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, WHA

T 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 T

HINKS 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 DISM
ISSES 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 WI

THOUT 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 hasn’t 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 DE

MURRER 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 doesn’t
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