VOL.

355, MARCH 30, 2001

769

Amendments of Complaints or Information

ANNOTATION
AMENDMENTS OF COMPLAINTS OR INFORMATION
By
*
IGMIDIO CUEVAS LAT
________________
I. Introduction, p. 769
II. Amendments, p. 770
III. Related Provisions, p. 773
IV. Amendment as to Matter of Form, p. 775
V. Amendment as to Matter of Substance, p. 777
VI. Mistake in Charging the Proper Offense, p.
778
VII. Variance Between Allegations and Proof, p.
778
VIII. Double Jeopardy, p. 779
IX. Notes, p. 781

I. Introduction
Subject of this annotation is the case of Dennis T.
Gabionza vs. Court of Appeals, G.R. No. 140311,
promulgated on March30, 2001 penned by the Honorable
Associate Justice Josue N. Bellosillo.
The crux of the controversy is amendment of
information. Simply put, may an information be amended
to change the material dates of the commission of the
offense after the accused had been arraigned?
The Highest Court of the Land declared in the case at
bench that the questioned or assailed amendment is one of

form and not of substance. The allegation of time when an

offense is committed is a matter of form, unless time is a
material ingredient of the offense. It is not even necessary
to state in the information the precise time the offense was
committed unless time is a material factor. It is sufficient
that the act is alleged to have been committed at
_______________
*

L.L.B. L.L.M. D.C.L.

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anytime as near to the actual date at which the offense was

committed as the complaint or information will permit.
WHEREFORE, the petition is DENIED. The assailed
DECISION of the Court of Appeals in C.A.G.R. No. 49098
SP affirming that of the trial court which allowed the
amendment of the information charging petitioner with
violation of R.A. No. 1161 (The Social Security Law), as
amended, is AFFIRMED.
Considering the delay incurred in the process, the trial
court should immediately act on this case with deliberate
dispatch upon its remand, which this Court DIRECTS.
Costs against petitioner.
SO ORDERED.
Case at bar is another well written decision of Mr.
Justice Josue N. Bellosillo and further enriches the subject
of Criminal Procedure particularly amendments of
complaint or information. Cited jurisprudence or cases lay
down parameters or guideposts when an amendment is a
matter of substance or form.
II. Amendments
Section 14, Rule 110 of the Revised Rules of Criminal
Procedure (Rules 110127, as amended) provides for
amendment or substitution. Same was published in Manila
Bulletin and the Philippine Star, October 16 and 18, 2000,
respectively, and took effect December 1, 2000.
Section 14 thereof states that 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.
However, any amendment before plea, which
downgrades the nature of the offense charged in or
excludes any accused from the complaint or information,
can be made only upon motion by the prosecutor, with
notice to the offended party and with leave of court. The
court shall state its reasons in resolving the motion and
copies of its order shall be furnished all parties, especially
the offended party, (n)
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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 Section 19, Rule 119, provided that the
accused shall not be placed in double jeopardy. The court
may require the witnesses to give bail for their appearance
at the trial. (14a)
Noteworthy of mention that the above provision (Section
14) became effective December 1, 2000.
The case being annotated was promulgated on March
13, 2001. Section 14 of the 1985 Rules of Criminal
Procedure effective October 1, 1988 was applied in this case
of Dennis T. Gabionza vs. Court of Appeals. Prior to these
two amendments, the 1985 Rules of Criminal Procedure
took effect on January 1, 1985. Perusal of the records
discloses that the information accusing petitioner of
violating Section 22, paragraphs (a) and (d), in relation to
Section 28, paragraph (e) of RA 1161 was filed on
November 9, 1993. Ergo, the applicable provision or law
was Section 14, 1985 Rules of Criminal Procedure effective
October 1, 1988.
Section 14. Amendment.The information or complaint
may be amended, in substance or form, without leave of
court, at anytime before the 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.
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 Rule 119, Section II, 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.
As held in this case subject of this annotation, the
proper procedure for the amendment of an information is
governed by Section 14, Rule 110, of the Rules of Criminal
Procedure. Further, said the High Court, after the accused
enters a plea, amendments to the information may be
allowed, as to matters of form, provided that
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no prejudice is caused to the rights of the accused. The test

