may be done only as to matters of form. The amendment is
substantial because it will change the nature of the offense.

In the trial of a HOMICIDE case, the fiscal was able to prove treachery and evident
premeditation without objection on the part of the defense. By reason thereof, the fiscal
moved to amend the Information invoking the provision of the Rules of Court which allows
amendment of the pleadings to conform to the evidence. He then filed an amended
Information changing homicide to that of murder which, however, was vehemently objected
to by the defense.
a) Resolve the merits of the fiscal’s motion to amend.
b) Suppose instead of allowing the amendment prayed for, the Judge dismissed the
case and ordered the filing of a new Information for MURDER, is the order legally
assailable? Reasons. (1985, #9)
Answer:
a) The fiscal’s motion to amend the information to conform to the evidence is denied.
Such an amendment is allowed only in civil cases. A substantial amendment of the
information is allowed only before the accused pleads.
b) Yes, the dismissal of the original information and the filing of a new one for murder
is proper if the accused would not be placed thereby in double jeopardy. In this case the
accused would be placed in double jeopardy because homicide is necessarily included in
murder.

In that same less serious physical injury case, suppose BC upon arraignment pleaded GUILTY
and credited with the additional mitigating circumstance of voluntary surrender, was
sentenced to one month of arresto menor. After service of the penalty, however, the victim
died.
a) As the fiscal in charge of the case, what procedural steps will you undertake with
the victim’s death? Explain.
b) May BC set-up the defense of double jeopardy in any subsequent prosecution
brought about by the victim’s death. Discuss.(1985, #8)
Answer:
a) I would conduct a PI to determine if the death of the victim was due to the less
serious physical injuries inflicted upon him by BC. If such was the case, I would file an
information against BC for homicide.
b) No, because one of the exceptions to the defense of double jeopardy is that the
graver offenses developed due to the supervening fact arising from the same act
constituting the former charge. The subsequent death of the victim is such a new
supervening fact.

Upon arraignment, A pleaded not guilty to the charge of serious physical injuries. Ten days
later, the victim died. Hence, the fiscal moved for the amendment of the information so as
to charge the accused with the crime of homicide. The accused objected on the ground that
he had been put in jeopardy of being convicted of the crime of serious physical injuries; and
that another prosecution for homicide for the same act under an amended information
would constitute double jeopardy.
If you were the judge, how would you resolve the motion? Explain.(1984,#13)
Answer:
I would grant the fiscal’s motion for the amendment of the information.
The amendment will not put the accused in double jeopardy. The circumstance that
the victims death supervened the accused’’s plea of not guilty to the charge for serious
physical injuries takes the case out of the rule of identity. There was no possibility, no risk
that the accused could have been convicted under the original information of the crime of
homicide for that crime was inexistent at the time he pleaded not guilty to the charge of
serious physical injuries.
Another Answer:
I would grant the motion. The objection of A on the ground of double jeopardy is not
tenable, because the death of the victim after A had pleaded not guilty is a new supervening
fact for which A was responsible, which changes the character of the offense and, together
with the facts existing at the time, constitute a new and distinct offense. Hence, A cannot be
said to be in double jeopardy if charged with the new offense. In other words, the rule of
identity of offenses as a requisite for double jeopardy does not apply when the second
offense was not yet in existence at the time of the first prosecution.
The accused was charged of qualified theft of a motor vehicle which is described in the
information to be a Ford Fiera, Model 1974, with plate number S-100 belonging to X. Upon
arraignment, the accused entered a plea of not guilty. Thereafter, the fiscal filed an
amended information specifying the motor number of the motor vehicle. Over the objection
of the accused that he had not been arraigned on the amended information, the trial court
proceeded with the trial and convicted the accused on the amended information. The
accused appealed. Decide the case with reasons. (1975, #12)
Answer:
The appeal of the accused should be decided in his favor. The action of the court in
proceeding to trial without re-arraigning the accused on the amended information despite
the objection of the accused is a reversible error.
When an amended information is filed, it supersedes the original, and the accused
must be arraigned, or re-arraigned with respect to the information as amended. Hence,
where the information read to the accused was not the amended information but the original
information, his conviction under the former suffers from a reversible defect for lack of
arraignment. The accused has not waived his right to formal arraignment under the second
information inasmuch as he had objected or called the attention of the trial court to the
omission, and his reminder amounted to an objection.
The provisions of Section 1, Rule 116 are mandatory in their terms. Accordingly, a
judgment of the trial court rendered without complying with said provision, should be
reversed and remanded to the trial court for the purpose of a new trial.