TRIAL RULE 119

It is the examination before a competent tribunal according to the laws of

the land, of facts put in issue in a case for the purpose of determining such
issue. When trial shall commence

1. The trial shall commence within 30 days from receipt of pre-trial order
(Sec. 1, Rule 119).

2. If the accused is to be tried again pursuant to an order for a new trial, the
trial shall commence within 30 days from notice of the order granting a new
trial(Sec. 5, Rule 119).

NOTE: Period may be extended to one not exceeding 180 days from notice
of order if period becomes impractical due to unavailability of witness and
other factors (Sec. 5, Rule 119).

Summary of Periods Arraignment

a. Within 30 days from the date the court acquires jurisdiction over the
accused.

b. When the accused is under preventive detention, the accused shall be

arraigned within 10 days from date of raffle.

Pre-trial a.

After arraignment and within 30 days from the date the court acquires
jurisdiction over the person of the 1.00 gram and above (metamphetamine
hydrochloride or shabu only)

No plea bargaining allowed

Section 5. Sale, Trading, etc. of Dangerous Drugs (Marijuana only)* Life

Imprisonment to Death and fine ranging from ₱500,000 to ₱10,000,000 .01
gram to 9.99 grams of marijuana only Section 12. Possession of
Equipment, Instrument, Apparatus and Other Paraphernalia for Dangerous
Drugs 6 months and 1 day to 4 years and a fine ranging from ₱10,000 to
₱50,000(N.B.2) 10.00 grams of marijuana only and above No plea
bargaining allowed accused.

b. If the accused is under preventive detention, the pre-trial shall be held

within 10 days after arraignment. Trial The general period applicable is 30
days from receipt of the pre-trial order. Hearing Hearing is not confined to
trial, but embraces several stages of litigation including the pretrial stage. A
hearing does not necessarily imply the presentation of oral or documentary
evidence in open court but that the parties are afforded an opportunity to be
heard (Republic v. Sandiganbayan, G.R. No. 104768, July 21, 2003).

Continuous Trial

The trial once commenced, shall continue from day to day as far as
practicable until terminated. However, it may be postponed for a
reasonable period of time for good cause (Sec. 2, Rule 119).

NOTE: The granting or refusal of an application for continuance or

postponement of the trial lies within the sound discretion of the court and
the discretion will not be interfered with by mandamus or by appeal, unless
there is grave abuse of discretion.

Purpose of the continuous trial system The purpose of the system is to

“expedite the decision or resolution of cases in the trial courts” considering
the mandate of Sec. 12, Art. XVIII of the 1987 Constitution. SC Circular No.
1-89 requires that the “judge shall conduct the trial with utmost dispatch,
with judicious exercise of the court's power to control the trial to avoid
delay” and that “a strict policy on postponements shall be observed.”

NOTE: The SC adopted the continuous trial system as a mode of judicial

fact-finding and adjudication conducted with speed and dispatch so that
trials are held on the scheduled dates without postponement, the factual
issues for a trial well defined at pre-trial and the whole proceedings
terminated and ready for judgment within 90 days from the date of initial
hearing, unless for meritorious reasons an extension is permitted.

Duties of the Presiding Judge under the continuous trial system

1. Adhere faithfully to the session hours prescribed by laws;

2. Maintain full control of the proceedings;

3. Effectively allocate and use time and court resources to avoid court
delays; and 4. Continuous trial on a weekly or other short-term trial
calendar at earliest possible time.

Factors to be considered for granting continuance Whether or not:

1. The failure to grant a continuance would make a continuation of such

proceeding impossible or result in a miscarriage of justice; and

2. The case, as a whole, is so novel, unusual and complex, due to the

number of accused or the nature of the prosecution, or that it is
unreasonable to expect adequate preparation within the periods of time
established therein (Sec. 4, Rule 119).

Prohibited grounds for a continuance

1. Congestion of the court’s calendar;

2. Lack of diligent preparation;

3. Failure to obtain available witnesses on the part of the prosecutor (Sec.

4, Rule 119).

Time limit for the trial of criminal cases

GR: Trial shall not exceed 180 days from the first day of trial. (Sec. 2, Rule
119) XPNs:

1. Those governed by the rules on summary procedure;

2. Those where the penalty prescribed by law does not exceed 6 months
imprisonment or a fine of P1,000 or both; and

3. Those authorized by the Chief Justice of the SC(Sec. 6, RA 8493,

Speedy Trial Act).