as to when the rights of an accused are prejudiced by the
amendment of a complaint or information is when 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 as
amended, citing the case of People vs. Montenegro, 159
SCRA 236.
Apropos this case being annotated, a reading of Section
28, paragraph (e), RA 1161, shows that it penalizes, among
others, the failure or refusal of a compulsorily covered
employer for remitting compulsory contributions to the
Social Security System, and neither time nor duration of
the offense charged is a material ingredient of the offense.
Moreover, the imposable penalty will not increase as a
result of the amendment. A reading of Section 28,
paragraph (e), RA 1161, shows that it penalizes, among
others, the failure or refusal of a compulsorycovered
employer for remitting compulsory contributions to the
SSS. Neither time nor duration of the offense charged is a
material ingredient of the offense. In fact, the penalty
imposed for this violation if constant at six (6) years and

one (1) day to twelve (12) years, regardless of the number of

infractions.
Likewise, the principle of laches, said the Highest
Tribunal of the Land, is inapplicable in the case, as Section
14, Rule 110 of the Rules on Criminal Procedure is explicit
that amendments as to form may still be made after
arraignment or during trial. Laches is defined as the
failure or neglect, for an unreasonable an unexplained
length of time, to do that which by exercising due diligence
could or should have been done earlier it is negligence or
omission to assert a right within a reasonable time
warranting a presumption that a party entitled to assert it
either has abandoned it or declined to assert it. (Republic
vs. Sandiganbayan, 255 SCRA 438). As the Solicitor
General correctly pointed out, the principle of laches is
inapplicable in this case. The provision in Section 14, Rule
110, of the Rules on Criminal Procedure is explicit that
amendments as to form may still be made after
arraignment or during trial. Since the questioned
amendment was made during trial,
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the same was made seasonably notwithstanding the lapse

of four (4) years.
Withal or what is more, the prosecution cannot be
faulted for not filing the amendment earlier where trial
was suspended during the pendency of the accuseds
recourse to the Court of Appeals and the Supreme Court. It
may also be noted that even before the prosecution had the
chance to present its principal evidence petitioner moved
for the suspension of trial because he filed a petition for
review on certiorari with the Court of Appeals questioning
the denial of his motion to dismiss. Pretrial was held only
on November 11, 1997. As can be seen from the records, the
prosecution did not unnecessarily waste time in filing the
motion for leave of court to amend information. Again,
before the prosecution had the opportunity to present
evidence, trial was suspended because of the filing of the
instant case. This, coupled with the many postponements
and resettings requested by petitioner, satisfactorily
explains the reasonable delay in the amendment of the

information. Certainly, the prosecution cannot be faulted

for not filing the amendment earlier since trial was
suspended during the pendency of petitioners recourse to
the Court of Appeals and to this Court. Petitioner should
not then bewail the delay in the amendment because such
delay was principally upon his behest.
III. Related Provisions
Under Section 4, 1985 Rules on Criminal Procedure,
effective October 1, 1988, if the motion to quash is based on
an alleged defect in the complaint or information which can
be cured by amendment, the court shall order the
amendment to be made.
The Revised Rules of Criminal Procedure, effective
December 1, 2000, adopted the provision contained in the
1988 amendment. The revised rules added the following:
If it is based on the ground that the facts charged do
not constitute an offense, the prosecution shall be given by
the court an opportunity to correct the defect by
amendment. The motion shall be granted if the prosecution
fails to make the amendment, or the complaint or
information still suffers from the same defect despite the
amendment.
774

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SUPREME COURT REPORTS ANNOTATED

Amendments of Complaints or Information

Anent Motion to Quash, under the Revised Rules of

Criminal Procedure, the appropriate time to move to quash
the complaint or information is anytime before plea.
(Section 1, Rule 117). It shall be in writing, signed by the
accused or his counsel and shall distinctly specify its
factual and legal grounds. The court shall consider no
ground other than those stated in the motion, except lack of
jurisdiction over the offense charged. (Section 2). Section 3
thereof provides other grounds for the Motion to Quash.
A Motion to Quash is the hypothetical admission of the
facts alleged in the information, ergo, the court in resolving
the motion cannot consider facts contrary to those alleged
in the information or which do not appear on the face of the
information, except those admitted by the prosecution.

