Demurer

First of all it is the prosecution who will present evidence first. Although
as I told you last time the order of trial may be modified:
If the accused admits the charged but interposes of lawful defense. Otherwise it
is the prosecution that will present evidence first. But then after presenting
evidence, it has no more witness to go, no more witness to present, the
prosecution will rest. Meaning it has given the presentation of evidence. Now,
after the prosecution rests, the court may dismiss the case, the criminal case
on what ground? On the ground of insufficiency of evidence. The evidence
presented by the prosecution cannot satisfy of the requirement of proof beyond
reasonable doubt, so the court files it insufficient.
Question is, Can the court dismiss the case on his own?
Yes, because the rules says it may dismiss the case on ground of insufficiency
of evidence. Alright, upon his own initiative, but after the pleading of a
prosecution an opportunity to be heard upon a demurer to evidence filed by the
accused with or without leave of court. It means that the accused may file a
demurer without leave or court or with leave of court. Id like you to know that
demurer is in the nature of motion to dismiss.
To dismiss the case on what ground? On the ground of insufficiency of
evidence.
So, if it be asked in the bar exam.
What is a demurer to evidence?
Answer:
It is a motion to dismiss on the ground of insufficiency of evidence.
Question: Who files a demurer?
Answer: The accused
Question: Is the accused required to first obtain leave of court?
Answer: No, because you can file demurer even without leave of court.
**Take note: How the question is phrased
Question: Is the accused required to obtain leave of court before filing the
demurer?
Answer: No, because you can file it without leave of court.
Question: May the accused file a demurer
Glemor A. Dagiwa
Crim Pro
Prof:Dean Agranzamendez

with leave of court?

Answer:Yes, without or with leave of court but ,take note that there is
distinction between filing a demurer without leave of court and filing with leave
of court.

So if the accused files a demurer without leave of court then he

waives the right to present evidence and in fact submits the case for
the decision on the basis of the evidence presented by the prosecution.

So what happens if the accused files the demurer without leave of court?
He waives the right to present evidence. Hes submitting the case for decision
on the basis of the evidence presented by the prosecution. So what happens if
the accused files the demurer without leave of court? He waives the right to
present evidence and he submits the case for decision on the basis of the gross
of evidence presented by the prosecution. In fact, he is submitting the case for
decision.
Question is, if the court will decide the case what evidence will the court
consider?
Answer: The evidence submitted by the prosecution.
Question: What about the evidence of the accused?
Answer: He has no evidence.
Why?
Answer: Because he is waiving or he has waived the right to present
evidence.
How did he do that?
Answer: By filing a demurer without leave of court.
So can the accused who files the demurer without leave of court waives his
right to present evidence?
****In a real life situation thats a risky decision.
Question: What about if the accused files demurer with leave of court?
Answer: Demurer may be denied or granted.
Who files demurer of evidence with leave of court?
What will happen to this demurer?
Answer: Well, it may be granted or denied.
Glemor A. Dagiwa
Crim Pro
Prof:Dean Agranzamendez

IF denied
Question: What is the remedy of the accused who files a demurer of evidence
with leave of court if it is denied?
Answer: To present evidence.
An accused who files a demurer with leave of court does not lose his
right to present evidence in the event his demurer is denied by the
Look:
X, accused
PP
Prosecution rested its case. X filed a demurer with leave of court and then his
demurer is denied.
Question:
What is the next thing to happen?
Answer: Well, simply put him into trial with the accused presenting
evidence this time.
So lets say, youre the counsel representing the accused which is the better
option:

Filing a demurer without leave or filing a demurer with leave?

Answer: With leave because you can still present evidence.

Question: If the case is dismissed, is that appealable? No.

Question: What happens of the demurer is granted?
Answer: It is equivalent to acquittal and you cannot appeal from a
judgment of acquittal.
--Demurer is granted the case is dismissed.
Question: On what basis was the case dismissed?
Answer: On the basis that the evidence is not sufficient. That is the
adjudication of the case on its own merit. It is a dismissal on the basis
of insufficiency of evidence, and that in fact is equivalent to an
acquittal.