Commencement of trial may be extended based on the following

conditions:
1. For the 180 days, for the first 12 calendar month period from the
effectivity of the law

2. 120 days for the second 12-month period CRIMINAL PROCEDURE 465

3. 80 days for the third 12-month period (Sec. 9, RA 8493)

Exclusions in computation of time within which trial must commence

1. Any periods of delay resulting from other proceedings concerning the

accused, including but not limited to the following:

a. Examination of the physical and mental condition of the accused;

b. Proceedings with respect to other criminal charges against the accused;

c. Extraordinary remedies against interlocutory orders;

d. Pre-trial proceedings; provided, that the delay does not exceed 30 days;

e. Orders of inhibition, or proceedings relating to change of venue of cases

or transfer from other courts;

f. A finding of the existence of a prejudicial question; or

g. Those delays reasonably attributable to any period, not to exceed 30

days, during which any proceeding concerning the accused is actually
under advisement.

2. Any period of delay resulting from the absence or unavailability of an

essential witness;

3. Any period of delay resulting from the mental incompetence or physical

inability of the accused to stand trial;

4. If the information is dismissed upon motion of the prosecution and

thereafter a charge is filed against the accused for the same offense, any
period of delay from the date the charge was dismissed to the date the time
limitation would commence to run as to the subsequent charge had there
been no previous charge;
5. A reasonable period of delay when the accused is joined for trial with a
co accused over whom the court has not acquired jurisdiction, or, as to
whom the time for trial has not run and no motion for separate trial has
been granted; and

6. Any period of delay resulting from a continuance granted by any court

motu proprio, or on motion of either the accused or his counsel, or the
prosecution, if the court granted the continuance on the basis of its findings
set forth in the order that the ends of justice served by taking such action
outweigh the best interest of the public and the accused in a speedy
trial(Sec. 3, Rule 119).

Remedies of the accused when a prosecuting officer without just cause

secures postponements of the trial against his protest beyond a reasonable
period of time:

1. Mandamus to compel a dismissal of the information; or

2. If he is restrained of his liberty, by habeas corpus to obtain his freedom.

Acts of the counsel, attorney, or prosecutor which would warrant a sanction

1. Knowingly allowing the case to be set for trial without disclosing that a
necessary witness would be unavailable for trial;

2. Files a motion solely for delay, knowing it to be frivolous and without

merit;

3. Knowingly makes a statement in order to obtain continuance which he

knows to be false and which is material to the granting of a continuance;
and

4. Willfully fails to proceed to trial without justification (Sec. 8, Rule 119).

Order of trial in criminal cases

In criminal cases, the trial shall proceed in the following order:

 1. The prosecution shall present evidence to prove the charge and, in the
proper case, the civil liability.

NOTE: In Dangerous Drugs Cases, it is the duty of the prosecution to

present a complete picture detailing the buy-bust operation – from the initial
contact between the poseur-buyer and the pusher, the offer to purchase,
the promise or payment of the consideration, until the consummation of the
sale by the delivery of the illegal subject of sale (People v. Ong, G.R. No.
175940, February 6, 2008).

2. The accused may present evidence to prove his defense, and damages,
if any, arising from the issuance of a provisional remedy in the case.

3. The prosecution may present rebuttal evidence unless the court permits
them to present additional evidence bearing upon the main issue.

NOTE: Rebuttal evidence is any competent evidence to explain, repel,

counteract or disprove the adversary’s proof. It is receivable only where
new matters have been developed by the evidence of one of the parties
and is generally limited to a reply to new points.

4. The accused may present rebuttal evidence unless the court permits
them to present additional evidence bearing upon the main issue.

5. Upon admission of the evidence of the parties, the case shall be

deemed submitted for decision unless the court directs them to argue orally
or to submit written memoranda (Sec. 11, Rule 119).

