Demurrer to evidence

Sec. 23. Demurrer to evidence. After the prosecution

rests its case, the court may dismiss the action on
the ground of insufficiency of evidence (1) on its own
initiative after giving the prosecution the opportunity to
be heard or (2) upon demurrer to evidence filed by the
accused with or without leave of court.

If the court denies the demurrer to evidence filed with

leave of court, the accused may adduce evidence in his
defense. When the demurrer to evidence is filed without
leave of court, the accused waives the right to present
evidence and submits the case for judgment on the basis
of the evidence for the prosecution.

The motion for leave of court to file demurrer to

evidence shall specifically state its grounds and shall
be filed within a non-extendible period of five (5) days
after the prosecution rests its

case. The prosecution may oppose the motion within a

non-extendible period of five (5) days from its receipt.

If leave of court is granted, the accused shall file the

demurrer to evidence within a non-extendible period of
ten (10) days from notice. The prosecution may oppose
the demurrer to evidence within a similar period from its
receipt.

The order denying the motion for leave of court to file

demurrer to evidence or the demurrer itself shall not be
reviewable by appeal or by certiorari before judgment.

AFTER THE PROSECUTION RESTS ITS CASE, WHAT ARE

THE OPTIONS OF THE ACCUSED?

THE ACCUSED MAY DO THE FOLLOWING:

1. File a demurrer to evidence with leave or without leave of court

2. Adduce his evidence unless he waives the same

WHAT IS A DEMURRER TO EVIDENCE?

 It is a motion to dismiss the case filed by the defense after
the prosecution rests on the ground of insufficiency of the evidence
of the prosecution

It has been said that a motion to dismiss under the Rules of

Court takes place of a demurrer, which pleading raised questions of
law as to sufficiency of the pleading apparent on the face thereof

In the same manner as a demurrer, a motion to dismiss

presents squarely before the court a question as to the sufficiency
of the facts alleged therein to constitute a cause of action

WHAT ARE THE WAYS BY WHICH A CASE MAY BE DISMISSED

ON THE BASIS OF INSUFFICIENCY OF EVIDENCE OF THE
PROSECUTION?

1. The court may dismiss the case on its own initiative after giving
the prosecution the right to be heard
2. Upon demurrer to evidence filed by the accused with or without
leave of court

THE PROSECUTION RESTS ITS CASE. THE COURT THINKS THAT

THERE IS INSUFFICIENCY OF EVIDENCE PRESENTED. WHAT DOES IT
NEED TO DO IN CASE IT WISHES TO DISMISS THE CASE?

The court may dismiss the case on its own initiative after
giving the prosecution the right to be heard

WHAT DOES IT MEAN WHEN THE PROSECUTION WOULD BE GIVEN

THE RIGHT TO BE HEARD BEFORE THE COURT DISMISSES THE
CASE?

The prosecution is given the chance to explain itself

of circumstances that may have lead to its failure to adduce enough
evidence to support its case

HOW DO YOU FILE A DEMURRER TO EVIDENCE?

Within 5 days after the prosecution rests, the accused should

file a motion for leave of court to file a demurrer to evidence, stating
in such motion his grounds for such

The prosecution shall have 5 days within which to

oppose the motion
 If the motion is granted, the accused shall file the
demurrer to evidence within 10 days from notice of grant of leave
of court

The prosecution may oppose the demurrer to evidence within

10 days from its receipt of the demurrer

WHAT IS THE EFFECT OF FILING THE DEMURRER TO EVIDENCE

WITH LEAVE OF COURT?

The effect of its filing is that if the court grants the demurrer,
the case will be dismissed

If the court denies the demurrer to evidence filed with

leave of court, the accused may still adduce evidence on his behalf

WHAT IS THE EFFECT OF FILING THE DEMURRER TO EVIDENCE

WITHOUT LEAVE OF COURT?

