@Blushing cupcakes cafe #contemplating

On our way to Tagaytay #onefinechristmasday #withmyfamily

I miss.....and so I admit it.

Yes, I do. But that doesn't mean anything. Well, except that I miss you.

***I made the quote...I just got the picture from the net. I just love the expression of the eyes of MaiMai C.

...this case :)

Kudos to me! :)

I finally found the suited Jurisprudence. This case isn't hopeless anymore. Well...I hope so.



Here goes...

PLAINTIFF’S MEMORANDUM

Plaintiff, by the undersigned counsel most respectfully submits this memorandum and states:

 

THE FACTS

Plaintiff filed a criminal case against its former employee, Admin. Assistant, for issuing falsified 129 Requisition slips making it appear that there were actual request of Ink Cartridges by the Plaintiff’s other employees.  Having the control and access to the requisition of company’s supplies as part of the defendant’s job as Admin assistant, the said acts were continuously done within the period of six months. The said requested ink cartridges, through the falsified requisition slips, amounting to Php 14,000,000.00 were paid through Plaintiff’s funds but were not appropriated to the Plaintiff but instead to the defendant himself. However, in the information filed by the Prosecutor, the offense charged was 1 count of continuing crime of Falsification instead of Qualified Theft. Conversely, the defendant was arraigned under the charge of 1 count of continuing crime of Falsification.

 

THE ISSUE

            The issue in this case is whether or not the Information can still be amended to correct the offense charged from 1 count of continuing crime of  Falsification to the crime of Qualified Theft, even after the Defendant has already been arraigned.

 

THE ARGUMENTS

Defendant is liable for the crime of Qualified Theft.

Revised Penal Code (RPC), defines Theft, under Art. 308, as committed by any person who, with intent to gain but without violence, against, or intimidation of persons nor force upon things, shall take personal property of another without the latter’s consent. Thus, the elements of the crime of Theft are:  

(1) There was a taking of personal property;

(2) The property belongs to another;

(3) The taking was without the consent of the owner;

(4) The taking was done with intent to gain; and

(5) The taking was accomplished without violence or intimidation against the person or force upon things.

 

Theft is qualified under Art. 310 of the RPC, when it is, among others, committed with grave abuse of confidence, thus:

 

ART. 310.  Qualified Theft.—The crime of theft shall be punished by the penalties next higher by two degrees than those respectively specified in the next preceding article, if committed by a domestic servant, or with grave abuse of confidence, or if the property stolen is motor vehicle, mail matter or large cattle or consists of coconuts taken from the premises of a plantation, fish taken from a fishpond or fishery or if property is taken on the occasion of fire, earthquake, typhoon, volcanic eruption, or any other calamity, vehicular accident or civil disturbance.  

 

 

The elements of Qualified Theft committed with grave abuse of confidence are as follows:

 

1.         Taking of personal property;

 

2.         That the said property belongs to another;

 

3.         That the said taking be done with intent to gain;

 

4.         That it be done without the owner’s consent;

 

5.         That it be accomplished without the use of violence or intimidation against persons, nor of force upon things;

 

6.         That it be done with grave abuse of confidence.

 

 

The defendant being an Administrative Assistant, his job consists of maintenance of supplies inventory by checking stock to determine inventory, estimating and anticipating needed supplies of the company, placing and expediting orders for supplies and verifying receipt of supplies. Thus, the company relies and trusts with his maintenance, inventory and verification of the receipts for the supplies. The defendant’s act of falsifying the requisition slip and making it appear as if there were actual request of Ink Cartridges, appropriating to himself the ink cartridges, manipulating the inventory of the supplies and by doing the acts continuously for a period of 6 months not only breach the trust of the company but abused the confidence reposed on her.

 

On the other hand, the elements of falsification of private document under Article 172 of the Revised Penal Code (RPC), paragraph 2  are:

 

(1) That the offender committed any of the acts of falsification, except those in paragraph 7, Article 171;

(2) That the falsification was committed in any private document; and

(3) That the falsification caused damage to a third party or at least the falsification was committed with intent to cause such damage.

