12.

Remedy when a mistake has been made in charging the proper offense (Section 19, Rule 119)

Section 19. Remedy when a mistake has been made in charging the proper offense. When it becomes
manifest at any time before judgment that a mistake has been made in charging the proper offense and
the accused cannot be convicted of the offense charged or any other offense necessarily included therein,
the accused shall not be discharged if there appears good cause to detain him. In such case, the court shall
commit the accused to answer for the proper offense and dismiss the original case upon the filing of the
proper information.

When such mistake is committed, the accused cannot be convicted of the offense charged, or any other
offense therein. Hence, the court shall order the filing of a new information. And upon filing of such
information, the court shall dismiss the original case and shall commit the accused to answer for the
proper offense. The accused shall not be discharged if there appears good cause to detain him.

13. Exclusion of the public from the courtroom during the trial (Section 21, Rule 119)

Section 21. Exclusion of the public. The judge may, motu proprio, exclude the public from the courtroom
if the evidence to be produced during the trial is offensive to decency or public morals. He may also, on
motion of the accused, exclude the public from the trial, except court personnel and the counsel of the
parties.

There are some exceptions to public trials when the judge determines that making the proceedings
public would pose a serious risk of harm. This allows them to limit the spectators to courtroom
personnel. However, a judge must consider less restrictive alternatives to closing the courtroom if they
would protect the defendant’s right to a fair trial and adequately protect the public safety. Alternatives
might involve preventing the media from attending the trial or limiting public attendance.

Some situations in which complete closure may be appropriate include cases involving gang activities,
sex crimes, and crimes that offend public notions of decency. If a court is trying a case involving
organized crime, safety issues might warrant closing the courtroom to protect witnesses and court
personnel. Sometimes a judge may close a courtroom to protect the identity of a rape victim, a child
victim, or an undercover police officer. If the evidence presented in the case involves depictions of
graphic sex or violence, the judge may feel that these materials should not be exposed to public view.
Cases involving the theft of confidential information may require a judge to close the courtroom, since
publicly disclosing the information could harm the victim.

14. Consolidation of trials of related offenses (Section 22, Rule 119)

Section 22. Consolidation of trials of related offenses. — Charges for offenses founded on the same facts or
forming part of a series of offenses of similar character may be tried jointly at the discretion of the court.
 1. When can different offenses be tried jointly?

- When the offenses are founded on the same facts or from part of a series of offenses
of similar character, the court has the discretion to consolidate and try them jointly

2. What is the purpose of consolidation?

- It is to avoid multiplicity of suits, guard against oppression or abuse, prevent delay, clear
congested dockets, simplify the work of the trial court, save unnecessary costs and expenses

3. Can those related to civil liability arising from a crime be consolidated?

- Yes. As a general rule, every person criminally liable is also civilly liable. Any criminal action
generally is consolidated with the civil action unless there is a positive action coming from the
offended party or the accused.

4. Can those related to civil liability not arising from a crime be consolidated?

- As a general rule, independent civil actions are not constituted with the criminal action. They
proceed independently from the criminal action.

15. The formal offer of evidence

Section 34. Offer of evidence. — The court shall consider no evidence which has not been formally offered.
The purpose for which the evidence is offered must be specified.

Offer of evidence
- Pursuant to the Revised Guidelines for Continuous Trial of Criminal Cases, the offer of evidence,
the comment/objection thereto, and the court ruling thereto shall be made orally. A party is
required to make his/her oral offer of evidence on the same day after the presentation of his/her
last witness, and the opposing party is required to immediately interpose his/her oral
comment/objection thereto. Thereafter, the court shall make a ruling on the offer of evidence in
open court.

In making the offer, the counsel shall cite the specific page numbers of the court record where
the exhibits being offered are found, if attached thereto. The court shall ensure that all exhibits
offered are submitted to it on the same day of the offer.

If the exhibits are not attached to the record, the party making the offer must submit the same
during the offer of evidence in open court (A.M. No. 15-06-10-SC[13][c]).
Case: Heirs of Pasag, et al. V Sps. Parocha, et al., 27 Apr 2007 - The rule on formal offer of evidence is not
a trivial matter. Failure to make a formal offer within a considerable period of time shall be deemed a
waiver to submit it. Consequently, as in this case, any evidence that has not been offered shall be
excluded and rejected.

a. What is a formal offer of an evidence?