If the court denies the demurrer to evidence which was

filed without leave of court, the accused is deemed to have waived
his right to present evidence and submits the case for
judgment on basis of the evidence of the prosecution

This is because demurrer to evidence is not a matter of right

but is discretionary on the court

Permission of the court has to be obtained before it is

filed, otherwise the accused loses certain rights

THE ACCUSED FILED A DEMURRER OF EVIDENCE WITHOUT

LEAVE OF COURT. THE DEMURRER OF EVIDENCE IS DENIED.
IS THERE ABSOLUTE WAIVER OF PRESENTATION OF EVIDENCE
BY THE COURT?

No

The general rule is that filing of a demurrer of evidence

without leave of court, which is subsequently denied, is a
waiver of presentation of evidence

Nonetheless, if the demurrer of evidence is filed before

the prosecution rests its case, there would be no waiver to
present evidence. As the prosecution hasnt finished
presenting its
evidence, there is still insufficiency of evidence.
WHAT IS THE EFFECT IF THE DEMURRER IS GRANTED AND THE
ACCUSED IS ACQUITTED?

The accused has the right to adduce evidence on the civil

aspect of the case unless the court declares that the act or omission
from which the civil liability may arise did not exist.

If the trial court issues an order or renders judgment not

only granting the demurrer to evidence of the accused and
acquitting him but also on the civil liability of the accused to
the private offended party, said judgment on its civil case would be
a nullity for violation of the rights of the accused to due process.

WHAT IS THE REMEDY OF THE ACCUSED IF THE DEMURRER TO

EVIDENCE IS DENIED?

As a general rule, there can be no appeal or certiorari

on the denial of the demurrer to evidence, since it is an
interlocutory order which doesnt pass judgment on the merits of
the case

In such instance, the accused has the right to adduce evidence

on his behalf not only on the criminal aspect but also on the
civil aspect of the case

Sec. 24. Reopening. At any time before finality of the

judgment of conviction, the judge may, motu proprio or
upon motion, with hearing in either case, reopen
the proceedings to avoid a miscarriage of justice. The
proceedings shall be terminated within thirty (30) days from
the order granting it.

WHEN CAN A CASE BE REOPENED?

At any time before the finality of judgment of conviction,

the judge may reopen the case either on his own volition or
upon motion, with hearing on either case, in order to avoid a
miscarriage of justice

The proceedings should be terminated within 30 days

from the order granting the reopening of the case

WHEN CAN THERE BE A DENIAL OF THE REOPENING OF THE CASE,

GIVEN THAT ALL CONDITIONS REQUIRED?
 It would be prejudicial to the rights of an accused

Examples of this when the accused cannot present

enough evidence, present his witnesses, etc.

RULE 117 - MOTION TO QUASH

Section 1. Time to move to quash. At any time before entering his

plea, the accused may move to quash the complaint or information.

WHEN CAN THE ACCUSED FILE A MOTION TO QUASH?

> At any time before entering the plea, the accused may
move to quash the complaint or information

AN INFORMATION WAS FILED AGAINST X. X FILED A MOTION TO

QUASH AS THE FACTS IN THE INFORMATION DIDNT CONSTITUTE
AN OFFENSE. THIS WAS FILED TOGETHER WITH AN APPLICATION
FOR BAIL. IS THIS VALID?

> Yes. There is no inconsistency that exists between an

application of an accused for bail and his filing of a motion to
quash.

Sec. 2. Form and contents. The motion to quash shall be in

writing, signed by the accused or his counsel and shall
distinctly specify its factual and legal grounds. The court shall
consider no
ground other than those stated in the motion, except lack of
jurisdiction over the offense charged.

WHAT IS THE FORM REQUIRED FOR A MOTION TO QUASH?

1. It must be in writing
2. It must be signed by the accused or his counsel
3. It must specify its factual and legal grounds

Sec. 3. Grounds. The accused may move to quash the

complaint or information on any of the following grounds:

(a) That the facts charged do not constitute an offense;

(b) That the court trying the case has no jurisdiction

over the offense charged;
(c) That the court trying the case has no jurisdiction
over the person of the accused;

(d) That the officer who filed the information had no

authority to
do so;

(e) That it does not conform substantially to the prescribed

form;

(f) That more than one offense is charged except when

a single punishment for various offenses is prescribed by
law;

(g) That the criminal action or liability has been

extinguished;

(h) That it contains averments which, if true, would

constitute a legal excuse or justification; and

(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.