Glemor A. Dagiwa
Crim Pro
Prof:Dean Agranzamendez

So if it is an acquittal, Can u appeal from a judgment of acquittal in a

criminal case?
Answer: No because you have the principle known as finality of acquittal rule.
QUESTION:
If the state cannot appeal from an order granting demurer of evidence, is
there any remedy at all?
Question:
If appeal is not directing against an order granting demurer, is there any
remedy at all?
Answer: Yes.
How does it happen that an accused files demurer with leave of court?
How does it come about?
Answer: Rules of court, within five days from within a non-extendable period of
five days from the time the prosecution rested its case. The accused may ask
motion for leave to file demurer to evidence.
The name of the motion is motion for leave to file demurer to
evidence.
Question: Is this the demurer now?
Answer: Not yet .Its just a motion asking the court to grant the accused with
leave of court.
Question: What will happen to this motion?
Answer: It may be granted or denied
The court issued an order denying your motion.

Question: Can you file a demurer just the same?

Answer: Yes. In this case you are filing it without leave of court.
Question: Can you file notwithstanding denying your motion with leave?
Can you file demurer just the same?
Answer: Yes, but this time without leave of court.
Question:
Suppose your demurer is granted then the court says, within ten days
from the time, notice of order granting the demurer the accused may now file
demurer to evidence.
Glemor A. Dagiwa
Crim Pro
Prof:Dean Agranzamendez

Look now, youre filing it with leave of court.

Lets say, youre filing it with leave of court then your demurer is denied you can
still present evidence.
If granted, ----congrats--Question: What instances that the accused files demurer without leave of
court:
1. If the accused files a demurer notwithstanding denial of his
motion for leave to file demurer to evidence.
The accused the demurer notwithstanding denial of his motion
for leave to file demurer to evidence.
2. He files demurer without even filing the motion with leave,
In which case , you are filing it without leave of court
If the demurer is granted then no appeal can be appealed because
thats a judgment from acquittal and that is not appealable.
Question: If appeal is not the remedy, is there a remedy at all.
Answer: Yes. The remedy is petition for certiorari under rule 65 of the rules of
court.
Take note that the petition for certiorari is available in the following
instances:
1. If in granting the demurer, the court acted with grave abuse of
discretion amounting to lack or excess of jurisdiction.
Example: Let us say, that there a case PP v X for falsification of public
document.
The prosecution presented evidence (Witness).The prosecution asked to
reset the case because according to the fiscal the next witnesses not
available and the next witness will testify on the document of X have
been falsified but the court did not allow the prosecution to reset the
case.
The fiscal, your honor please the next witness it witness#2 which is in
Sagada on official business and with this testimony the court proved the
identity of the accused.
The court says, Im not allowing you to present the next W. You present
you Witness or else you will rest your case. ---Forced to rest its case---.
Glemor A. Dagiwa
Crim Pro
Prof:Dean Agranzamendez

Then the accused files a demurer to evidence arguing that his

identity has not been established by any evidence.
The court granted the demurer and dismissed the case.
Look: you cannot appeal but you can file petition for certiorari in
refusing or not allowing the resetting of the case. The court acted
with grave abuse of discretion.
Take note: The issue in an appeal is the correctness of judgment. Youre raising
the issue of correctness of the judgment. But in petition for certiorari youre
raising the issue of validity of judgment. Thats why the right of the accused
against double jeopardy is not availed because you are questioning the validly
of judgment. Youre saying the judgment is void. Void because it is rendered by
the court with grave abuse of discretion amounting to lack or excess of
jurisdiction. So the court will set aside the judgment.
2. If the state is denied due process.
Take note:
Lets say you go to trial, the prosecution presented evidence. The accused
presented evidence and let us say for purposes of this example that the
evidence of the prosecution is more credible than the evidence presented
by the accused. But when the court evaluated the evidence, the court
sided with the version of the accused and therefore it rendered the
judgment acquitting the accused .Let us say that the court is wrong in
acquitting the accused but the acquittal is based on the consideration of
the evidence of the accused.
Question:
Is the judgment of acquittal valid?
Answer:
Yes. It is valid even if wrong
Can you appeal?
Answer: No, because if it is a judgment from acquittal even if wrong it is
final from the time it is promulgated. Final from its rendition.
Let us say, that there a demurer to evidence and the court granted it.Let
us say made a mistake when it granted the demurer .Because with leave
the evidence is sufficient but the court says, it is not sufficient.
Glemor A. Dagiwa
Crim Pro
Prof:Dean Agranzamendez