 

The principal distinction between the two crimes is that in theft the thing is taken while in estafa the accused receives the property and converts it to his own use or benefit. However, there may be theft even if the accused has possession of the property. If he was entrusted only with the material or physical (natural) or de factopossession of the thing, his misappropriation of the same constitutes theft, but if he has the juridical possession of the thing, his conversion of the same constitutes embezzlement or estafa.²⁰  Conversion of personal property in the case of an employee having material possession of the said property constitutes theft, whereas in the case of an agent to whom both material and juridical possession have been transferred, misappropriation of the same property constitutes estafa

 [G.R. No. 179061, July 13, 2009]

Information may still be amended even after arraignment but before judgment.

Amendment of Information before arraignment it is a matter of right, no leave of court is necessary and the prosecution is free to do so even in matters of substance and in form. It will be a more complicated situation if the amendment sought is when the accused had already been arraigned. This time the amendment can only be made by a prior leave and at the discretion of the court, only as to matters of form when the same can be done without prejudice to the rights of the accused. 

 

The test as to when the rights of an accused are prejudiced by the amendment of a complaint or information is when a defense under the complaint or information, as it originally stood, would no longer be available after the amendment is made, and when any evidence the accused might have, would be inapplicable to the complaint or information as amended.^[On the other hand, an amendment which merely states with additional precision something which is already contained in the original information and which, therefore, adds nothing essential for conviction for the crime charged is an amendment to form that can be made at anytime. (ALBERT VS. SANDIGAN BAYAN G.R. No. 164015)

 

Section 14, Rule 110 of the Rules of Court, provides:

 

SEC. 14. Amendment or substitution. — A complaint or information may be amended, in form or in substance, without leave of court, at any time before the accused enters his plea. After the plea and during the trial, a formal amendment may only be made with leave of court and when it can be done without causing prejudice to the rights of the accused.

 

                        x x x

 

                        If it appears at any time before judgment that a mistake has been made in charging the proper offense, the court shall dismiss the original complaint or information upon the filing of a new one charging the proper offense in accordance with Rule 119, Section 11, provided the accused would not be placed thereby in double jeopardy, and may also require the witnesses to give bail for their appearance at the trial.

           

                    

with Section 19, Rule 119 of which provides:

 

SEC. 19.  When mistake has been made in charging the proper offense. -  When it becomes manifest at any time before judgment that a mistake has been made in charging the proper offense and the accused cannot be convicted of the offense charged or any other offense necessarily included therein, the accused shall not be discharged if there appears good cause to detain him.  In such case, the court shall commit the accused to answer for the proper offense and dismiss the original case upon the filing of the proper information.

      

As distinguished in the case of Teehankee vs. Madayag;

 

1.  Amendment may involve either formal or substantial changes, while substitution necessarily involves a substantial change from the original charge;

 

2.  Amendment before plea has been entered can be effected without leave of court, but substitution of information must be with leave of court as the original information has to be dismissed;

 

3.  Where the amendment is only as to form, there is no need for another preliminary investigation and the retaking of the plea of the accused;  in substitution of information, another preliminary investigation is entailed and the accused has to plead anew to the new information;  and

 

4.  An amended information refers to the same offense charged in the original information or to an offense which necessarily includes or is necessarily included in the original charge, hence substantial amendments to the information after the plea has been taken cannot be made over the objection of the accused, for if the original information would be withdrawn, the accused could invoke double jeopardy.  On the other hand, substitution requires or presupposes that the new information involves a different offense which does not include or is not necessarily included in the original charge, hence the accused cannot claim double jeopardy.

