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[ROLANDO DIONALDO v. AUXENCIO DACUYCUY](http://lawyerly.ph/juris/view/c6028?user=fbGU2WFpmaitMVEVGZ2lBVW5xZ2RVdz09)
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DIVISION

[ GR No. 55357, Oct 30, 1981 ]

ROLANDO DIONALDO v. AUXENCIO DACUYCUY +

DECISION

195 Phil. 543

SECOND DIVISION

[ G.R. No. 55357, October 30, 1981 ]

ROLANDO DIONALDO, PETITIONER, VS. THE HONORABLE AUXENCIO DACUYCUY, JUDGE, COURT OF FIRST INSTANCE, BRANCH IV, PROVINCE OF LEYTE, RESPONDENT.

D E C I S I O N

ABAD SANTOS, J.:

In this petition We are asked to rule whether an information for the crime of homicide can be amended so as to charge the crime of murder after the accused had entered a plea of not guilty.

Petitioner Rolando Dionaldo stands charged with the crime of homicide in Criminal Case No. 3835 of the Court of First Instance of Leyte, Branch IV, presided by the respondent judge.  After the accused had entered a plea of not guilty, the pro­secution filed a motion for leave to amend the information, attaching thereto an amended information charging the ac­cused with murder qualified by treachery and evident preme­ditation a more serious offense.  No explanation was given in the motion for alleging evident premeditation but as to the allegation of treachery it was explained that, "the affidavit of the complaining witness indicates that the attack was sudden and it was only after they sustained the wounds consequent to the treacherous attack that they were forced to fight back to repel further aggression." It can thus be seen that all along this claimed circumstance was known to the prosecution but it was not alleged.

Counsel for the accused opposed the motion to amend the information but the respondent judge granted the motion; hence the petition to nullify the action of the respondent.

The petition is impressed with merit.

It is admitted that the provision which is relevant to the pro­blem is Rule 110, Sec. 13 of the Rules of Court which stipulates:

"Section 13. Amendment. - The information or complaint may be amended, in substance or form, without leave of court, at any time before the de­fendant 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 defendant.
"If it appears at any time before judgment that a mistake has been made in charging the proper offense, the court may dismiss the original com­plaint or information and order the filing of a new one charging the proper offense, provided the defendant would not be placed thereby in double jeopardy, and may also require the witnesses to give bail for their appearance at the trial."

The petitioner invokes the first paragraph, whereas the respondent relies on the second.

To amend the information so as to change the crime charged from homicide to the more serious offense of murder after the petitioner had pleaded not guilty to the former is indubitably proscribed by the first paragraph of the above-quoted provision.  For certainly a change from homicide to murder is not a matter of form; it is one of substance with very serious consequences.

But can the amendment be justified under the second para­graph?  The answer is, No. For the provision speaks not of amendment but of dismissal of the information.  In other words the provision contemplates the filing of a substitute, not an amended information.  But, it may be asked, can not the informa­tion for homicide against the petitioner be dismissed since no judgment has yet been rendered and another information for murder be filed?  The answer, again, is, No.  For the petitioner having pleaded not guilty to homicide, to dismiss the charge against him so as to file another charge for murder will place him thereby in double jeopardy.

We have not overlooked the fact that People of the Philippines, thru the Solicitor General, should have been made a party to this case.  But the participation of the People while necessary is not indispensable under the circumstances.  Besides an early resolution of this case is necessary to provide affirmative justice to the petitioner.

WHEREFORE, the petition is granted and the order of the respondent admitting the amended information is hereby set aside.  No costs.

SO ORDERED.

Barredo, (Chairman), Concepcion, Jr., and De Castro, JJ., concur.
Aquino, J., concurs in the result. Respondent judge relied on Dimalibotvs. Salcedo, 107 Phil. 843, where the amendment of the charge from homicide to murder, after the accused had pleaded guilty, was allowed.
The Dimalibot case is different from the instant case. The plea in the Dimalibot case was made during the preliminary investigation to a complaint for homicide filed in the justice of the peace court. That is not the plea contemplated in Section 9, Rule 117 of the Rules of Court. The plea in the instant case was made to an information filed in the Court of First Instance.

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