Question: Can you appeal?

Answer:No. because that order dismissing is final from its rendition.
Rule finality of acquittal rule.
Is the re any remedy?
Answer: Yes. Petition for certiorari. In the following instances (SAME SA
TAAS):
GAMA vs. Sandiganbayan
Ruling: Marcos said, Magmuro muro na lang kayo diyan
The court after the prosecution has rested its case, the court will
dismiss

the

criminal

action

after

giving

the

prosecution

an

opportunity to be heard .Or upon a demurer to evidence filed by the

accused with or without leave of court.
In a civil action, there is also a demurer to evidence filed by the defendant. So
defendant files. Now,
Question: Should the defendant still obtain leave of court so that he can file
demurer to evidence?
Answer: No. The defendant is not required to obtain leave of court. Meaning,
there is no requirement of obtaining with leave of court in civil cases when it
comes to filing demurer to evidence.
Plaintiff vs. Defendant (civil case)
The plaintiff presents its evidence and rested its case. Then the defendant may
file a demurer to evidence. Instead of presenting evidence, the defendant may
file a demurer to evidence.
Question: Is it required that the defendant is first required to obtain leave of
court?
Answer: No, no need
Question: What will happen to the demurer filed by the defendant?
Answer: It may be denied or granted.
----If denied
What is the remedy of the defendant?
Glemor A. Dagiwa
Crim Pro
Prof:Dean Agranzamendez

Answer: His remedy is, he can present his evidence.

----But if the demurer is granted,
Question: What happens to the case?
Answer: The case is dismissed. If the demurer is granted.
Question: Who is the party adversely affected?
Answer: The plaintiff.
Question: SO what is the remedy of the plaintiff?
Answer:The remedy of the plaintiff is appeal to the appellate court.
MTC- RTC
RTC-CA
The case is now with the appellate court.
Question:What will the appellate court do?
Answer: Either sustain the dismissal or reverse the dismissal.
Now, Let us say that the appellate court reverses the dismissal. Then it will
render judgment based on the evidence presented by the plaintiff. In that sense
the defendant has lost the right to present evidence.
RTCCA. What did the RTC do? It dismissed the case because it granted the
demurer.
Plaintiff is the appellant, in this case. The Ca will either sustain or reverse. CA
sustained the dismissal or the dismissal of the RTC is correct but let us say
in the mind of the court of appeals the dismissal is not correct then it
will reverse the dismissal. But the court of appeals will not remand the
case to the RTC, the CA will not sent back the case to the RTC. Instead, if
the CA reverses the dismissal, it will render judgment based on the
evidence presented by the plaintiff. In that sense, the defendant waives
the right to present evidence.
Take note: When the defendant files a demurer he need not present evidence.
Its just granting the insufficiency of evidence.
Glemor A. Dagiwa
Crim Pro
Prof:Dean Agranzamendez

Question: What is the ground in civil case of demurer to evidence?