 

In determining, therefore, whether there should be an amendment under the first paragraph of Section 14, Rule 110, or a substitution of information under the second paragraph thereof, the rule is that where the second information involves the same offense, or an offense which necessarily includes or is necessarily included in the first information, an amendment of the information is sufficient;   otherwise, where the new information charges an offense which is distinct and different from that initially charged, a substitution is in order.  [G.R. NO. 157472 PACOY VS. CAJIGAL]

 

There is identity between the two offenses when the evidence to support a conviction for one offense would be sufficient to warrant a conviction for the other, or when the second offense is exactly the same as the first, or when the second offense is an attempt to commit or a frustration of, or when it necessarily includes or is necessarily included in, the offense charged in the first information.  In this connection, an offense may be said to necessarily include another when some of the essential elements or ingredients of the former, as this is alleged in the information, constitute the latter.  And, vice-versa, an offense may be said to be necessarily included in another when the essential ingredients of the former constitute or form a part of those constituting the latter.  [G.R. NO. 157472 PACOY VS. CAJIGAL]

When the facts alleged in the accusatory portion of the amended Information are identical with those of the original Information for former offense charged, there could not be any effect on the prosecution's theory of the case; neither would there be any possible prejudice to the rights or defense of petitioner. There can be no grave abuse of discretion in ordering the amendment of the Information after petitioner had already pleaded not guilty to the former offense charged, since the amendment made was only formal and did not adversely affect any substantial right of petitioner. [G.R. NO. 157472 PACOY VS. CAJIGAL].

 

When motion to Amend the Information after arraignment will not result to Double Jeopardy.

 

Section 14, Rule 110 of the Rules of Court  contemplates correction or amendment of the Information but not dismissal of the same upon filing of a new Information charging the proper offense:

 

“If it appears at anytime before judgment that a mistake has been made in charging the proper offense, the court shall dismiss the original complaint or information upon the filing of a new one charging the proper offense in accordance with section 19, Rule 119, provided the accused shall not be placed in double jeopardy. The court may require the witnesses to give bail for their appearance at the trial.”

 

Section 14, Rule 110, applies only when the offense charged is wholly different from the offense proved, i.e., the accused cannot be convicted of a crime with which he was not charged in the information even if it be proven, in which case, there must be a dismissal of the charge and a substitution of a new information charging the proper offense. Section 14 does not apply to asecond information, which involves the same offense or an offense which necessarily includes or is necessarily included in the first information. In this connection, the 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 a part of those constituting the latter.

 

It is the conviction or acquittal of the accused or the dismissal or termination of the case that bars further prosecution for the same offense or any attempt to commit the same or the frustration thereof;  or prosecution for any offense which necessarily includes or is necessarily included in the offense charged in the former complaint or information.

 

Section 3, Rule 117 of the Rules of Court, provides:

 

         SEC. 3. Grounds. - The accused may move to quash the complaint or information  on any of the following grounds:

 

x x x x

 

 (i) That the accused has been previously convicted or acquitted of the offense charged, or the case against him was dismissed or otherwise terminated without his express consent.   

        

         Section 7 of the same Rule lays down the requisites in order that the defense of double jeopardy may prosper, to wit:

 

SEC. 7. Former conviction or acquittal; double jeopardy. — When an accused has been convicted or acquitted, or the case against him dismissed or otherwise terminated without his express consent by a court of competent jurisdiction, upon a valid complaint or information or other formal charge sufficient in form and substance to sustain a conviction and after the accused had pleaded to the charge, the conviction or acquittal of the accused or the dismissal of the case shall be a bar to another prosecution for the offense charged, or for any attempt to commit the same or frustration thereof, or for any offense which necessarily includes or is necessarily included in the offense charged in the former complaint or information.

Thus, there is double jeopardy when the following requisites are present: (1) a first jeopardy attached prior to the second; (2) the first jeopardy has been validly terminated; and (3) a second jeopardy is for the same offense as in the first.

 

         As to the first requisite, the first jeopardy attaches only (a) after a valid indictment; (b) before a competent court; (c) after arraignment; (d) when a valid plea has been entered; and (e) when the accused was acquitted or convicted, or the case was dismissed or otherwise terminated without his express consent^.

 

 

 

PRAYER

WHEREFORE, it is respectfully prayed that Motion to Amend Information with leave of court be granted. Other measures of relief, just and equitable under the premises, are likewise prayed for.