Formal offer means that the offering party shall inform the court of the purpose of introducing
its exhibits into evidence, to assist the court in ruling on their admissibility in case the adverse
party objects. (G.R. No. 192150, October 01, 2014 FEDERICO SABAY, Petitioner, v. PEOPLE OF THE
PHILIPPINES, Respondent.)

b. When is the formal offer of evidence made?

A party is required to make his/her oral offer of evidence on the same day after the presentation
of his/her last witness, and the opposing party is required to immediately interpose his/her oral
comment/objection thereto. (Item 13 (c) A.M. No. 15-06-10-SC)

c. How does a party make a formal offer of evidence?

C.) Offer of evidence. – The offer of evidence, the comment/objection thereto, and the court
ruling thereto shall be made orally. A party is required to make his/her oral offer of evidence on
the same day after the presentation of his/her last witness, and the opposing party is required to
immediately interpose his/her oral comment/objection thereto. Thereafter, the court shall make
a ruling on the offer of evidence in open court.

In making the offer, the counsel shall cite the specific page numbers of the court record where
the exhibits being offered are found, if attached thereto. The court shall ensure that all exhibits
offered are submitted to it on the same day of the offer.

If the exhibits are not attached to the record, the party making the offer must submit the same
during the offer of evidence in open court. Item 13 (c) A.M. No. 15-06-10-SC

d. What is the effect of a failure to make a formal offer of evidence?

Section 34 of Rule 132 of our Rules on Evidence provides that the court cannot consider any
evidence that has not been formally offered.

“The formal offer of evidence allows the parties to object to the presentation of an
evidence which may not be admissible for the purpose for which it is offered. “(Laborte
vs. Pagsanjan Tourism Consumer’s cooperative, G.R. No. 183860, January 15, 2014)

“A piece of document will remain a scrap paper without probative value unless and until
admitted by the court in evidence for the purpose or purposes for which it is offered.
(Laborte vs. Pagsanjan Tourism Consumer’s cooperative, G.R. No. 183860, January 15, 2014)
 e. What are the instances when the court may still consider evidence not formally offered?
Evidence, not previously offered, can be admitted, namely: first, the evidence must have been
duly identified by testimony duly recorded and, second, the evidence must have been
incorporated in the records of the case. (People v. Napat-a, 21People v. Mate, 22 and The Heirs of
Romana Saves, et al. v. The Heirs of Escolastico Saves, et al., 23)

16. Demurer to Evidence (Section 23, Rule 119)

Section 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. (15a)

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. (n)

Demurer to Evidence, defined.

▪ It is an objection by one of the parties in an action to the effect that the evidence
which his adversary produced is insufficient in point of law, whether true or not, to
make out a case or sustain the issue.

▪ A demurer to evidence is actually a motion to dismiss that is filed by the accused

after the prosecution has rested its case. Hence, a demurrer to evidence filed
before the prosecution rests its case is premature. (Magleo v. De Juan Quinagoran,
739 SCRA 628, 637, November 12, 2014).

GROUND OF THE DEMURER TO EVIDENCE

▪ The ground of the demurrer to evidence is insufficiency of the evidence of the
prosecution:
 “Section 23. Demurrer to evidence. — After the prosecution rests its case, the
court may dismiss the action on the ground of insufficiency of evidence xxx”

THUS, to defeat the demurer to evidence filed, the prosecution must show that there is sufficient
evidence to sustain the case.

“Sufficient Evidence” is such evidence in character, weight, or amount as will legally justify the
judicial or official action demanded according to circumstances. To be sufficient, the evidence
must prove:
1. the commission of the crime; and
2. the precise degree of participation therein by the accused
(Singian v. Sandiganbayan, 706 SCRA 451, 468-469. September 30, 2013)
▪ In a demurer to evidence, the accused challenges the insufficiency of the entire
evidence of the prosecution and asserts that the prosecution failed to prove the
guilt of the accused beyond reasonable doubt.
▪ Involves whether the evidence presented by the prosecution has established the
guilt of the accused beyond reasonable doubt.

