Republic of the Philippines

Supreme Court
Manila
 
 
THIRD DIVISION
 
 
SSGT. JOSE M. PACOY, G.R. NO. 157472
Petitioner,
Present:
 
YNARES-SANTIAGO, J.,
Chairperson,
- versus - AUSTRIA-MARTINEZ,
CHICO-NAZARIO,
NACHURA, and
REYES, JJ.
 
HON. AFABLE E. CAJIGAL,
PEOPLE OF THE PHILIPPINES
and OLYMPIO L. ESCUETA, Promulgated:
Respondents. September 28, 2007
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x
 
 
DECISION
 
AUSTRIA-MARTINEZ, J.:
 
 
Before us is a Petition for Certiorari under Rule 65 of the Rules of Court filed
by SSGT. Jose M. Pacoy[1] (petitioner) seeking to annul and set aside the Orders
dated October 25, 2002[2] and December 18, 2002[3] issued by Presiding
Judge Afable E. Cajigal (respondent judge) of the Regional Trial Court (RTC),
Branch 68, Camiling, Tarlac in Criminal Case No. 02-42.
 
On July 4, 2002, 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 Esquitawith 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.[4]
 
 
On September 12, 2002, upon arraignment, petitioner, duly assisted by
counsel de parte, pleaded not guilty to the charge of Homicide.Respondent
Judge set the pre-trial conference and trial on October 8, 2002.[5]
 
However, on the same day and after the arraignment, the respondent judge
issued another Order,[6] likewise dated September 12, 2002, 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.
 
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, with the correction of
the spelling of the victims name from Escuita to Escueta.[7]
 
On October 8, 2002, 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.[8]
 
On October 28, 2002, petitioner filed a Motion to Quash with Motion to
Suspend Proceedings Pending the Resolution of the Instant Motion[9]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.
 
In an Order[10] dated October 25, 2002,[11] 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.
Petitioner filed a Motion to Inhibit with attached Motion for Reconsideration. In
his Motion to Inhibit, he alleged that the respondent judge exercised jurisdiction
in an arbitrary, capricious and partial manner in mandating the amendment of
the charge from Homicide to Murder in disregard of the provisions of the law
and existing jurisprudence.
 
In his Motion for Reconsideration, petitioner reiterated that the case against him
was dismissed or otherwise terminated without his express consent, which
constitutes a ground to quash the information for murder; and that to try him
again for the same offense constitutes double jeopardy. Petitioner stated that
contrary to respondent judge's conclusion that disregard of rank qualifies the
killing to Murder, it is a generic aggravating circumstance which only serves to
affect the imposition of the period of the penalty. Petitioner also argued that the
amendment and/or correction ordered by the respondent judge was substantial;
and under Section 14, Rule 110 of the Revised Rules of Criminal Procedure,
this cannot be done, since petitioner had already been arraigned and he would
be placed in double jeopardy.
 
In his Order dated December 18, 2002,[12] the respondent judge denied the
Motion to Inhibit and granted the Motion for Reconsideration, thus:
 
WHEREFORE, in view of the foregoing, the Motion to Inhibit
is hereby DENIED while the Motion for Reconsideration is hereby
GRANTED.
Unless ordered otherwise by the Highest Court, the presiding
judge shall continue hearing this case. Further, the Order
 dated October 25, 2002 is reconsidered and the original information
charging the crime of homicide stands.[13]
In granting the Motion for Reconsideration, respondent judge found that a close
scrutiny of Article 248 of the Revised Penal Code shows that disregard of rank
is merely a generic mitigating[14] circumstance which should not elevate the
classification of the crime of homicide to murder.
 
On April 30, 2003, petitioner filed herein petition for certiorari on the following
grounds:
 
THE RESPONDENT JUDGE GRAVELY ABUSED HIS
DISCRETION AND EXCEEDED HIS JURISDICTION IN
ORDERING THE AMENDMENT OF THE INFORMATION FROM
HOMICIDE TO MURDER.
 