Answer: The ground is also insufficiency of evidence.
Except that in the rules of court: the defendant may move to dismiss
on the ground that upon the facts and the law the plaintiff has shown no
right to relief. If his motion is denied, he shall have the right to present
evidence. If the motion is granted but on appeal the order of dismissal is
reversed he shall be deemed to have waived the right to present evidence.
PP vs. X
The prosecution presented evidence and then rested its case. Then the accused
filed a demurer to evidence.
Demurer to evidence may be granted or denied.
IF denied,
Question: Can the accused present evidence.
Answer: It depends whether
evidence with leave of court.

the

accused

filed

demurer

to

If Granted,
Question: May the plaintiff appeal from the order granting demurer to
evidence?
Answer: No.
Question: If the case is dismissed in civil action. May a plaintiff
appeal.
Answer:Yes.
Question: If the case is dismissed in a criminal action. May a
plaintiff appeal?
Answer:No. because in criminal the case the accused has the right
against double jeopardy and appeal from the order of dismissal raised the right
of the accused against double jeopardy.
Suppose the dismissal in criminal case is wrong.
Glemor A. Dagiwa
Crim Pro
Prof:Dean Agranzamendez

Question: Can you appeal?

Answer: No.
In the same way, let us say that you presented the evidence. The prosecution
presented evidence, there is no evidence the prosecution presented. The
accused also presented evidence. But then the court acquitted the accused.
And then you say the acquittal is wrong can you appeal?
Answer: No, you cannot appeal because judgment on acquittal is final upon
promulgation.
Suppose, we would like to obtain further remedy. The only remedy is a petition
for certiorari and denied but you have to show in court in granting the demurer
the court acted with graved discretion amounting to lack or excess of jurisdiction
or b. The state is denied due process.
You can prove that the judgment from acquittal was obtained by means of
corruption. Then you can file a petition for certiorari because in there it is
obvious that the judgment is obtained by means of corruption, the state is
denied of due process.
If motion for leave is denied and he files a demurer to evidence just
the same. Then he is filing the motion without leave court.
CRIMINAL CASE: PROOF BEYOND REASONABLE DOUBT. If that requirement
has not been met then evidence is insufficient but in CIVIL CASE: Also
insufficiency of evidence but the basis is preponderance of evidence.
Question: How would you know whether sufficient of insufficient?
Answer: You have to look at the quantum of evidence.
LOOK: the other party has the right to oppose any motion.
In resolving the demurer, should the court also pass upon the civil liability of
the accused?
PP vs. X, accused
X- Files a demurer
May a prosecution file a demurer?
Glemor A. Dagiwa
Crim Pro
Prof:Dean Agranzamendez

No.
September 10,2014
PP vs. X
RTC

Grant Means case is dismissed = amounts to acquittal

Deny
1. If the demurer was filed without leave of court then the accused will also pass
upon the civil liability of the accused. Except:
a. The offended party has waived his civil liability
b. Reserved the right to file a separate civil action
c. Instituted civil action prior to criminal action
- The demurer may be granted or denied
Question: In excluding demurer to evidence ,may the court still hold the accused
for civil liability?
Answer: It depends:
a. The act or omission of the offense charged, the civil liability did not
exist.
b. The liability is only civil
c. The offense does not arise from the offense charged.
IF Denied: The accused is found guilty, the accused is civilly liable.
2. Demurer to evidence is filed with leave of court
A. If the court denies demurer- The accused will present evidence both as to the
criminal and civil aspects of the case. Then the court will resolve and decide
it both as to criminal and civil but it will not resolve the civil if:
a. The offended party has waived his civil liability
b. He reserved the right to file a separate civil action
c. Instituted civil action prior to criminal action
Then there is not civil aspect
B. If the court granted the demurer In the opinion or mind of the court, the
evidence presented by the prosecution insufficient to prove the guilt of the
accused beyond reasonable doubt.
Question: Does it mean there is no more civil liability?
Answer: The same evidence may be deemed sufficient to prove the claim of
the offended party by preponderance of evidence. The court should require
the accused to present evidence on the civil aspect of the case. Except if:
a. The offended party has waived his civil liability.
b. He reserved the right to file a separate civil
action
c. Instituted civil action prior to criminal action
Means there is no civil aspect