STANDARD OF PROOF IN A DEMURER TO EVIDENCE

▪ The standard proof in a demurer is proof beyond reasonable doubt and is
different from the standard of proof in a petition for bail in which the trial court’s
inquiry is limited only to whether there is evident proof that the accused is guilty
of the offense charged (Napoles v. Sandiganbayan, G.R. No. 224162, February 6,
2018).
GRANT OR DENIAL OF A DEMURER TO EVIDENCE
▪ The grant or denial of a demurer to evidence is left to the sound discretion of the
trial court, and its ruling on the matter shall not be disturbed in the absence of a
grave abuse of discretion (People vs. Go, G.R. No. 191015, August 6, 2014).

I. DEMURER TO EVIDENCE IN THE RULES OF COURT

A. Who may avail?
The accused or the court in its own initiative, provided that the court shall do so after
giving the prosecution opportunity to be heard

“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 xxx” (Sec. 23, Rule 119 of the Rules of
Court)
B. Leave of Court
The demurer to evidence filed by the accused may be
➢ with leave of court; or
➢ without leave of court

B.1. Demurer to Evidence by the accused WITH leave of court

▪ The motion for leave of court to file a demurer to evidence shall specifically state
its grounds and shall be within a non-extendible period of 5 days after prosecution
rests its case. The prosecution may oppose the motion within a non-extendible
period of 5 days from its report.
▪ If the motion is granted = the accused shall file a demurrer to evidence within a
non-extendible period of 10 days from notice.
Note: Prosecution may oppose the demurer within a similar period from
its receipt

Demurer to Evidence (with leave of court)

Granted Denied
If the court grants the demurrer, If the court denies the demurrer filed with leave of court,
the case is dismissed. the accused may adduce evidence in his defense.

As a rule, an order granting
demurrer to evidence amounts to
an acquittal (Mupas vs. People of
the Philippines, 659 SCRA 56, 67)
The proper remedy of the accused in case of denial, is to
present his evidence, then to appeal IN CASE HE IS
CONVICTED. (Reason: the order denying a motion for leave
of court shall not be reviewable by the appeal or certiorari
before judgment)

B.2. Demurer to Evidence by the accused WITH leave of court

A demurer to evidence may also be filed by the accused without leave of court.

Demurer to Evidence (without leave of court)

Granted Denied
If the court grants the demurrer, the o If the demurrer is denied, the accused
case is dismissed and the effect is an waives the right to present evidence and
acquittal. submits the case for judgement on the basis
of the evidence for the prosecution (Sec. 23,
Rule 119 of the Rules of Court; People vs.
Cristobal, 646 SCRA 599. 612)

o When a demurrer to evidence is filed

without leave of court, the whole case is
 submitted for judgement on the basis of the
evidence for the prosecution as the accused
is deemed to have waived the right to
present evidence. At that juncture, the court
is called upon to decide the case, including
its civil aspect, unless the enforcement of the
civil liability by a separate civil action has
been waived or reserved. (Hun Hyung Park v.
Eung Won Choi, 515 SCRA 502, 512-513).

II. DEMURER TO EVIDENCE UNDER THE REVISED GUIDELINES FOR CONTINUOUS TRIAL IN
CRIMINAL CASES (A.M. No. 15-06-10-SC)
Note: A.M. No. 15-06-10-SC [III] [8] [d] slightly modified the rules on demurer to evidence in
the Rules of Court

1. Inquiry from the accused instead of dismissing the action on its own initiative

Demurer to Evidence
A.M. No. 15-06-10-SC [III] [8] [d] Section 23, Rule 119 of the ROC
“After the prosecution has rested its “After the prosecution rests its case, the court
case, the court shall inquire from the may dismiss the action on the ground of
accused if he/ she desires to move insufficiency of evidence (1) on its own
for leave of court to file a demurrer initiative after giving the prosecution the
to evidence, or to proceed with the opportunity to be heard or (2) upon demurrer
presentation of his/her evidence.” to evidence filed by the accused with or
without leave of court.”
Explanation: This rule leaves to the discretion of the accused whether or not a demurrer shall
be made. Instead of dismissing the action on its own initiative, the court is now mandated to
inquire from the accused if he desires to move for leave of court to file a demurrer to
evidence.

2. Oral leave of Court

If the accused orally moves for leave of court to file a demurrer to evidence, the court shall
orally resolve the same.” A.M. No. 15-06-10-SC [III] [8] [d, par. 2]

Explanation: This modification seeks to avoid the waste of time in preparing and filing a
written motion for leave. Under this rule, oral leave of court is now expressly allowed.

