8. PP v.

Hon Cajigal GR 157472 NATURE Petition for Certiorari under Rule 65 of the Rules of Court FACTS On or about March 18, 2002- in the Municipality of Mayantoc, Province of Tarlac said accused with intent to kill, did then and there wilfully, unlawfully and feloniously shoot his commanding officer 2Lt. Frederick Esquita with his armalite rifle hitting and sustaining upon 2the latter multiple gunshot wounds on his body which caused his instantaneous death. Upon arraignment- petitioner, duly assisted by counsel de parte, pleaded not guilty to the charge of Homicide. Respondent Judge issued an 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. 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." During 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. As petitioner refused to enter his plea on the amended Information for Murder, the public respondent entered for him a plea of not guilty. Petitioner filed a Motion to Quash with Motion to Suspend Proceedings Pending the Resolution of the Instant Motion on the ground of double jeopardy. Said motion was denied. Petitioners contention: in the Information for Homicide, he was validly indicted and arraigned before a competent court, and the case was terminated without his express consent, resulting in the dismissal of the case; and the subsequent filing of the Information for Murder in lieu of Homicide placed him in double jeopardy. Respondent judges contention: 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, alleging 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. Attached likewise is a Motion for Reconsideration, reiterating the claim of 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. Only the MR was granted. The Order denying the Motion to Quash was reconsidered and the original information charging the crime of homicide stands. Hence, this petition for Certiorari, with the same contentions and further arguing that although the respondent judge granted his MR, 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. Sol Gens contention- Respondent judge's Order reinstating the Information to Homicide after initially motu proprio 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.

ISSUES 1. WON there is a violation of the judicial heirarchy of courts. 2. WON Respondent judge committed GAD in a. amending the Information after petitioner had already pleaded not guilty to the charge in the Information for Homicide. b. denying his Motion to Quash the Amended Information for Murder on the ground of double jeopardy. c. ordering that the original Information for Homicide stands after realizing that disregard of rank does not qualify the killing to Murder, which was again a violation of his right against double jeopardy. RULING

1. Generally, YES. However, the judicial hierarchy of courts is not an iron-clad rule. 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. 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. 2. NO. The instant petition for Certiorari was DISMISSED, there being no grave abuse of discretion committed by Respondent Judge. A. Petitioner confuses the procedure and effects of amendment or substitution. While Respondent judge erroneously thought that "disrespect on account of rank" qualified the crime to murder, as the same was only a generic aggravating circumstance, he did not commit GAD 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. AMENDMENT- where the second information involves the same offense, or an offense which necessarily includes or is necessarily included in the first information 1. IDENTITY BETWEEN THE 2 OFFENSES a. when the evidence to support a conviction for one offense would be sufficient to warrant a conviction for the other; b. when the second offense is exactly the same as the first; c. when the second offense is an attempt to commit or a frustration of; 2. NECESSARY INCLUDES another- when some of the essential elements or ingredients of the former, as this is alleged in the information, constitute the latter; or 3. IS NECESSARY INCLUDED in the offense charged in the first information- when the essential ingredients of the former constitute or form a part of those constituting the latter.

SUBSTITUTION- where the new information charges an offense which is distinct and different from that initially charged

 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. 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.

TEST OF WHETHER THE RIGHTS OF THE ACCUSED ARE PREJUDICED BY THE AMENDMENT OF A COMPLAINT OR INFORMATION: 1. whether a defense under the complaint or information, as it originally stood, would no longer be available after the amendment is made; and 2. 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.

B. Petitioners claim that thee was double jeopardy is not meritorious. REQUISITES FOR DOUBLE JEOPARDY: 1. a first jeopardy attached prior to the second a. b. c. d. e. only after a valid indictment; before a competent court; after arraignment; when a valid plea has been entered; and when the accused was acquitted or convicted, or the case was dismissed or otherwise terminated without his express consent.

2. the first jeopardy has been validly terminated; and 3. a second jeopardy is for the same offense as in the first. 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. Section 14, Rule 110 of the Rules of Court: xxx 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, 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. 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.

C. 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.