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DOMINGO S. CASTRO AND HERMOGENES BUENCAMINO,
                         Petitioners,

G. R. No. 45828

March 4, 1938

DIAZ, J:

The petitioners, alleging that the respondent Judge abused his discretion and exceeded his jurisdiction as such Judge in permitting and authorizing the amendment of the information charging them with illegal possession of counterfeit bank notes purporting to have been issued by the National Bank, after the fiscal had presented part of his oral and documentary evidence, now pray in this certiorari proceeding that the amendment so authorized by the respondent judge be declared illegal. The facts that gave rise to the petition are briefly as follows:

By virtue of a Complaint originally filed in the Justice of the Peace Court of Cabanatuan, Province of Nueva Ecija, charging the petitioners with the crime of illegal possession of counterfeit bank notes purporting to have been issued by the Philippine National Bank, a criminal action was brought against them and the corresponding preliminary investigation conducted. In said investigation the alleged counterfeit bank notes were presented against them. They were the same notes later presented at the formal trial to which they were subjected, as accused, in criminal case No. 9291 of the Court of First Instance of said province, upon an information filed by the Provincial Fiscal, based on the result of the preliminary investigation. The crime with which they were charged in said case was the same as that with which they had been charged in the Justice of the Peace Court. It happened that in the course of the trial, the respondent noticed - inviting the attention of the interested parties thereto - that the notes which, according to the evidence for the prosecution, had been found in the possession of the petitioners, were not imitations of the one hundred-peso notes of the Philippine National Bank, as alleged in the Information, but of the certificates of deposit or notes of the Insular Treasury. Taking his cue from the respondent's suggestion, the fiscal then asked for permission, which was granted him a few minutes later, to amend, as he in fact amended, his information in the sense of alleging therein that the counterfeit notes found in the possession of the petitioners were "treasury certificates of the Philippine Islands" instead of "bogus bills purporting to have been issued by the Philippine National Bank". The petitioners opposed the amendment and duly excepted to the order permitting it and providing that if no petition were filed against the Judge within nine days thereafter, the case would be reassigned for trial to terminate it. Consequently, the question arising from these facts is whether or not the respondent Judge could validly order the amendment of the information in question without thereby violating the provisions of Section 9 of the Code of Criminal Procedure or General Orders No. 58. The petitioners contend that he could not do so.

The above-cited Section provides:

"The information or complaint may be amended in substance or form, without leave of court, at any time before the defendant pleads; and thereafter, during the trial, as to all matters of form, at the discretion of the court, when the same can be done without prejudice to the rights of the defendant."

Article 166 of the Revised Penal Code prescribes the same penalty for falsification of certificates of deposit or notes of the Insular Treasury and that of National Bank notes. The penalty prescribed by it for both falsifications is reclusion temporal in its minimum period and a fine not to exceed 10,000 pesos. There can be no doubt about this because, in the definition given by said provision of law to "obligation or security of the United States or of the Philippine Islands", National Bank notes are included, inasmuch as it states that said words are held to mean all bonds, certificates of indebtedness, National Bank notes, coupons, United States or Philippine Islands notes, treasury notes, fractional notes, certificates of deposit, bills, checks, or drafts for money, drawn by or upon authorized officers of the United States or of the Philippine Islands, and other representatives of value, of whatever denomination, which have been or may be issued under any Act of the Congress of the United States or the Philippine Legislature.

The Philippine National Bank is an institution created by virtue of Act No. 2612 and the amendments thereof [Acts Nos. 2747, 2938, 3005, 3695 and 4170], with authority to issue circulating notes payable on demand to the bearer in lawful money of the Philippine Islands or - using the same phrase employed in Article 166 of the Revised Penal Code - National Bank notes. Now then, the illegal possession of false certificates of deposit of the Insular Treasury or of circulating notes issued by the Philippine National Bank is punished by said Code with the same penalty, that is, prision mayor in its maximum period and a fine not to exceed 7,500 pesos. It is so provided by Article 168 of said Code which says:

"Unless the act be one of those coming under the provisions of any of the preceding articles, any person who shall knowingly use or have in his possession, with intent to use any of the false or falsified instruments referred to in this section, shall suffer the penalty next lower in degree than that prescribed in said articles."

The Articles referred to in the above-quoted Article are Articles 166 and 167 which prescribe the penalties which should be imposed for falsification of an obligation or security of the United States or of the Philippine Islands or of notes issued by a banking association of the Philippines or of securities issued by a foreign government or by foreign banks, and for counterfeiting, importing and uttering instruments payable to bearer.

Let it be stated in passing that the penalty next lower to reclusion temporal in its minimum period and a fine not to exceed 10,000 pesos is the one already indicated above, for reasons analogous to those stated in the cases of People vs. Co Pao [58 Phil., 545]: People vs. Gayrama [60 Phil., 796]; and People vs. Haloot [G. R. No. 45490, September 15, 1937], and by virtue of the rule established in Article 75 of the Revised Penal Code.

If We must consider, as we cannot help but consider, the question in the light of the facts and of the above-cited legal provisions, particularly not losing sight of the fact that the counterfeit notes in question, although designated by different names in the two informations filed against the petitioners, one in the Justice of the Peace Court and the other in the Court of First Instance, are exactly the same notes which the petitioners had before them in both of the above-stated courts where the preliminary investigation and the formal trial were held, respectively, it seems clear that the amendment permitted by the respondent Judge was simply one of form and in no way of substance. It cannot therefore be said that the petitioners were misled thereby, because they knew from the beginning that it was not sought to charge them with illegal possession of false National Bank notes but of those lastly stated in the fiscal's amended information, that is, in the information authorized by the respondent judge.

According to the law, the Complaint or Information may be amended as to all matters of form when the same can be done without prejudice to the rights of the defendant [Sec. 9, General Orders No. 58], and the amendment questioned herein has not in the least altered the situation of the petitioners in the sense of prejudicing their rights because it is of no avail far them to allege that they were not given time to know the true nature of the charge filed against them, in order to consider what answer to give to the Information and what defense or defenses to put up, inasmuch as they were actually informed of all these facts and, consequently, they knew what to rely on when they first appeared in the justice of the peace court and later in the Court of First Instance.