NOTE: The order of the trial may be modified when the accused admits the
act or omission charged in the complaint or information but interposes a
lawful defense [Sec. 11 (e), Rule 119

NOTE: Where the order of the trial set forth was not followed by the court
to the extent of denying the prosecution an opportunity to present evidence,
the judgment is a nullity. If there is not enough evidence to prove the
accused’s guilt beyond reasonable doubt, then the defense should file
demurrer to evidence. Case deemed submitted for decision Upon the
admission of the parties’ evidence-inchief, rebuttal and sur-rebuttal proof,
the case is deemed submitted for decision unless the court directs them to
argue their respective memoranda. Mistake in charging the proper offense

GR: When it becomes manifest at any time before judgment that a mistake
has been made in charging the proper offense, the accused cannot be
convicted of the offense charged or any other offense necessarily included
therein.

XPN: The accused shall not be discharged if there appears to be a good

cause to detain him. In such case, the court shall commit the accused to
answer for the proper offense and dismiss the case upon filing of the
proper information (Sec. 19, Rule 119).

NOTE: This rule is predicated on the fact that an accused has the right to
be informed of the nature and cause of the accusation against him.
Reopening of the proceedings At anytime before finality of 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 30 days from the order granting it
(Sec. 24, Rule 119).

The case may be reopened upon the showing of the following

requirements:

1. The reopening must be before 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 the 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 (Cabales v.
Maceda, 516 SCRA 303, February 20, 2007).

INSTANCES WHEN PRESENCE OF ACCUSED IS REQUIRED BY LAW

In the following instances, the presence of the accused is required:
1. At arraignment and plea, whether of innocence or of guilt;(Sec. 1(b),
Rule 116)

2. During trial whenever necessary for identification purposes; and(Sec. 1

(c), Rule 115)

3. At the promulgation of sentence, unless it is for a light offense, in which

case, the accused may appear by counsel or representative. (Sec. 6, Rule
120) Waiver of Right

GR: The accused may waive his presence at the trial pursuant to the
stipulations set forth in his bail. (Sec. 1 (c), Rule 115)

XPN: Unless his presence is specifically ordered by the court for purposes
of identification (Sec. 1 (c), Rule 115) Duty of the public attorney when
accused is imprisoned It shall be his duty to do the following:

1. Promptly undertake to obtain the presence of the prisoner for trial or

cause a notice to be served on the person having custody of the prisoner
requiring such person to so advice the prisoner of his right to demand trial.

2. Upon receipt of that notice, the custodian of that prisoner shall promptly
advice the prisoner of the charge and of his right to demand trial. If at any
time thereafter the prisoner informs his custodian that he demands such
trial, the latter shall cause notice to that effect to be sent promptly to the
public attorney.

3. Upon receipt of such notice, the public attorney shall promptly seek to
obtain the presence of the prisoner for trial.

4. When the custodian of the prisoner receives from the public attorney a
properly supported request for the availability of the prisoner for purposes
of trial, the prisoner shall be made available accordingly (Sec. 7, Rule 119).
Conduct of trial for several accused

GR: When two or more persons are jointly charged with an offense, they
shall be tried jointly. This rule is so designed as to preclude a wasteful
expenditure of judicial resources and to promote an orderly and expeditious
disposition of criminal prosecutions.
XPN: The court, upon motion of the prosecutor or any of the defendants,
may order a separate trial for one or more accused (Sec. 16, Rule 119).

NOTE: In the interest of justice, a separate trial may be granted even after
the prosecution has finished presenting its evidence in chief(Joseph v.
Villaluz, G.R. No. L-45911, April 11, 1979). If a separate trial is granted, the
testimony of one accused imputing the crime to his co-accused is not
admissible against the latter. In joint trial, it would be admissible if the latter
had an opportunity for cross-examination.

REQUISITES BEFORE A TRIAL CAN BE SUSPENDED ON ACCOUNT

OF ABSENCE OF WITNESS

To justify delay or suspension of trial by reason of the absence of a

witness, the following must be present:

1. Witness is essential and appears to the court to be so; NOTE:

“Essential” means indispensable, necessary, or important in the highest
degree. (Riano, 2016)

2. His absence is brought by either of the following: a. His whereabouts

are unknown; or b. His whereabouts cannot be determined by due
diligence.