(People vs. Navarro, 75 Phil 516.)

In the same vein, if the motion to quash is sustained, the
court may order that another complaint or information be
filed except as provided in Section 6 of this Rule. If the
order is made, the accused, if in custody, shall not be
discharged unless admitted to bail. If no order is made or if
having been made, no new information is filed within the
time specified in the order or within such further time as
the court may allow for good cause, the accused, if in
custody, shall be discharged unless he is also in custody for
another charge. (5a) (Section 5, Rule 117, Revised Rules of
Criminal Procedure).
What is the effect of sustaining the motion to quash?
Section 6 explicitly provides that an order sustaining the
motion to quash is not a bar to another prosecution for the
same offense unless the motion was based on the grounds
specified in section 3(g) and (i) of this rule. Section 3(g)
refers to that the criminal action or liability has been
extinguished. Section 3(i) pertains to 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. (3a)
How about failure to move to quash or to allege any
ground therefor? Section 9 thereof provides the answer. It
emphatically mandates that 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
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based on the grounds provided for in paragraphs (a), (b), (g)

and (i) of section 3 of this Rule.
Paragraph (a)that the facts charged do not constitute
an offense.
Paragraph (b)that the court trying the case has no
jurisdiction over the offense charged.
Paragraph (g)that the criminal action or liability has
been extinguished.
Paragraph (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.
IV. Amendment as to Matter of Form
An amendment which neither adversely affects any
substantial right of the accused (i.e. does not deprive him of
the right to invoke prescription) nor affects and/or alters
the nature of the offense originally charged, nor involves a
change in the basic theory of the prosecution so as to
require the accused to undergo any material change or
modification in his defense. (People vs. Rivera, 33 SCRA
749).
In relation to this case being annotated, the FINAL
ARBITER of die Land unequivocably stated that an
amendment which merely states with additional precision
something which is already contained in the original
information, and which, therefore, adds nothing essential
for conviction of the crime charged is an amendment as to
form that can be made at anytime. Jurisprudence allows
amendments to information so long as:
a.) it does not deprive the accused of the right to
invoke prescription (Vega vs. Panis, 117 SCRA 269)
b.) it does not affect or alter the nature of the offense
originally charged
c.) it does not involve a change in the basic theory of
the prosecution so as to require the accused to
undergo any material change or modification in his
defense
d.) it does not expose the accused to a charge which
would call for a higher penalty (People vs. Casey,
103 SCRA 21) and
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e.) it does not cause surprise nor deprive the accused of

an opportunity to meet the new averment.
Further, said the High Court, the allegation of time when
an offense is committed is a matter of form, unless time is

material ingredient of the offense.

Thus, petitioners argument that the amendment
prejudiced his rights is untenable. We fail to see how his
original defenses would be rendered inapplicable by the
amendment, nor the prosecutions theory in anyway altered
by the same. Petitioner failed to adduce any evidence in
support of his allegation that the amendment would
adversely affect his rights.
Petitioner invokes Wong v. Yatco (99 Phil. 791), People v.
Opemia (98 Phil. 698) and People v. Reyes (108 SCRA 203)
in support of his cause. However, we hold that the ratio
decidendi of the three (3) cases does not apply in the
present case.
In Wong the prosecution amended the Information of a
violation of Commonwealth Act No. 104 to change the dates
of the violation from May 3, 1954 to October 11, 1954 to
between January 2, 1955 and March 17, 1955. The Court
disallowed the amendment because in 1954, the law
punishing the act had not been published yet, therefore
there was no crime in legal contemplation. The Court said
that since an amended Information retroacted to the time
of the original one, the proper course would have been not
to amend the previous Information but to file another one.
This crucial fact is not involved here.
In Opemia the Court held, the period of almost five
years between 1947 and 1952 covers such long stretch of
time that one may be led to believe that another theft
different from that committed by the defendants in 1952
was also perpetrated by them in 1947. The variance is
certainly unfair to them, for it violates their constitutional
rights to be informed before the trial of the specific charge
against them and deprives them of the opportunity to
defend themselves.
In Reyes, this Court held that the disparity of time
between the years 1964 and 1969 is so great as to defy
approximation in the commission of one of the same
offense.
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The last two (2) cases involved changes in dates which were
so far removed from each other that substituting one for