3. If motion for leave of court is denied

If the motion for leave is denied, the court shall issue an order for the accused to present and
terminate his/her evidence on the dates previously scheduled and agreed upon, and to orally
 offer and rest his/her case on the day his/her last witness is presented. (A.M. No. 15-06-10-SC
[III] [8] [d, par. 2])

Explanation: If motion for leave is denied, accused is still allowed to adduce evidence in his
defense

4. If motion for leave of court is denied but accused insisted to file demurrer to evidence (A.M.
No. 15-06-10-SC [III] [8] [d, par. 3])
If despite the denial of the motion for leave, the accused insists on filing the demurrer to
evidence, the previously scheduled dates for the accused to present evidence shall be
cancelled.

Explanation: Even if the motion for leave of court is denied, the accused may still insist on
filing a demurrer to evidence.

EFFECT/S:
▪ Previously scheduled dates to present evidence shall be cancelled.
▪ Demurrer shall be deemed as a demurrer without leave of court

5. Period to file demurrer to evidence, comment, and period for the resolution of the demurrer
(A.M. No. 15-06-10-SC [III] [8] [d, par. 4])

▪ When to file demurrer to evidence within non-extendible period of 10-calendar days form
the date of the leave of court is granted.
▪ When to file corresponding comment: within non-extendible period of 10 calendar days
from the date of the receipt of the demurrer to evidence.
▪ When to resolve the demurrer to evidence: within non-extendible period of thirty (30)
calendar days from date of the filing of the comment or lapse of the ten (10)-day period
to file the same.

6. If motion to leave of court is granted, but subsequent demurrer to evidence is denied (A.M.
No. 15-06-10-SC [III] [8] [d, par. 5])

If the motion for leave of court to file demurrer to evidence is granted, and the subsequent
demurrer to evidence is denied, the accused shall likewise present and terminate his/her
evidence (one day apart, morning and afternoon) and shall orally offer and rest his/her case
on the day his/her last witness is presented.

Explanation: Under this Rule, the accused may still present his evidence PROVIDED that his
demurrer to evidence was filed WITH leave of court, instead of filing a petition for certiorari
 to review the order denying the demurrer. (NOTE: A petition for certiorari is PROHIBITED under
Section 23 of Rule 119).

III. MOTION TO DISMISS VIS A VIS DEMURER TO EVIDENCE

Not every motion to dismiss is a demurrer to evidence. A motion to dismiss which is not grounded
upon the insufficiency of the evidence is not a demurrer to evidence under Section 23, Rule 119
of the Rules of Court. [Case in Point: Cabador v. People, 602 SCRA 760, 764]

What is the effect of granting a demurrer to evidence?

It bears to stress that the fundamental philosophy behind the constitutional proscription against
double jeopardy is to afford the defendant, who has been acquitted, final repose and safeguard him from
government oppression through the abuse of criminal processes.

In the case of People v. Ting and Garcia, G.R. No. 221505, 12-05-18, it provided that demurrer to
evidence is filed after the prosecution has rested its case and the trial court is required to evaluate
whether the evidence presented by the prosecution is sufficient enough to warrant the conviction of
the accused beyond reasonable doubt. If the court finds that the evidence is not sufficient and grants
the demurrer to evidence, such dismissal of the case is one on the merits, which is equivalent to the
acquittal of the accused. Well-established is the rule that the Court cannot review an order granting the
demurrer to evidence and acquitting the accused on the ground of insufficiency of evidence because to
do so will place the accused in double Jeopardy.

The rule on double jeopardy, however, is not without exceptions. It has been held in the past that
the only instance when the accused can be barred from invoking his right against double jeopardy is
when it can be demonstrated that the trial court acted with grave abuse of discretion amounting to lack
or excess of jurisdiction, such as where the prosecution was not allowed the opportunity to make its
case against the accused or where the trial was a sham.

The grant of a demurrer is tantamount to an acquittal and the dismissal order may not be appealed
because this would place the accused in double jeopardy. If the court finds that the evidence is not
sufficient and grants the demurrer to evidence, such dismissal of the case is one on the merits, which is
equivalent to the acquittal of the accused. Well-established is the rule that the Court cannot review an
order granting the demurrer to evidence and acquitting the accused on the ground of insufficiency of
evidence because to do so will place the accused in double Jeopardy.

Double Jeopardy Attaches if the following elements are present:

(1) a valid complaint or information;
(2) a court of competent jurisdiction;
(3) the defendant had pleaded to the charge; and
 (4) the defendant was acquitted or convicted, or the case against him was dismissed or otherwise
terminated without his express consent.