NOTE: A witness shall be considered unavailable even if his whereabouts

are known but his presence for the trial cannot be obtained by due
diligence. (Sec. 3 (b), Rule 119)

Effect of Absence of Witness

Any period of delay resulting from the absence or unavailability of an

essential witness shall be excluded in computing the time within which trial
must commence. (Sec. 3, Rule 119)

Appearance of material witness

Either party may, upon motion, secure an order from the court for a
material witness to post bail for such sum as maybe deemed proper, if the
court is satisfied upon either proof or oath that a material witness will not
testify when required (Sec. 14, Rule 119). If the witness refuses to post
bail, the court shall commit him to prison until he compiles or is legally
discharged after his testimony has been taken. (Sec. 14, Rule 119)

Some rules on witness’ credibility

1. Affidavits, which are usually taken ex parte, are often incomplete and
inaccurate (Resayo v. People, 522 SCRA 391, April 27, 2007).

2. Truth is established not by the number of witnesses but by the quality of

their testimonies (Ceniza-Manantan v. People, 531 SCRA 364, August 28,
2007).

Examination of defense witness vs. Examination of prosecution witness

BEFORE TRIAL

Examination of Defense Witness Examination of Prosecution Witness

The accused may have his witness examined conditionally in his behalf
before trial upon motion with notice to all other parties.

Conducted in the presence of the accused unless he waived his right after
reasonable notice.

GROUNDS

1.Witness is so sick to afford reasonable ground to believe that he will not

be able to attend the trial.

2.He resides more than 100 kilometers and has

1. The witness is too sick to appear at trial.

2. He has to leave the Philippines with no definite date of return (Sec.

15, Rule 119). no means to attend the same.

3. Other similar circumstances exist that would make him unavailable or

prevent him from attending trial (Sec. 12, Rule 119).

4. May be made if the witness resides more than 100 km from the place of
trial (Secs. 13 and 15, Rule 119).
 Conducted before any judge, member of bar in good standing or before
any inferior court. Conducted only before the judge or the court where the
case is pending.

No right to cross examine

. Right to cross examine. Hence such statements of the prosecution

witnesses may thereafter be admissible in behalf of or against the accused.

TRIAL IN ABSENTIA Sec. 14 (2), Art. III of the Constitution provides that
trial may proceed notwithstanding the absence of the accused provided
that he has been duly notified and his failure to appear is unjustifiable
(Parada v. Veneracion, A.M. No.RTJ-96-1353, March 11, 1997).

Requisites of trial in absentia:

1. The accused has already been arraigned;

2. He has been duly notified of the trial; and

3. His failure to appear is unjustified (Sec. 14(2), Art. III, 1987 Constitution
of the Philippines; Bernardo v. People, G.R. No. 166980, April 4, 2007).

Effects of trial in absentia

The accused waives the right to present evidence and cross-examine the
witnesses against him. The accused’s waiver does not mean, however, that
the prosecution is deprived of the right to require the presence of the
accused for purposes of identification by the witnesses which is vital for
conviction of the accused, except where he unqualifiedly admits in open
court after his arraignment that he is the person named as defendant in the
case on trial.

The failure of the accused to appear before the court in spite of notice has
been considered a waiver of their right to be present at their trial, and the
inability of the court to notify them of the subsequent hearings did not
prevent it from continuing with their trial. They were deemed to have
received notice. Thereafter, the trial court had the duty to rule on the
evidence presented by the prosecution against all the accused and to
render its judgment accordingly (Bernardo vs. People, G.R. No. 166980,
April 4, 2007).

REMEDY WHEN ACCUSED IS NOT BROUGHT TO TRIAL WITHIN THE

PRESCRIBED PERIOD

If the accused is not brought to trial within the time limit required by Sec. 1
(g), Rule 116, the information may be dismissed on motion of the accused
on the ground of denial of his right to speedy trial (Sec. 9, Rule 117).

NOTE: The dismissal shall be subject to the rules on double jeopardy

(Ibid.).

Burden of proving the motion

The accused has the burden of proving the motion but the prosecution
shall have the burden of going forward with the evidence to establish the
exclusion of time under Sec. 3, Rule 117 (Ibid.). Failure of the accused to
move for dismissal prior to trial The failure of the accused shall constitute a
waiver of the right to dismiss under Sec. 9, Rule 117.

REQUISITES FOR DISCHARGE OF ACCUSED TO BECOME A STATE

WITNESS

State witness He is one of two or more persons jointly charged with the
commission of a crime but who is discharged with his consent as such
accused so that he may be a witness for the State (People v. Ferrer, G.R.
No. 102062, March 14, 1996).