WHAT ARE THE GROUNDS THAT THE ACCUSED MAY INVOKE TO

QUASH A COMPLAINT OR INFORMATION?

1. That the facts charged dont constitute an offense

2. That the court trying the case doesnt have jurisdiction
over the offense
3. That the court trying the case doesnt have jurisdiction
over the accused
4. That the officer who filed the information didnt have authority
to do so
5. That it doesnt conform substantially to the form subscribed
6. That more than one offense is charged except when a
single punishment for various offenses is prescribed by law
7. That criminal liability or action has been extinguished
8. That it contains averments which, if true, would constitute a
legal excuse or justification
9. That the accused has been previously convicted or
acquitted of the offense charged, or the case against him has been
dismissed or otherwise terminated without the consent of the
accused
CAN THE COURT DISMISS THE CASE BASED ON GROUNDS THAT ARE
NOT ALLEGED IN THE MOTION TO QUASH?

> The general rule is no, the court cannot consider any ground
other than those stated in the motion to quash.
> The exception is the lack of jurisdiction over the offense
charged. If this is the ground for dismissing the case, it need not be
alleged in the motion to quash since it goes into the very
competence of the court to pass upon the case.

X FILED A MOTION TO QUASH AN INFORMATION ON THE GROUND

THAT HE WAS IN THE US WHEN THE CRIME CHARGED WAS
COMMITTED. SHOULD THE MOTION BE GRANTED?

> The motion should be denied

> The accused is already making a defense
> Matters of defense are generally not a ground for a
motion to quash they should be presented at the trial

WHAT IS MEANT BY THE STATEMENT THAT A MOTION TO

QUASH HYPOTHETICALLY ADMITS ALLEGATIONS OF FACT
IN THE INFORMATION?

> It means that the accused argues that assuming that the
facts charged are true, the information should still be dismissed
based on the ground invoked by the defendant.
> Therefore, since the defendant assumes that the facts in
the information are true, only these facts should be taken into
account and the court resolves the motion to quash. Other facts,
such as matters of defenses, which are not in the information should
not be considered
> The exceptions to the rule are when the grounds invoked to
quash the information are extinction of criminal liability,
prescription, and former jeopardy. In these cases, additional facts
are allowed.

CAN THE ACCUSED MOVE TO QUASH ON THE GROUND THAT HE IS

DENIED DUE PROCESS?

> No, denial of due process is not one of the grounds for a motion
to quash

WHAT IS THE TEST TO DETERMINE THE VALIDITY OF A MOTION TO

QUASH ON THE GROUND THAT THE FACTS AVERRED IN THE
INFORMATION DONT AMOUNT TO AN OFFENSE?
> The test is whether the facts alleged would establish the
essential elements of the crime as defined by law, and in this
examination, matters aliunde are not considered

X FILED A MOTION TO QUASH ON THE FOLLOWING GROUNDS:

THAT THE COURT LACKED JURISDICTION OVER THE PERSON OF
THE ACCUSED AND THAT THE COMPLAINT CHARGED MORE
THAN ONE OFFENSE. CAN THE COURT GRANT THE MOTION
ON THE GROUND OF LACK OF JURISDICTION?

> In the past, the answer would have been no since the SC ruled
in several cases then that the motion to quash on the ground of lack
of jurisdiction over the person of the accused must be based only
on this ground. If other grounds are included, there is waiver,
and the accused is deemed to have submitted himself to the
jurisdiction of the court.
> The new rule, based on the decisions of the SC on Section 20 of
Rule 14 of the 1997 Rules of Civil Procedure, the inclusion of other
grounds aside from lack of jurisdiction over the person of the
defendant in a motion to dismiss shall not be considered as a
voluntary appearance.