THE RESPONDENT JUDGE GRAVELY ABUSED HIS
DISCRETION AND VIOLATED THE LAW IN DENYING THE
MOTION TO QUASH THE INFORMATION FOR MURDER.
 
THE RESPONDENT JUDGE GRAVELY ABUSED HIS
DISCRETION AND EXCEEDED HIS JURISDICTION AND
VIOLATED THE LAW IN ORDERING THE REINSTATEMENT
OF THE INFORMATION FOR HOMICIDE WHICH WAS
ALREADY TERMINATED.[15]
 
 

Petitioner alleges that despite having entered his plea of not guilty to the charge
of Homicide, the public respondent ordered the amendment ofthe Information
from Homicide to Murder because of the presence of the aggravating
circumstance of disregard of rank, which is in violation of Section 14, Rule 110
of the Revised Rules of Criminal Procedure; that the public respondents ruling
that disregard of rank is a qualifying aggravating circumstance which qualified
the killing of 2Lt. Escueta to murder is erroneous since, under paragraph 3,
Article 14 of the Revised Penal Code, disregard of rank is only a generic
aggravating circumstance which serves to affect the penalty to be imposed upon
the accused and does not qualify the offense into a more serious crime; that
even assuming that disregard of rank is a qualifying aggravating circumstance,
such is a substantial amendment which is not allowed after petitioner has
entered his plea.
 
Petitioner next contends that the respondent judge gravely abused his discretion
when he denied the Motion to Quash the Information for Murder, considering
that the original Information for Homicide filed against him was terminated
without his express consent; thus, prosecuting him for the same offense would
place him in double jeopardy.
 
Petitioner further argues that although the respondent judge granted his Motion
for Reconsideration, he did not in fact grant the motion, since petitioner's prayer
was for the respondent judge to grant the Motion to Quash the Information for
Murder on the ground of double jeopardy; that his Motion for Reconsideration
did not seek the reinstatement of the Information for Homicide upon the
dismissal of the Information for Murder, as he would again be placed in double
jeopardy; thus, the respondent judge committed grave abuse of discretion in
reinstating the Homicide case.
 
In his Comment, the Solicitor General argues that the respondent judge's Order
reinstating the Information to Homicide after initially motuproprio ordering its
amendment to Murder renders herein petition moot and academic; that
petitioner failed to establish the fourth element of double jeopardy, i.e., the
defendant was acquitted or convicted, or the case against him was dismissed or
otherwise terminated without his consent; that petitioner confuses amendment
with substitution of Information; that the respondent judge's Order dated
September 12, 2002 mandated an amendment of the Information as provided
under Section 14, Rule 110 of the Revised Rules of Criminal Procedure; and
that amendments do not entail dismissal or termination of the previous case.
 
Private respondent Col. Olimpio Escueta, father of the victim, filed his
Comment alleging that no grave abuse of discretion was committed by the
respondent judge when he denied petitioner's Motion to Quash the Amended
Information, as petitioner was not placed in double jeopardy; that the
proceedings under the first Information for homicide has not yet commenced,
and the case was not dismissed or terminated when the Information was
amended.
 
In his Reply, petitioner reiterates his 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.
 
The parties filed their respective Memoranda.
 
Generally, a direct resort to us in a petition for certiorari is highly improper, for
it violates the established policy of strict observance of the judicial hierarchy of
courts. However, the judicial hierarchy of courts is not an iron-clad rule.[16] A
strict application of the rule of hierarchy of courts is not necessary when the
cases brought before the appellate courts do not involve factual but legal
questions.[17]
 
In the present case, petitioner submits pure questions of law involving the
proper legal interpretation of the provisions on amendment and substitution of
information under the Rules of Court. It also involves the issue of double
jeopardy, one of the fundamental rights of the citizens under the Constitution
which protects the accused not against the peril of second punishment but
against being tried for the same offense. These important legal questions and in
order to prevent further delay in the trial of the case warrant our relaxation of
the policy of strict observance of the judicial hierarchy of courts.
 
The Courts Ruling
The petition is not meritorious.
 
