This is ah appeal by the prosecution from an order of dismissal.

It appears  that on February  26, 1953,  an information was filed in the Court of First Instance of  Camarines Sur, charging  four persons with theft of large cattle alleged to have been committed on or about June 18, 1952.   After the defendants  had pleaded not guilty and in the course of  the trial, the caretaker of  the  stolen carabao, testifying as fourth witness for the prosecution, declared that the theft occured sometime in July, 1947,  where upon the fiscal asked for permission to amend the  information to make  it conform to  the evidence  as  regards the date of the commission  of  the crime.   Instant objection  to the proposed  amendment  was raised on behalf of the defendants on the ground that it would  violate their substantial rights  for  the reason that  the  case,  had  already  been pending for a long time and the  trial  had progressed to .such an extent that  their defense had already been revealed to the prosecution.  Believing  that  the amendment would really  prejudice the substantial rights of the accused  the trial  court sustained the  objection.  And the defense having also asked  that the information be quashed on the ground of variance between its allegations and the evidence, the court verbally ruled that it  was dismissing the said  information and implemented the ruling  by declaring the case  dismissed in the judgment rendered, at the conclusion of the trial.

Appealing .from the  order of  dismissal, the Solicitor General contends that instead of  dismissing  the case the lower court should have  allowed the  information  to be amended.

Section 13 of Rule 106 provides:

"SEC. 13. Amendment. The information  of complaint  may be amended, in substance or form, without leave of  court, at any time before the defendant pleads;  and  thereafter and during the trial as  to all matters of form, by leave and at the discretion of the court, when  the same can be dona without prejudice to the rights of  the  defendant.

"If it appears at any time before judgment that a  mistake has been  made in charging the proper  offense, the court may dismiss if the original  complaint or information and  order the filling of  a new one charging the proper  offense, provided the defendant would not be placed  thereby in double jeopardy,  and may  also require the witnesses to give bail for their appearance at the trial."

The amendment proposed in the present  ease  consists in  changing the  date of the  commission  of  the  crime charged from June 18, 1952 to  July,  1947.  In not permitting  the amendment  the  learned  trial  Judge  said:

"It is a cardinal rule in criminal  procedure that the time at  which an offense  was committed  need not be alleged in  the complaint or information, but it  is required that the a alleged to have been committed at any time as near to the actual date at which the offense was committed as the information or complaint would permit (Rule  106,  section 10).  The reason for this rule  is obvious.  It  is  to apprise the accused'  of  the approximate  date when  the  offense  charged was committed in order to enable  him to  prepare his defense and thus avoid a surprise.  In t case at bar, the proof shows that the  carabao was lost on  July 25,  1947  and not on June 18,  1952 as alleged' in the information. The period of  almost five years between 1947 and  1952 covers  such a  long stretch of time that one cannot help but be led  to  believe that another theft different from  that' committed  by the defendants in 1952  was also perpetrated by them in 1947.  Under this impression the accused,  who  came to  court prepared to  face  a charge of theft of  large cattle allegedly committed by them in 1952, were certainly caught by sudden  surprise upon being confronted by evidence tending to  prove a  similar  offense  committed in  1947.  The variance  is certainly unfair to  them,  for it violates their constitutional right to be informed before the trial of the  specific charge against them and deprives them of the  opportunity to  defend themselves.  Moreover, they can not be convicted of an  offense  with which they are not charged.

"It  is also a cardinal rule  in criminal procedure that after the defendant has  entered his plea,  tho information or complaint may be  amended  only  as  to all matters of form when the same  can be done  without prejudice to the rights of the defendant (Rule 196,  section 13).  An  amendment that would change  the  date of  the commission  of the  offense from 1947  to 1952 is certain not a matter of form.  The difference' in  date  could not be attributed  to a clerical error, because  the  possibility of such  an e ruled out by the fact that the difference is not only in the year, but also in the  month and in the last  two  digits  of the  year.  It  is apparent that the proposed amendment concerns with material facts constituting  the offense, and consequently it  would be prejudicial to the substantial rights of the defendants."

His  Honor has  we  think  adduced good reasons for considering the amendment  as  referring  to substance  and not.  merely to form.   But even  supposing  it to  be the contrary, its allowance, after the defendants had pleaded, was discretionary  with the  court  and would be  proper only if it would not prejudice their rights. We are not prepare  to say  that the  court did not  makes good use of that discretion in disallowing the amendment; considering that the variance sought to be introduced thereby would appear to be  really  unfair  to  the  defendants,  for as clearly explained by the court "it violates  their constitutional  right to be informed before the trial of  the  specific charge against   them  and deprives them  of  the  opportunity to defend themselves."

In any event, it appears from the judgment  below that, with the proposed  amendment disallowed and  seeing  that the  prosecution  could  not contradict the testimony  that created the necessity for  the amendment, the trial court dismissed  the  case oh the ground of variance between allegation and proof, so that the dismissal really amounted to  an acquittal.  In line,  therefore,  with  our ruling  in Gandicela  vs. Lutero,  88  Phil., 299;  People vs. Diaz, 94 Phil.,  714; People vs.  Bangalao, et al.,  94 Phil., 354; and Catilo vs. Abaya, 94 Phil.,  1014 the defendants in the present case should be deemed to have already been acquitted and may not be tried again  without being put twice  in jeopardy of punishment for the same offense.

Wherefore, the appeal is dismissed, without  special pronouncement as  to  costs.

Paras, C. J., Padilla,  Bautista Angelo, Labrador, Concepcion, and Reyes, J. B. L., JJ., concur.