Variance between the offense charged and that proved

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When there is variance between the offense charged in the complaint or information and that proved, and the offense as charged is included in or necessarily includes the offense proved, the accused shall be convicted of the offense proved which is included in the offense charged, or of the offense charged which is included in the offense proved.[1] The Rules of Court[2] provides that:

SEC. 5. When an offense includes or is included in another. – An offense charged necessarily includes the offense proved when some of the essential elements or ingredients of the former, as alleged in the complaint or information, constitute the latter. And an offense charged is necessarily included in the offense proved, when the essential ingredients of the former constitute or form part of those constituting the latter.

Contents

Accused charged as principal, convicted as accomplice

Does this constitute a violation of accused-appellant's constitutional right to be informed of the nature and cause of the accusation against him on the ground that he was convicted as an accomplice under Section 4 of Presidential Decree No. 532 (Piracy) even though he was charged as a principal by direct participation under Section 2 of said law? It is well-settled that if there is lack of complete evidence of conspiracy, the liability is that of an accomplice and not as principal.[3] Any doubt as to the participation of an individual in the commission of the crime is always resolved in favor of lesser responsibility.[4]

Grave coercion necessarily included in robbery

Grave coercion, like robbery, has violence for one of its elements. The difference in robbery and grave coercion lies in the intent in the commission of the act. The motives of the accused are the prime criterion:[5]

The distinction between the two lines of decisions, the one holding to robbery and the other to coercion, is deemed to be the intention of the accused. Was the purpose with intent to gain to take the property of another by use of force or intimidation? Then, conviction for robbery. Was the purpose, without authority of law but still believing himself the owner or the creditor, to compel another to do something against his will and to seize property? Then, conviction for coercion under Article 497 of the Penal Code. The motives of the accused are the prime criterion. And there was no common robber in the present case, but a man who had fought bitterly for title to his ancestral estate, taking the law into his own hands and attempting to collect what he thought was due him. Animus furandi was lacking.[6]

In Consulta vs. People,[7] the Supreme Court found that the use of threats, intimidation and violence consisting of, among others, uttering of invectives, driving away of the tricycle driver, and kicking of the tricycle, prevented the victim from proceeding to her destination.[8] This constitutes grave coercion.

Robbery included in a charge for kidnapping for ransom

There is no procedural obstacle to the conviction of the accused of the crime of simple robbery upon an information charging them with kidnapping for ransom, since the former offense which has been proved is necessarily included in the latter offense with which they are charged. For the charge of robbery, it is sufficient that the elements of unlawful taking, with intent to gain, of personal property through intimidation of the owner or possessor thereof shall be, as it has been, proved. Intent to gain (animus lucrandi) is presumed to be alleged in an information where it is charged that there was unlawful taking (apoderamiento) and appropriation by the offender of the things subject of the robbery. These elements are necessarily included in the information filed against the accused which, as formulated, allege that they wilfully, unlawfully and feloniously kidnapped and extorted ransom from the victim. Such allegations, if not expressly but at the very least by necessary implication, clearly convey that the taking of the victim's money and checks (inaccurately termed as ransom) was unlawful, with intent to gain, and through intimidation. It cannot be logically argued that such a charge of kidnapping for ransom does not include but could negate the presence of any of the elements of robbery through intimidation of persons.[9]

Variance in the date of commission of the offense

The Information in People vs. Bugayong,[10] alleged that the crime was committed "before and until October 15, 1994." The Supreme Court held that the precise time of the commission of an offense need not be alleged in the complaint or information, unless time is an essential element of the crime charged. The date is not an essential element of rape, for the gravamen of the offense is carnal knowledge of a woman. The time-tested rule is that "when the 'time' given in the complaint is not of the essence of the offense, it need not be proven as alleged and that the complaint will be sustained if the proof shows that the offense was committed at any time within the period of the statute of limitations and before the commencement of the action." The question of whether the allegations of the information are sufficiently definite as to time and the question which arises from a variance between the allegations and the proof are different in nature and legal effect, and are decided on different principles.[11] A difference of one (1) year or twelve (12) months [is] merely a matter of form and does not prejudice the rights of the accused. The phrase "on or about" employed in the information does not require the prosecution to prove any precise date but may prove any date which is not so remote as to surprise and prejudice the defendant."[12] Indeed, the determinative factor in the resolution of the question involving a variance between allegation and proof in respect of the date of the crime is the element of surprise on the part of the accused and his corollary inability to defend himself properly.[13] If vagueness afflicted the text of the Information which alleges that the accused committed rape "before or until October 15, 1994. . . . several times," it was cured by the victim's Sworn Statement, which was expressly made an integral part of the Information. The victim categorically alleged that she had been raped by the accused in 1993 when she was in grade three. Hence, the accused was sufficiently apprised that the "several" instances of rape committed "before and until October 15, 1994," which were asserted in the body of the Information, included the sexual assault on the victim in 1993 as alleged in the said Statement.[14]


References

  1. Consulta vs. People, G.R. No. 179462, 12 February 2009
  2. Rules of Court, Rule 120, Section 4
  3. People vs. Tulin, G.R. No. 111709, 30 August 2001, citing People v. Tolentino, 40 SCRA 514 (1971)
  4. People vs. Tulin, G.R. No. 111709, 30 August 2001, citing People v. Corbes, 270 SCRA 465 (1997); People vs. Elfano, Jr., 125 SCRA 792 (1983); People v. Pastores, 40 SCRA 498 (1971)
  5. Consulta vs. People, G.R. No. 179462, 12 February 2009
  6. United States vs. Villa Abrille, 36 Phil. 807, 809 (1917), cited in Consulta vs. People, G.R. No. 179462, 12 February 2009
  7. G.R. No. 179462, 12 February 2009
  8. Consulta vs. People, G.R. No. 179462, 12 February 2009
  9. People vs. Puno, G.R. No. 97471, 17 February 1993
  10. G.R. No. 126518, 2 December 1998, 299 SCRA 528 (1998)
  11. US vs. Dichao, 27 Phil. 421, 30 March 1914, cited in People vs. Bugayong, G.R. No. 126518, 2 December 1998, 299 SCRA 528 (1998)
  12. People vs. Borromeo, 123 SCRA 253, 29 June 1983, cited in People vs. Bugayong, G.R. No. 126518, 2 December 1998, 299 SCRA 528 (1998)
  13. People vs. Bugayong, G.R. No. 126518, 2 December 1998, 299 SCRA 528 (1998)
  14. People vs. Bugayong, G.R. No. 126518, 2 December 1998, 299 SCRA 528 (1998)
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