the other would clearly work to the detriment of the right

of the accused to be informed of the nature and cause of the
charges against him. This is not so in the present case. For
one, a comparison of the amended Information (January
1991 to May 1992) and the original one (January 1991 to
May 1993) shows that the period stated in the former is
even shorter than and is included within the latter. Also,
the averment in or about and during the period gives a
sufficient approximation of the date of the commission of
the offense. Therefore, the first Information had adequately
informed petitioner of the period of time when the crime
was committed. No surprise, ergo, no violation of rights,
could spring from merely replacing the original period,
more so with one that is shorter and included within the
same.
V. Amendment as to Matter of Substance
Substantial amendments refer to amendments which
would prejudice the rights of the accused more especially
the right to the defense of double jeopardy. They are not
innocuous or mere clerical errors so to speak.
It relates to substance and the consent or acquiescence
by the accused to the substitution of a new complaint
charging another crime but predicated upon the same facts
as the former complaint was fatally defective constitutes a
waiver. (U.S. vs. Makinal, 4 Phil. 308).
An amendment that invariably changes the basic theory
of the prosecution by alleging a new way of committing the
offense partakes of the nature of a substantial amendment.
Such actuation or amendment, if allowed, would engender
surprise upon the accused and will result to possible
injustice. (People vs. Zulueta, 89 Phil. 752).
If there exists a doubt regarding the sufficiency of the
information, the court may direct its amendment or that
the new information be filed. (US vs. De Castro, 2 Phil.
616).
Where the occurrence or act supervenes converting the
crime into a more serious one after the filing of the original
information,
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amendment can be had to charge the more serious offense

without violating double jeopardy. (People vs. Petilla, 92
Phil. 395).
The lack or absence in the information of a statement of
the requisite certification by the fiscal (now prosecutor) of
having held a preliminary investigation is not fatal to the
prosecution of the criminal case. (People vs. Gomez, 117
SCRA 72).
Also, the filing of an amended information supersedes
the original information. Amended information is not a new
information. (People vs. Taruc, 5 SCRA 132 May 30, 1962).
VI. Mistake In Charging The Proper Offense
When it becomes manifest at anytime 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.
(Section 19, Rule 119, Revised Rules of Criminal
Procedure).
This provision is the same provision contained under the
1985 Rules on Criminal Procedure, as amended, effective
October 1, 1988.
Section 19 of the Rule 119 does not refer to any mistake
in charging the proper offense. It pertains to such a
mistake whereby the accused cannot be convicted of the
offense charged, nor any other offense necessarily included
therein. Hence, a new information should be filed charging
the accused with the proper offense without discharging
him by keeping him under custody or under bail.
In U.S. vs. Campo, 23 Phil. 368, a new complaint or
information charging ttie crime of bribery was filed instead
of robbery since the evidence constitutes the crime of
bribery.
VII. Variance Between Allegations and Proof
Section 4, Rule 120, Revised Rules of Criminal Procedure,
effective December 1,2000 states that when there is a

variance between
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the offense charged in the complaint or information and

that proved, and the offense as charged is included in or
necessarily includes the offense proved, the accused shall
be convicted of the offense proved which is included in the
offense charged, or of the offense charged which is included
in the offense proved.
The words established by evidence contained under the
1985 Rules on Criminal Procedure was not included under
the Revised Rules of Criminal Procedure.
When does an offense include or is included in another?
Section 5 of the same rules provides the answer. It
explicitly mentions that an 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 part of those constituting the latter.
Otherwise stated, an accused charged with an offense is
entitled to be informed of the nature and cause of the
accusation against him. There must be proof of guilt
beyond reasonable doubt. Variance between the allegation
and proof cannot justify conviction for either the offense
charged or of the offense proved unless either is included in
the latter.
Also, an offense charged is said to necessarily include or
is necessarily included in the offense proved when some
essential components or elements of the offense charged
constitute the offense proved or when the essential
ingredients of the offense charged constitute or form part of
those constituting the offense proved, then one offense is
included in the other.
VIII. Double Jeopardy
Non bis in idemno one shall be put in jeopardy of
punishment for the same offense.