Requisites before an accused may become a State witness:

1. Two or more accused are jointly charged with the commission of an

offense;

2. The motion for discharge is filed by the prosecution before it rests its
case;
3. The prosecution is required to present evidence and the sworn
statement of each proposed state witness at a hearing in support of the
discharge;

4. The accused gives his consent to be a state witness; and

5. The trial 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 the 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 (Sec. 17, Rule 119).

. EFFECTS OF DISCHARGE OF ACCUSED AS STATE WITNESS

GR:

1. Discharge of accused operates as an acquittal and bar to further

prosecution for the same offense (Sec. 18, Rule 119);

2. Evidence adduced in support of the discharge shall automatically form

part of the trial (Sec. 17, Rule 119); and

3. If the court denies the motion to discharge the accused as State witness,
his sworn statement shall be inadmissible in evidence (Sec. 17, Rule 119).

XPNs:

1. When the accused fails or refuses to testify against his co-accused in

accordance with his sworn statement constituting the basis of his
discharge(Sec. 18, Rule 119);

2. Failure to testify refers exclusively to defendant’s will or fault; and

 3. Where an accused who turns into a state witness on a promise of
immunity but later retracts and fails to keep his part of the agreement, his
confession made under such a promise may be used against him (People
v. Beberino, G.R. No. L-23092, October 28, 1977).

NOTE: Discharge under this rule is only one of the modes to be a State
witness. Other modes are:

1. The Witness Protection Program of RA 6981;

2. The power of the Ombudsman to grant immunity under Sec. 17, RA

6770;

3. Immunity under PD 749 or granting immunity from prosecution to givers

of bribes and other gifts and to their accomplices in bribery and other graft
cases against public officers;

4. Immunity under EO 14-A or granting immunity from criminal prosecution

to any person who provides information or testifies in any investigation
conducted by Presidential Commission on Good Governance (PCGG);

5. Immunity under the Comprehensive Dangerous Drugs Act of 2002, RA

9165; and

6. Immunity and Protection under the Human Security Act of 2007, RA

9372.

There is a difference between testifying as state witness and testifying as a

co-accused. In the first, the proposed state witness has to qualify as a
witness for the state, after which he is discharged as an accused and
exempted from prosecution. In the second, the witness remains an
accused and can be made liable should he be found guilty of the criminal
offense (People vs. Chaves, G.R. No. 131377, February 11, 2003).

Witness Protection Program vs. Sec. 17, Rule 119 of the Rules of Court

Witness Protection Program

The offense in which the testimony is to be used is limited only to grave
felony under the RPC or its equivalent under

Any member of the family of the person applying for admission within the
second civil degree of consanguinity or affinity is subjected to threat of his
life or bodily injury or there is a likelihood that he will be killed, forced,
intimidated, harassed or corrupted to prevent him from testifying or to
testify falsely or evasively on account of his testimony.

The witness applying is not a law enforcement officer.

The immunity is granted by DOJ.

The witness is automatically entitled to certain rights and benefits.

The witness need not be charged elsewhere.

Rule 119 of the Rules of Court

It has no qualification. It applies to all felonies special law.

This is not required.

There is no such limitation.

One can be discharged as a witness whether he is a law enforcement

officer or not.

The court grants the immunity.

The witness so discharged must still apply for the enjoyment of said rights
and benefits in the DOJ.

He is charged in court as one of the accused as stated in the information.

No information may thus be filed against the witness.

The charges against him shall be dropped and the same operates as an
acquittal.
 NOTE: Both require that there is absolute necessity for the testimony and
that there is no other direct evidence available for the prosecution of the
offense committed.

DEMURRER TO EVIDENCE

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 to
make out a case or sustain the issue (Nicolas v. Sandiganbayan, G.R. Nos.
175930-31, February 11, 2008).

NOTE: A demurrer to evidence is actually a motion to dismiss that is filed

by the accused after the prosecution has rested its case. To be considered
sufficient, the evidence must prove:

1. The commission of the crime; and

2. The precise degree of participation therein by the accused (Singian, Jr.

v. Sandiganbayan, G.R. No. 195011-19, September 30, 2013).

