Question: Distinguish substantial
from formal amendment.
Answer: A substantial amendment consists of the recital of facts constituting the
offense charged and determinative of the jurisdiction of the court. All
other matters are merely of form.
The following have been held to
be mere formal amendments:
(1) new allegations which relate only to the range of the penalty that
the court might impose in the event of conviction; (2) an amendment which does
not charge another offense different or distinct from that charged in the
original one; (3) additional allegations which do not alter the
prosecution's theory of the case so as to cause surprise to the accused and
affect the form of defense he has or will assume; (4) an amendment which does
not adversely affect any substantial right of the accused; and (5) an amendment
that merely adds specifications to eliminate vagueness in the information
and not to introduce new and material facts, and merely states with additional
precision something which is already contained in the original information and
which adds nothing essential for conviction for the crime charged. (LEVISTE vs. ALMEDA, G.R. No. 182677, August3, 2010)
Question: What is the test whether
the amendment is substantial or merely formal?
Answer: The test as to whether a
defendant is prejudiced by the amendment is whether a defense under the
information as it originally stood would be available after the amendment is
made, and whether any evidence defendant might have would be equally
applicable to the information in the one form as in the other. An amendment to
an information which does not change the nature of the crime alleged therein
does not affect the essence of the offense or cause surprise or deprive the
accused of an opportunity to meet the new averment had each been held to be one
of form and not of substance.(Ricarze v. Court of Appeals, G.R. No.160451, February 9, 2007)
Question: What kind of amendment of
the complaint/information can be made before arraignment?
Answer: As a rule, both formal and substantial
amendments are allowed before arraignment even without leave of court. By way
of exception, an amendment before plea which downgrades the nature of the
offense charged 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. (Section 14, Rule 110 of the Rules of Criminal Procedure)
Question: Before arraignment, can amendment
of the complaint/information be allowed to cure any and all defects thereof?
Answer: No. It must be clarified that not all defects in the information are curable by amendment prior to entry of plea. An information which is void ab initio cannot
be amended to obviate a ground for quashal. An amendment which operates to vest
jurisdiction upon the trial court is likewise impermissible. (LEVISTE vs. ALMEDA, G.R.No. 182677, August 3, 2010)
Question: After the accused entered his plea, may the
Information for homicide be still amended to charge the more serious offense of
murder?
Answer: No, because such
amendment upgrading the charge from homicide to murder is a substantial
amendment. The amendment of the Information from homicide to murder is
"one of substance with very serious consequences. In keeping with Section
14, Rule 110 of the Rules of Criminal Procedure, only formal amendment can be
allowed after arraignment but it is always upon leave of court and provided no
prejudice can be made on the rights of the accused. After the accused is arraigned,
substantial amendment is proscribed except if the same is beneficial to the
accused. (Fronda-Baggaov. People, G.R. No. 151785, December 10, 2007)
Question: The original Information alleged that on October 16,
1992, petitioner Danilo Buhat, armed with a knife, unlawfully attacked and
killed one Ramon George Yu while the said two unknown assailants held his arms,
"using superior strength, inflicting . . . mortal wounds which were
. . . the direct . . . cause of his death" In filing this information, the
prosecutor expressly designated it as one for homicide.
After arraignment, the prosecution moves to
amend the original Information by changing the express designation of the crime
charged from homicide to murder. Can this be allowed?
Answer: Yes. Notice that the original
information already contains the allegation that the killing was done with the “use
of superior strength”. This allegation already qualified the killing as murder regardless
of how such killing is technically designated in the information filed by the
public prosecutor.
When the appellation of the crime
charged as determined by the public prosecutor, does not exactly correspond to
the actual crime constituted by the criminal acts described in the information
to have been committed by the accused, what controls is the description of the
said criminal acts and not the technical name of the crime supplied by the
public prosecutor. In other words, the
real nature of the criminal charge is determined not from the caption or
preamble of the information nor from the specification of the provision of the
law alleged to have been violated, they being conclusions of law which in no
way affect the legal aspects of the information, but from the actual recital of
facts as alleged in the body of the information.
Under these circumstances, the
amendment of the Information by merely changing its express designation from homicide
to murder is only a formal amendment and no prejudice can be made against the
rights of the accused. (DANILO BUHAT VS. COURT OF APPEALS, G.R. No. 119601 December 17, 1996)
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