No one can be punished for his crime twice. Same is

guaranteed under the Constitution. Section 21, Article 3
thereof provides No person shall be twice put in jeopardy
of punishment for the same offense. If an act is punished by
a law and an ordinance, conviction
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or acquittal under either shall constitute a bar to another

prosecution for the same act.
In implementing the above Constitutional mandate, the
Revised Rules of Criminal Procedure (Section 7, Rule 117)
succinctly provides that 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 has
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.
However, the conviction of the accused shall not be a bar
to another prosecution for an offense which necessarily
includes the offense charged in the former complaint or
information under any of the following instances:
a.) the graver offense developed due to supervening
facts arising from the same act or omission
constituting the former charge,
b.) the facts constituting the graver charge became
known or were discovered only after a plea was
entered in the former complaint or information, or
c.) the plea of guilty to the lesser offense was made
without the consent of the prosecutor and of the
offended party except as provided in section 1 (f) of
Rule 116.

In any of the foregoing cases, where the accused satisfies or

serves in whole or in part the judgment, he shall be
credited with the same in the event of conviction for the
graver offense.
Nemo bis vexari pro eadem causaNo one ought to be
twice tried for the same cause.
The elements of double jeopardy are, viz:
a.) the accused individuals are charged under a
complaint or an information sufficient in form an
substance to sustain their conviction
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b.) the court has jurisdiction

c.) the accused had been arraigned and pleaded
d.) they are convicted or acquitted or the case is
dismissed without their express consent (People vs.
CA, 308 SCRA 687.)
An appeal by the prosecution from a judgment or acquittal
would place the defendant in double jeopardy. (People vs.
CA, 308 SCRA 687).
VIII. Notes
1. The rule that an amendment which merely
supplements and amplifies facts originally alleged
in the complaint relates back to the date of the
commencement of the action does not apply to a
party who is impleaded for the first time in the
amended complaint that was filed beyond the
prescriptive period. (Republic vs. Sandiganbayan,
293 SCRA 440).
2. The fact that the fiscal (now prosecutor) charged six
(6) persons in the information when the witnesses
only mentioned four is a defect in the information
which could be cured by an amendment thereof.
(People vs. Tejero, 308 SCRA 660).
3. The amendment of the information in order to

allege the relationship of the accused to the victim

cannot be done after the accused has pleaded to the
information for simple rape without violating his
constitutional rights, for such is clearly substantial
in character having the effect of changing the crime
charged and exposing the accused to a higher
penalty. (People vs. Sandoval, G.R. Nos. 13262531,
promulgated December 18, 2000).
4. When an accused appeals from the sentence of the
trial court, he waives the constitutional safeguard
against double jeopardy and throws the whole case
open to the review of the appellate courtthis
precept should be borne in mind by every lawyer of
an accused who unwittingly takes the risk involved
when he decides to appeal his sentence. (People vs.
Rondero, 320, SCRA 383).
5. The doctrine of estoppel does not apply as against
the people in criminal prosecutions. (Binay vs.
Sandiganbayan, 316 SCRA 65).
6. The remedy against an indictment that fails to
allege the time of the commission of the offense
with sufficient definiteness is
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a motion for bill of particulars. (People vs.

Magbanua, 319 SCRA 719).
7. An infirmity in the information, such as lack of
authority of the officer signing it, cannot be cured
by silence, acquiescence or even by express consent.
(Cudia vs. CA, 284 SCRA 173).
8. It is doctrinal that the precise time of the
commission of an offense need not be alleged in the
complaint or information unless time is an essential
element of the crime charged. The phrase on or
about employed in the information does not
require the prosecution to prove any precise date
but may prove any date which is not so remote as to
surprise and prejudice the defendant. (People vs.
Bugayong, 299 SCRA 528).

o0o

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