Rule on demurrer to evidence How made

1. Court on its own initiative; or

2. Upon filing of the accused for demurrer of evidence:

a. With leave of court; or

b. Without leave of court.

When made

After the prosecution rests its case.

Ground Insufficiency of evidence

Effect The court may dismiss the case (Sec. 23, Rule 119).

NOTE: Generally, in criminal cases, 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. Although the dismissal order
is not subject to appeal, it is still reviewable but only through certiorari
under Rule 65 of the Rules of Court. For the writ to issue, the trial court
must be shown to have acted with grave abuse of discretion amounting to
lack or excess of jurisdiction such as where the prosecution was denied the
opportunity to present its case or where the trial was a sham thus rendering
the assailed judgment void. The burden is on the petitioner to clearly
demonstrate that the trial court blatantly abused its authority to a point so
grave as to deprive it of its very power to dispense justice (People v.
Sandiganbayan, G.R. No. 1754504, March 21, 2011).

Effect of filing a demurrer with leave of court vs.

Filing a demurrer without leave Demurrer With Leave of Court

Demurrer Without Leave of Court

is If demurrer to evidence is denied, it is tantamount to a waiver of the

accused’s right to present evidence and as a consequence the case will be
submitted for judgment on the basis of the evidence for the prosecution.

If demurer is granted, the case is dismissed and the effect is an acquittal.

Demurrer to Evidence With Leave of Court

If leave of court is If demurrer to evidence is denied, the accused may

proceed with the presentation of his evidence.

If demurer is granted, the case is dismissed and the effect is an acquittal.

The motion for leave of court to file a demurrer to evidence shall specifically
state its grounds and shall be filed within a non-extendible period of 5 days
after the prosecution rests its case. The prosecution may oppose the
motion within a non-extendible period of 5 days from its receipt. If leave of
court is granted, the accused may file the demurrer to evidence within 10
days. The prosecution may however, oppose the demurrer to evidence
within a non-extendible period of 10 days from the receipt of the demurrer
(Sec. 23, Rule 119).

Purpose of leave of court The purpose of leave of court is to determine

whether or not the defendant in a criminal case has filed the demurrer
merely to stall the proceedings(People v. Mahinay, G.R. No. 109613, July
17, 1995).

Demurrer to evidence vs. Motion to dismiss Demurrer to Evidence Motion

to Dismiss Assumes that the prosecution has It is based on the denial of
the already rested its case filed by the accused with or without leave of
court and submits the case for judgment on the evidence of the
prosecution. accused’s right to speedy trial characterized by unreasonable,
vexatious and oppressive delay without fault of the accused, or by
unjustified statements that unreasonably prolonged the trial. It may be filed
in good faith with or without leave of court. It is filed without leave of court
and before the prosecution has rested its case.

NOTE: In order to determine whether the pleading filed is demurrer to

evidence or a motion to dismiss, the Court must consider:

(1) the allegations in it made in good faith;

(2) the stage of proceeding at which it is filed; and

(3) the primary objective of the party filing it (Cabador v People, GR No.
186001, October 2, 2009).

Demurrer to Evidence in a Civil Case

Leave of Court is not required before the filing of a demurrer

Order of dismissal is appealable, if the dismissal is reversed, the defendant

is deemed to have waived his right to present his evidence

If the demurrer is denied, the defendant may proceed to present his

evidence.(Sec. 1, Rule 33) He does not lose his right to present evidence.

A demurrer to evidence in a civil a case is anchored upon the failure of the

plaintiff to show that upon the facts and the law, he is entitled to relief.

The court cannot move at its own instance.

Demurrer to Evidence in a Criminal Case

 A demurrer is filed with or without a leave of court.. (Sec. 1, Rule 33) Order
of dismissal is not appealable because of the Constitutional policy against
double jeopardy. (People v. Tan, G.R. No. 167526, January 26, 2010)

The accused may adduce his evidence in his evidence only when the
demurrer that was denied was filed with leave of court.

When filed without leave of court and the demurrer is denied, the accused
waives his right to present evidence and submits the case for judgment on
the basis of the evidence for the prosecution. (Sec. 23, Rule 119)

A demurrer in a criminal case is predicated upon insufficiency of evidence.

Motion from the defendant is required. The court may move at its own
instance.