Glemor A. Dagiwa
Crim Pro
Prof:Dean Agranzamendez

DISCHARGED OF THE ACCUSED TO BE UTILIZED AS A STATE WITNESS

REQUISITES:
1. There should be several accused. It happens when two or more accused X,
Y, Z. One of them will be removed from the indictment. The accused will
be discharged as a state witness against the remaining accused.
2. Before the prosecution rest. It will file a motion in court asking one of the
accused to be discharged.
3. The discharged being requested should be with the consent of the
accused who is sought to be discharged.
4. There should be a hearing on the motion for the discharged of the
accused. At the prosecution shall present the sworn statement of the
accused whose discharged is being requested and shall present evidence.
AFTER THE HEARING, the court is satisfied that:
1. that there is absolute necessity for the testimony of the accused whose
discharged is requested.
2. There is no other direct evidence available for the proper prosecution of
the offense committed, except the testimony of said accused.
3. The testimony of said accused can be substantially corroborated in its
material points.
4. The accused does not appear to be the most guilty.
5. He has not been convicted of any crime involving moral turpitude. The
court will issue an order discharging the accused.
September 16, 2014
HEARING ON MOTIONS is not a trial but a motion itself.
At the hearing- prosecution presents sworn statement along with the
documents.
1. There is absolute necessity for the testimony of the accused whose
discharge is requested.
2. There is no other direct evidence available for the proper prosecution
of the offense committed, except the testimony of said accused.
PP VS. ABC
If the court issues an order granting the discharge of the accused. The
order shall operate an acquittal.
QUESTION: Who can file the motion?
ANSWER: The prosecution.
PP vs. Makeda
The accused files motion to be discharged. He is
the least guilty.

Glemor A. Dagiwa
Crim Pro
Prof:Dean Agranzamendez

SC: Sustained the conviction on the ground of the

motion filed by the accused (Makeda).
The accused whose discharge is requested. Should make sworn
statement and shall mention his participation in the commission of the other.
Otherwise he could not testify.
QUESTION: BAR: In the sworn statement whose discharge is being requested
admissible evidence.
ADMISSIBILITY: Relevant and competent.
LET us say X is under investigation. Police asked questions without the assistance of
the counsel.
Question: How about the sworn statement of the accused?
Answer: If the motion is denied the sworn statement of the accused whose
discharge is being requested is not admissible evidence.
IF granted then his Sworn Statement is admissible evidence.
Sworn Statement- Granted (Admissible), Denied (Not admissible)
Now. If the motion is granted and the court issues an order. The accused cannot be
included in the complaint or information.
Question: Can you re-include in the complaint or information?
Answer: No.
Except in two instances:
1. If he refuses to testify; or
2. He testifies in a manner inconsistent with his sworn statement
SITUATION 1: Prosecution: You mentioned in your sworn statement that at
5:00 evening , you were in the disco bar.Accused-, wala akong sinabing
ganyan
He can be reincluded in the complaint or information because he has
been mislead in discharging him.

SITUATION 2: PP vs. XYZ

Among the witnesses mentioned by the prosecution alleged (W) asn
the eye witness.W, disappeared so the fiscal ask X to be discharged as a state
witness. Xs discharged was granted. During the testimony, W suddenly appeared
and presented as the witness. The fiscal decided not to discharge X.
QUESTION: Can you re-include him in the complaint or information?

Glemor A. Dagiwa
Crim Pro
Prof:Dean Agranzamendez

Answer: No, because he (X) is not testifying as a witness. He was not called to
testify, it was not his fault when the fiscal said no need for him to testify. Therefore,
he(X) cannot be re-included in the complaint or information.
SITUATION 3: PP vs. XYZ
Fiscal- I will X, as a witness and he(X) went to witness stand. Y and Z objected
on the presentation of X as a witness on the following grounds: Fiscal must file a
motion, there must be a hearing, presentation of evidence and the court must
evaluate the evidence.
QUESTION: If you were the judge, how would you rule on the judgment?
ANSWER: Overrule the objection, meaning X can testify
QUESTION: What about the objection of the fiscal
ANSWER: The court must be satisfied that the accused is not being compelled
by means of fraud, intimidation, threat, violence and that he understands the effect
and consequences of his testimony

Glemor A. Dagiwa
Crim Pro
Prof:Dean Agranzamendez