2. Variance Between Allegation and Proof

Variance Doctrine

General Rule: The accused can be convicted of an offense only when it is both charged and proved.

Exception: When there is variance between the crime charged and the crime proved, and the offense as charged is included or necessarily includes 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. (People v. Chi Chan Liu, GR No. 189272, 2015)

An offense charged necessarily includes the offense proved when some essential elements of the former, as alleged in the complaint or information, constitute the latter.

An offense charged is necessarily included in the offense proved when the essential ingredients of the former constitute the latter.

If there is variance, the accused can only be convicted of the lesser offense which is included in the graver offense. (People v. Pareja, G.R. No. 202122, 2014)

The mere fact that the evidence presented would indicate a lesser offense outside the court’s jurisdiction was committed does not deprive the court of its jurisdiction, which had vested in it under the allegations in the information (PP v. Ocaya, 1987).

Variance between Indictment and Proof:

• When the offense proved is less serious than and is necessarily included in the offense charged, in which case, the defendant shall be convicted of the offense proved;
• When the offense proved is more serious than and includes the offense charged, in which case the defendant shall be convicted of the offense charged;
• When the offense proved is neither included in, nor does it include, the offense charged and is different therefrom, in which case the court should dismiss the action and order the filing of new information charging the proper offense. (Substitution of information applies in this case).