WHAT IS THE EFFECT OF AN INFORMATION THAT WAS SIGNED BY AN

UNAUTHORIZED PERSON?

> A valid information must be signed by a competent officer,

which, among other requisites, confers jurisdiction over the person
of the accused and the subject matter of the accusation
> Thus, an infirmity in the information such as the lack of
authority of the officer signing it cannot be cured by silence,
acquiescence, express consent, or even amendment.

It is an invalid information and cannot be the basis of

criminal proceedings.
> A motion to quash would prosper

WHAT HAPPENS IF THE DEFENDANT ENTERS HIS PLEA BEFORE

FILING A MOTION TO QUASH?

> By entering his plea before filing the motion to quash,

the defendant waives the formal objectives to the complaint or
information
> But if the ground for the motion is any of the following
below, there is no waiver. The following grounds may be raised at
any stage of the proceeding:
1. Failure to charge an offense
2. Lack of jurisdiction over the offense
3. Extinction of criminal liability
4. Double jeopardy
> Note: if it is a formal objection, it is deemed waived upon plea

RULE 119 - TRIAL

Sec. 17. Discharge of accused to be state witness. When two or

more persons are jointly charged with the commission of any
offense, upon motion of the prosecution before resting its case, the
court may direct one or more of the accused to be discharged with
their consent so that they may be witnesses for the state when,
after requiring the prosecution to present evidence and the sworn
statement of each proposed state witness at a hearing in support of
the discharge, the court is satisfied that:

(a) There is absolute necessity for the testimony of the accused

whose discharge is requested;

(b) There is no other direct evidence available for the proper

prosecution of the offense committed, except the testimony of said
accused;

(c) The testimony of said accused can be substantially corroborated

in its material points;

(d) Said accused does not appear to be the most guilty; and

(e) Said accused has not at any time been convicted of any offense
involving moral turpitude.
Evidence adduced in support of the discharge shall automatically
form part of the trial. If the court denies the motion for discharge of
the accused as state witness, his sworn statement shall be
inadmissible in evidence.

Provisional Dismissal

When can a case be provisionally dismissed?

A case can be provisionally dismissed if the following requirements
concur:

1) the prosecution with the express conformity of the accused, or

the accused, moves for a provisional dismissal (sin perjuicio) of his
case; or both the prosecution and the accused move for its
provisional dismissal;

2) the offended party is notified of the motion for a provisional

dismissal of the case;

3) the court issues an order granting the motion and dismissing the
case provisionally; and

4) the public prosecutor is served with a copy of the order of

provisional dismissal of the case. (People vs. Lacson, G.R. No.
149453, April 1, 2003)

Who can move for the provisional dismissal of a case?

1) the prosecution with the express conformity of the accused;

2. the accused; or
3. both the prosecution and the accused.

Why is the consent of the accused required for the

provisional dismissal of his case?

The raison d etre for the requirement of the express consent of the
accused to a provisional dismissal of a criminal case is to bar him
from subsequently asserting that the revival of the criminal case will
place him in double jeopardy for the same offense or for an offense
necessarily included therein. (People vs. Lacson)

How is the express consent of the accused given?

Express consent to a provisional dismissal is given either viva

voce or in writing.

It is a positive, direct, unequivocal consent requiring no inference or

implication to supply its meaning.

Where the accused writes on the motion of a prosecutor for a

provisional dismissal of the case "No objection or With my
conformity", the writing amounts to express consent of the accused
to a provisional dismissal of the case.

A motion of the accused for a provisional dismissal of a case is an

express consent to such provisional dismissal.

The mere inaction or silence of the accused to a motion for a

provisional dismissal of the case or his failure to object to a
provisional dismissal does not amount to express consent.

When does the provisional dismissal become permanent?

1) not exceeding 6 years or fine - The provisional dismissal of

offenses punishable by imprisonment not exceeding 6 years or a
fine of any amount shall become permanent after 1 year without the
case having been revived.