We find no merit in petitioner's contention that the respondent judge committed
grave abuse of discretion in amending the Information after petitioner had
already pleaded not guilty to the charge in the Information for Homicide. The
argument of petitioner --
 
Considering the fact that the case for Homicide against him was
already terminated without his express consent, he cannot anymore be
charged and arraigned for Murder which involve the same
offense. The petitioner argued that the termination of the information
for Homicide without his express consent is equivalent to his
acquittal. Thus, to charge him again, this time for Murder, is
tantamount to placing the petitioner in Double Jeopardy.[18]
 
 
is not plausible. Petitioner confuses the procedure and effects of amendment or
substitution under Section 14, Rule 110 of the Rules of Court, to wit --
 
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 to the rights
of the accused.
 
x x x
 
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 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.
with Section 19, Rule 119 of which provides:
 
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.
First, a distinction shall be made between amendment and substitution under
Section 14, Rule 110. For this purpose, Teehankee v. Madayag[19]is
instructive, viz:
 
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.
 
In determining, therefore, 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, 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.[20]
 
  
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, as there was not at all any change in the act imputed
to petitioner, i.e., the killing of 2Lt. Escueta without any qualifying
circumstance. Thus, we find that the amendment made in the caption and
preamble from Homicide to Murder as purely formal.[21]
 
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.[22] 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.
 
While the respondent judge erroneously thought that disrespect on account of
rank qualified the crime to murder, as the same was only a generic aggravating
circumstance,[23] we do not find that he committed any grave abuse of discretion
in ordering the amendment of the Information after petitioner had already
pleaded not guilty to the charge of Homicide, since the amendment made was
only formal and did not adversely affect any substantial right of petitioner.
 
Next, we determine whether petitioner was placed in double jeopardy by the
change of the charge from Homicide to Murder; and subsequently, from Murder
back to Homicide. Petitioner's claim that the respondent judge committed grave
abuse of discretion in denying his Motion to Quash the Amended Information
for Murder on the ground of double jeopardy is not meritorious.
 
Petitioner's Motion to Quash was anchored on Section 3, Rule 117 of the Rules
of Court, which provides:
 
SEC. 3. Grounds. - The accused may move to quash the
complaint or information on any of the following grounds:
 
x x x x
 
(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.
Section 7 of the same Rule lays down the requisites in order that the defense of
double jeopardy may prosper, to wit:
 
SEC. 7. Former conviction or acquittal; double jeopardy. 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 had 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.
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.[24]
 
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.[25]
 
It is the conviction or acquittal of the accused or the dismissal or termination of
the case that bars further prosecution for the same offense or any attempt to
commit the same or the frustration thereof; or prosecution for any offense which
necessarily includes or is necessarily included in the offense charged in the
former complaint or information.[26]
 
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.[27] 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 of the Rules of
Court -- which, for convenience, we quote again --
 
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 section 19, Rule 119,
provided the accused shall not be placed in double jeopardy. The court
may require the witnesses to give bail for their appearance at the trial.
 
and Section 19, Rule 119, which provides:
 
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.[28]
 
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.
 
Anent the last issue, petitioner contends that respondent judge gravely abused
his discretion in ordering that the original Information for Homicide stands after
realizing that disregard of rank does not qualify the killing to Murder. That
ruling was again a violation of his right against double jeopardy, as he will be
prosecuted anew for a charge of Homicide, which has already been terminated
earlier.
 
We are not convinced. Respondent judge did not commit any grave abuse of
discretion.
 
A reading of the Order dated December 18, 2002 showed that the respondent
judge granted petitioner's motion for reconsideration, not on the ground that
double jeopardy exists, but on his realization that disregard of rank is a generic
aggravating circumstance which does not qualify the killing of the victim to
murder. Thus, he rightly corrected himself by reinstating the original
Information for Homicide. The requisite of double jeopardy that the first
jeopardy must have attached prior to the second is not present, considering that
petitioner was neither convicted nor acquitted; nor was the case against him
dismissed or otherwise terminated without his express consent.[29]
WHEREFORE, the petition is DISMISSED, there being no grave abuse
of discretion committed by respondent Judge.
  
SO ORDERED.