Pacoy v Cajigal (2007)

GR No. 157472

Before us is a Petition for Certiorari under Rule 65 of the Rules of Court filed by SSGT. Jose M. Pacoy
(petitioner) seeking to annul and set aside the Orders dated October 25, 2002 and December 18, 2002
issued by Presiding Judge Afable E. Cajigal.

An Information for Homicide was filed in the RTC against petitioner committed as follows:

That on or about the 18th day of March 2002, in the Municipality of Mayantoc, Province of Tarlac, Philippines
and within the jurisdiction of this Honorable Court, the said accused with intent to kill, did then and there wilfully,
unlawfully and feloniously shot his commanding officer 2Lt. Frederick Esquita with his armalite rifle hitting and
sustaining upon 2Lt. Frederick Esquita multiple gunshot wounds on his body which caused his instantaneous
death. With the aggravating circumstance of killing, 2Lt. Frederick Esquita in disregard of his rank.

The accused pleaded not guilty on Sept 12, 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 public respondent registered as
having qualified the crime to Murder. 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, with the
correction of the spelling of the victims name from Escuita to Escueta.

On October 8, the date scheduled for pre-trial conference and trial, petitioner was to be re-arraigned for the crime
of Murder. 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 petitioner refused to enter his plea on the amended Information for Murder, the public respondent
entered for him a plea of not guilty.

On October 28, 2002, petitioner filed a Motion to Quash with Motion to Suspend Proceedings Pending the
Resolution of the Instant Motion on the ground of double jeopardy. Petitioner alleged that in the Information for
Homicide, he was validly indicted and arraigned before a competent court, and the case was terminated without
his express consent; that when the case for Homicide was terminated without his express consent, the subsequent
filing of the Information for Murder in lieu of Homicide placed him in double jeopardy.

RTC Judge: In an Order dated October 25, 2002, the respondent judge denied the Motion to Quash. He ruled that
a claim of former acquittal or conviction does not constitute double jeopardy and cannot be sustained unless
judgment was rendered acquitting or convicting the defendant in the former prosecution; that petitioner was
never acquitted or convicted of Homicide, since the Information for Homicide was merely corrected/or
amended before trial commenced and did not terminate the same; that the Information for Homicide was
patently insufficient in substance, so no valid proceedings could be taken thereon; and that with the allegation of
aggravating circumstance of disregard of rank, the crime of Homicide is qualified to Murder.

MR was Granted by RTC Judge as regards only to aggravating circumstance. Thus, the final information is for
Homicide.

Issue: Whether petitioners contention that the amendment of the charge of Homicide to Murder after his
arraignment would place him in double jeopardy, considering that said amendment was without his express
consent; and that such amendment was tantamount to a termination of the charge of Homicide?

Held. No.

Petitioner's Motion to Quash was anchored on Section 3, Rule 117 of the Rules of Court. 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.
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 and and Section 19, Rule 119:

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.

Other issues:
Petitioner confuses the procedure and effects of amendment or substitution under Section 14, Rule 110 of the
Rules of Court, with Section 19, Rule 119.

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.

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.

Lastly, no GADALEJ because upon the realization of the judge that aggravating circumstance of rank does is just
an ordinary mitigating circumstance in the crime of murder, he changed it to Homicide again.