The right of the accused against double jeopardy is protected by no less than the Bill of Rights
(Section 21, Article III) contained in the 1987 Constitution which provides that “[n]o person shall be twice
put in jeopardy of punishment for the same offense. If an act is punished by a law and an ordinance,
conviction or acquittal under either shall constitute a bar to another prosecution for the same act.” Time
and again, the Court has held that double jeopardy attaches if the following elements are present: (1) a
valid complaint or information; (2) a court of competent jurisdiction; (3) the defendant had pleaded to
the charge; and (4) the defendant was acquitted or convicted, or the case against him was dismissed or
otherwise terminated without his express consent.

Jurisprudence, however, allows for certain exceptions when the dismissal is considered final even if
it was made on motion of the accused, to wit: (1) “[w]here the dismissal is based on a demurrer to
evidence filed by the accused after the prosecution has rested, which has the effect of a judgment on
the merits and operates as an acquittal[; and] (2) [w]here the dismissal is made, also on motion of the
accused, because of the denial of his right to a speedy trial which is in effect a failure to prosecute.

It has been held in the past that the only instance when the accused can be barred from invoking
his right against double jeopardy is when it can be demonstrated that the trial court acted with grave
abuse of discretion amounting to lack or excess of jurisdiction, such as where the prosecution was not
allowed the opportunity to make its case against the accused or where the trial was a sham.

An acquittal by virtue of a demurrer to evidence may be subject to review via a petition

for certiorari under Rule 65 of the Rules of Court, not by a petition for review under Rule 45. In the
instant case, the Court finds that the elements of double jeopardy are present herein. A valid
information was filed against respondents for violation of Section 261(w)(b) of the Omnibus Election
Code resulting in the institution of a criminal case before the proper court of competent jurisdiction.
Subsequently, respondents pleaded not guilty to the offense charged and were acquitted; the dismissal
of the case against them being based on a demurrer to evidence filed after the prosecution rested its
case. It must be noted, moreover, that while an acquittal by virtue of a demurrer to evidence may be
subject to review via a petition for certiorari under Rule 65 of the Rules of Court, not by a petition for
review under Rule 45 like in this case, there is no showing that the RTC committed grave abuse of
discretion amounting to lack or excess of jurisdiction or a denial of due process.

Grave abuse of discretion has been defined as that capricious or whimsical exercise of judgment
which is tantamount to lack of jurisdiction. The abuse of discretion must be patent and gross as to
amount to an evasion of a positive duty or a virtual refusal to perform a duty enjoined by law, or to act
at all in contemplation of law, as where the power is exercised in an arbitrary and despotic manner by
reason of passion and hostility. The party questioning the acquittal of an accused should be able to
clearly establish that the trial court blatantly abused its discretion such that it was deprived of its
authority to dispense justice.

For an acquittal to be considered tainted with grave abuse of discretion, there must be a showing
that the prosecution’s right to due process was violated or that the trial conducted was a sham.

17. Reopening of Proceedings (Section 24, Rule 119)

Section 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.

Rivac vs. People of the Philippines (G.R. No. 224673, January 22, 2018)

Requirements for Reopening a Case:

(1) the reopening must be before the finality of a judgment of conviction;
(2) the order is issued by the judge on his own initiative or upon motion;
(3) the order is issued only after a hearing is conducted;
(4) the order intends to prevent a miscarriage of justice; and
(5) the presentation of additional and/or further evidence should be terminated within thirty days
from the issuance of the order.

A motion to reopen may properly be presented only after either or both parties had formally offered
and closed their evidence, but before judgment is rendered, and even after promulgation but before
finality of judgment and the only controlling guideline covering a motion to reopen is the paramount
interest of justice.

Generally, after the parties have produced their respective direct proofs, they are allowed to
offer rebutting evidence only. However, the court, for good reasons, and in the furtherance of justice,
may allow new evidence upon their original case, and its ruling will not be disturbed in the appellate
court where no abuse of discretion appears. A motion to reopen may thus properly be presented only
after either or both parties had formally offered and closed their evidence, but before judgment is
rendered, and even after promulgation but before finality of judgment and the only controlling
guideline covering a motion to reopen is the paramount interest of justice. This remedy of reopening a
case was meant to prevent a miscarriage of justice.