DANIEL CABANGANGAN, PETITIONER VS. ROBERTO CONCEPCION, ARSENIO P. DIZON, AND DIONISIO DE LEON, ASSOCIATE JUSTICES OF THE COURT OF APPEALS, SECOND DIVISION, RESPONDENTS.

The petitioner Daniel Cabangangan was charged before the Court of
First Instance of Samar with the crime of illegal possession of firearm
in the following information dated November 21, 1950:

“That on or about the 28th day of September, 1950,
and sometime prior thereto, in the municipality of Calbiga, Province of
Samar, Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused, did, then and there wilfully,
unlawfully and feloniously have in his possession and under his custody
and control a home-made shotgun with an empty shell, and 6 rounds of
ammunition for a caliber 38 pistol, without securing first the
necessary license therefor.”

On January 25, 1951, the prosecution filed with the following amended information:

“That on or about the period comprised between May,
1950, and September 28, 1950, in the municipality of Calbiga, Province
of Samar, Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused, did, then and there willfully,
unlawfully and feloniously have in his possession and under his custody
and control a home-made shotgun with an empty shell, and 6 rounds of
ammunition for a caliber 38 pistol, without securing first the
necessary license therefor, and which the accused carried with him on
September 28, 1950 and used to coerce one Antonio Pacuan.”

When the petitioner was arraigned on June 29, 1951, the information
read to him was not the amended information, but the original dated
November 21, 1950. The amended information was filed, so as to allege
the additional fact that the petitioner carried with him the firearm
and ammunition and used the same to coerce Antonio Pacuan, obviously in
order to pave the way for conviction under Republic Act No. 482. It
appears from the record that, when the original information was read to
the petitioner who pleaded not guilty, his attorney pointed out to the
court that the arraignment was not under the amended information; and
that, at the close of the trial, petitioner’s counsel again reminded
the court about the same fact. Yet the Court of First Instance of Samar
found the petitioner guilty of illegal possession of firearm and
ammunition; sentenced him to an indeterminate penalty of imprisonment
ranging from 1 year and 1 day to 3 years and 1 month, and to pay the
costs; and ordered the confiscation of the firearm and ammunition
involved. From this judgment the petitioner appealed to the Court of
Appeals wherein he contended that his conviction was erroneous for lack
of arraignment upon the amended information dated January 25, 1951. The
Court of Appeals, however, affirmed the judgment of the trial court on
the ground that the petitioner was aware of the filing of the amended
information and, in failing to object to the presentation of evidence
proving the additional allegation therein, waived formal arraignment
thereunder; and that, as the original information averred that
petitioner’s possession was unlawful and felonious, proof of the
existence of said charge was admissible even under the original
information. The petitioner has filed the present petition for
certiorari.

There is no question that the petitioner was not actually arraigned
under the amended information of January 25, 1951. We believe that he
had not waived his right thereto, in view of the fact that his counsel
twice called the attention of the trial court to the omission, and this
reminder amounted to an objection. As arraignment was mandatory, the
petitioner having the constitutional right to be informed of the charge
against him, his conviction—which would be only under the second
information—suffers from a reversible defect. It is not correct to
state that petitioner’s felonious possession under Republic Act No. 482
could be established by proper evidence even under the original
information, for the simple reason that the original information was
superseded by the amended information.

Respondents’ observation that the proper remedy is appeal by
certiorari, and not the special civil action of certiorari, refers to
form rather than to substance. Moreover, the petition herein contains
allegations sufficient to make out an appeal under Rule 46 of the Rules
of Court.

Wherefore, the appealed decision is reversed and the case is
remanded to the court of origin for further proceedings in accordance
with law. So ordered without costs.

Pablo, Montemayor, Reyes, A., Jugo, Bautista Angelo, and Labrador, JJ., concur.