ANTONIO DIMALIBOT, PETITIONER AND APPELLANT, VS. ARSENIO N. SALCEDO, RESPONDENT AND APPELLEE.

On February 20, 1958, Ramon Dimalibot et al., were charged with
homicide for the killing of Bartolome Hernandez before the Justice of
the Peace Court of Candelaria, Quezon. After conducting the first stage
of preliminary investigation and having found probable cause against
the accused, the justice of the peace court issued a warrant for their
arrest recommending a bail bond of P8,000.00 for each of the accused.
Accordingly, the accused were arrested and were released after having
filed the required bond.

When the case was called for the second stage of the preliminary
investigation, the accused, after having been informed of the nature of
the charge, pleaded not guilty, but waived their right to present
evidence. Thereupon, the justice of the peace court forwarded the case
to the court of first instance as required by law.

The provincial fiscal, after a review of the affidavits of the
witnesses for the prosecution that were filed in support of the charge,
filed a petition with the court stating that said affidavits show that
the killing complained of was perpetrated with the qualifying
circumstances of treachery, taking advantage of superior strength, and
employing means to weaken the defense of the victim, and praying that
an order be issued directing the return of the record to the court of
origin so that the chief of police may reinvestigate the case and file
an amended complaint for murder which is the proper charge. The
petition was favorably acted upon and, accordingly, the record of the
case was returned to the Justice of the Peace Court of Candelaria in
order that proper action may be taken as above adverted to Complying
with said order, the chief of police on October 7, 1958 filed an
amended complaint for murder against the accused, and having found
probable cause for the new charge, the justice of the peace court
ordered the re-arrest of the accused but without fixing any bail bond
for their provisional liberty since the new charge is a capital
offense. The second stage of the preliminary investigation was set for
November 29, 1958, but is was postponed to give the accused an
opportunity to test the legality of the com plaint as amended.

On December 3, 1958, one Antonio Dimalibot filed on behalf of the
accused a petition for a writ of habeas corpus with the Court of First
Instance of Quezon alleging, among others, that the amended complaint
was illegal and the accused should be released from custody. The
provincial fiscal contested the petition and, after trial, the court
denied the same. Hence the present appeal.

It is contended that the Court of First Instance of Quezon erred in
ordering the return of the case to the court of origin so that the
chief of police may reinvestigate the case and tile an amended
complaint for murder which was the proper charge against the accused
considering the allegations contained in the supporting affidavits of
the prosecution witnesses, because such act was not authorized by law.
Hence, petitioner avers, the warrant for the re-arrest of the accused
issued on the strength of the amended information was without authority
of law and, therefore, their confinement is illegal.

There is no merit in this claim. Section 13, Rule 106 of the Rules of Court, reads as follows:

“SEC. 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 lie 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 above section contains two parts: one authorizes the amendment
of an information or complaint, in substance or form, without leave of
court, at any time before the defendant pleads, and thereafter, only as
to matters of form. The other provides that, 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 in double jeopardy.

Here these rules properly apply, since it is undisputed that the
herein accused were not yet arraigned before the competent court when
the complaint for homicide was amended so as to charge the crime of
murder. Upon the authority of said rules, the amendment could therefore
be made even as to substance in order that the proper charge may be
made. The claim that such amendment can only refer to matters of
specification affecting the elements constituting the crime is not
correct, for there is nothing in the rule to show that the nature of
the amendment should only be limited to matters of specification. The
change may also be made even if it may result in altering the nature of
the charge so long as it can be done without prejudice to the rights of
the defendant.

This clearly appears from the second part of section, 13 of Rule 106
which says that, if it appears before judgment that a mistake has been
made in charging the proper offense, the court may dismiss the original
information and order the filing of a new one provided the defendant
may not be placed in double jeopardy. If a new information may be
ordered at any time before judgment no reason is seen, why the court
may not order the amendment of the information if its, purpose is to
make it conformable to the true nature of the crime committed. It is in
line with this interpretation that this Court allowed the amendment of
the information in the case of Melo vs. The People of the
Philippines, et al., (85 Phil., 766; 47 Off. Gaz., No. 9, 4631, 4632)
wherein the Court made the following ruling:

“Brushing aside technicalities of procedure and
going into the substance of the issues raised, it may readily be
stated, that the amended information was rightly allowed to stand. Rule
106, section 13, 2d paragraph, is as follows:

‘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.’

“Under this
provision, it was proper for the court to dismiss the first information
and order the filing of a new one for the reason that the proper
offense was not charged in the former and .the latter did not place the
accused in a second jeopardy for the same or identical offense.”

The claim that there was no mistake in charging the offense of
homicide because when the same was filed on February 20, 1958 the
additional declarations or testimonies of witnesses regarding the
qualifying circumstances necessary to make the amendment were not yet,
furnished the prosecuting officer is incorrect, because the record
shows that the evidence necessary to show said qualifying circumstances
was already available at the very inception when the information was
filed, only that a mistake was committed therein by the chief of police
when he charged the accused with homicide. Thus, in the petition filed
by the fiscal asking for the reinvestigation of the case, he stated
that there was a “discrepancy between the evidence on record and the
information charged” because the affidavits of the prosecution witnesses
show that the victim was stabbed to death while he was being held in
the arms and in the neck by the other accused. This shows that the
evidence on the qualifying circumstances was already present when the
complaint for homicide Was filed on February 20, 1958, and the
so-called additional “declarations and testimonies” furnished in
October, 1958 were adduced only to clarify or make more precise the
evidence already contained in the affidavits of the state witnesses.

Wherefore, the decision appealed from is affirmed, without pronouncement as to costs.

Paras, C. J., Bengzon, Padilla, Montemayor, Labrador, Concepcion, Reyes, J. B. L., Endencia, Barrera, and Gutierrez David, JJ., concur.