2) more than 6 years - For offenses punishable by imprisonment

of more than 6 years, the provisional dismissal shall become
permanent after 2 years without the case having been revived.

After the provisional dismissal becomes final, the accused cannot be

prosecuted anymore.

When should the 1-year or 2-year period be reckoned for a

provisional dismissal to become permanent?

Although the second paragraph of the new rule states that the order
of dismissal shall become permanent one year after the issuance
thereof without the case having been revived, the provision should
be construed to mean that the order of dismissal shall become
permanent one year after service of the order of dismissal on the
public prosecutor who has control of the prosecution without the
criminal case having been revived. The public prosecutor cannot be
expected to comply with the timeline unless he is served with a
copy of the order of dismissal. (People vs. Lacson)

When may the case be revived?

If a criminal case is provisionally dismissed with the express consent

of the accused, the case may be revived only within the periods
provided in the new rule. On the other hand, if a criminal case is
provisionally dismissed without the express consent of the accused
or over his objection, the new rule would not apply. The case may be
revived or refiled even beyond the prescribed periods subject to the
right of the accused to oppose the same on the ground of double
jeopardy or that such revival or refiling is barred by the statute of
limitations. (People vs. Lacson)

How may the State revive the case?

The State may revive the case within the time-bar either by the:

1. Refiling of the Information or by

2. Filing of a new Information for the same offense or an offense
necessarily included therein.

Is there a need for a new preliminary investigation in case of

revival?

No. There would be no need of a new preliminary investigation if the

State revive the case within the time-bar.

What are some of the instances when a new preliminary

investigation is needed in case of revival?

1. In case wherein after the provisional dismissal of the criminal

case, the original witnesses of the prosecution or some of them
may have recanted their testimonies or may have died or may no
longer be available and new witnesses for the State have
emerged.

2. If aside from the original accused, other persons are charged

under a new criminal complaint for the same offense or necessarily
included therein

3. If under a new criminal complaint, the criminal liability of

the accused is upgraded from that of an accessory to that of
a principal

4. If under a new criminal complaint, the charge has been

upgraded.

Distinguish Motion to Quash from Provisional Dismissal

1. A motion to quash is invariably filed by the accused to question

the efficacy of the complaint or information filed against him or her
(Sections 1 and 2, Rule 117); in contrast, a case may be
provisionally dismissed at the instance of either the prosecution or
the accused, or both, subject to the conditions enumerated under
Section 8, Rule 117.

2. The form and content of a motion to quash are as stated under

Section 2 of Rule 117; these requirements do not apply to a
provisional dismissal.

3. A motion to quash assails the validity of the criminal complaint or

the criminal information for defects or defenses apparent on face of
the information; a provisional dismissal may be grounded on
reasons other than the defects found in the information.

4. A motion to quash is allowed before the arraignment (Section 1,

Rule 117); there may be a provisional dismissal of the case even
when the trial proper of the case is already underway provided that
the required consents are present.

5. A provisional dismissal is, by its own terms, impermanent until

the time-bar applies, at which time it becomes a permanent
dismissal. In contrast, an information that is quashed stays quashed
until revived; the grant of a motion to quash does not per se carry
any connotation of impermanence, and becomes so only as
provided by law or by the Rules. In re-filing the case, what is
important is the question of whether the action can still be brought,
i.e., whether the prescription of action or of the offense has set in.
In a provisional dismissal, there can be no re-filing after the time-
bar, and prescription is not an immediate consideration.

To recapitulate, quashal and provisional dismissal are different

concepts whose respective rules refer to different situations that
should not be confused with one another. If the problem relates to
an intrinsic or extrinsic deficiency of the complaint or information, as
shown on its face, the remedy is a motion to quash under the terms
of Section 3, Rule 117. All other reasons for seeking the dismissal of
the complaint or information, before arraignment and under the
circumstances outlined in Section 8, fall under provisional
dismissal. (Los Baos vs. Pedro, G.R. No. 173588, April 22, 2009)