IDENTICAL OFFENSES
MARLO CAMPANILLA·WEDNESDAY, DECEMBER 26, 2018
When an offense proven by evidence necessarily includes or is necessarily included in
the offense charged in the information, both crimes shall be considered as identical.
Identical offenses are required to apply the variance rule (Section 4, Rule 120 of the
Revised Rules of Criminal Procedure) and the rule on double jeopardy while non-
identical offenses are needed to apply the rules on substitution of information (Section
14, Rule 110 of the Revised Rules of Criminal Procedure).
1. Variance rule and double jeopardy – If two crimes are subject to the doctrine of
absorption, they are identical. Hence, the variance rule or rule on double jeopardy may
apply.
Treason or rebellion absorbs murder because the latter is an indispensable means to
commit the former. In sum, since murder is an indispensable means to commit treason or
rebellion, the former shall be considered as a mere ingredient of the latter.
If the information alleged murder, but the evidence established the crime of rebellion
since the killing of the victim is made in furtherance of rebellion, the court can convict
the accused of the lesser crime of rebellion because of the variance rule. (People vs.
Manglallan, G.R. No. L-38538, April 15, 1988; People vs. Avila, G.R. No. 84612 March
11, 1992). If the accused are convicted for rebellion under the first information, they
cannot be convicted of murder under the second information for the killing the victim in
furtherance of rebellion because of double jeopardy rule. (People vs. Yuzon, G.R. Nos.
L-9462-63, July 11, 1957)
The information charged the accused of treason and alleged that they adhered to the
Japanese Empire, a government enemy, and gave aid and comfort to it by treacherously
killing the victims. Treason was not proven because the evidence failed to satisfy the
two-witnesses rule. Accused was convicted for murder, which is necessarily included in
the charge of treason, because of the variance rule. (People vs. Cantos, G.R. No. L-1661,
April 28,1949) If the accused is convicted for treason under the first information, he
cannot be convicted for murder under the second information involving killing a guerilla,
which act constitutes giving aid and comfort to the Japanese enemy in adherence thereof,
because of the rule on double jeopardy (People vs. Labra, G.R. No. L-886, August 10,
1948).
If two crimes are components of a special complex crime or complex crime, they are
identical. Hence, the variance rule or rule on double jeopardy may apply.
Murder is a component of the special complex crime of robbery with homicide. If the
information alleged special complex crime of robbery with homicide with treachery, but
the evidence merely established the treacherous killing but not the robbery, the court can
convict the accused of the crime of murder, which is necessarily included in the charge of
robbery with homicide, because of the variance rule (People vs. De Leon, G.R. No.
197546, March 23, 2015). If the court did not apply the variance rule and acquitted the
accused for robbery with homicide, the accused cannot be prosecuted for homicide,
which is necessarily included in the charge of robbery with homicide because of the rule
on double jeopardy.
2. Substitution of information – Theft and estafa through misappropriation are not
identical. Hence, variance rule is not applicable. If the information alleged estafa through
misappropriation, but the evidence established theft because the possession of the
accused for being an employee of the complainant is merely physical, the court cannot
apply the variance rule because theft proven by evidence does not necessarily include or
is not necessarily included in the charge of estafa. Hence, the court must acquit the
accused for the crime of estafa charged in the information. (Chua-Burce vs. CA, G.R. No.
109595, April 27, 2000)
However, since theft and estafa are not identical, the court applying the rule on
substitution can dismiss the case for estafa and order the filing of new information for
theft (People vs. Yusay, G.R. No. L-26957, September 2, 1927). If the court dismissed
the case for estafa without an order for the substitution of the information, the
prosecution can simply file a new information for theft. Filing of new information to
charge the accused the proper offense as directed by the court or on the sole initiative of
the prosecution is not a violation of the rule on double jeopardy since estafa under the old
information and theft under the new information are not identical (U.S. vs. Vitog, G.R.
No. L-12817, October 25, 1917).
