Bernardo vs. CA, 278 SCRA 782

10/23/2019 SUPREME COURT REPORTS ANNOTATED VOLUME 278
782 SUPREME COURT REPORTS ANNOTATED

Bernardo vs. Court of Appeals
*
G.R. No. 119010. September 5, 1997.
PAZ T. BERNARDO, petitioner, vs. COURT OF

APPEALS, HON. OSCAR L. LEVISTE and
FLORLITA RONQUILLO-CONCEPCION,
respondents.
Criminal Procedure; Pleadings and Practice; Demurrer

to Evidence; The court on its initiative can dismiss the case
after giving prior notice to the prosecution. The accused can
file a demurrer only if he is granted prior leave of court. If
the motion for leave or demurrer is denied, the accused can
present his evidence, and there is no waiver; If the accused
files a demurrer without leave, his right to present evidence
is waived.—Chief Justice Andres R. Narvasa, Chairman of
the Committee, suggested that—x x x there may be
instances where it is very plain that the evidence is
insufficient, but there are also instances where the court is
in doubt x x x x it is the court that will now determine
whether a demurrer should be filed or not after getting the
opinion of both sides x x x x If the accused asks for leave of
court and the court supports it, it is good; but x x x if it
finds the motion dilatory, then it denies it. But x x x there
should be no waiver if the demurrer is with leave of court,
because there may be a situation where the court itself may
want to dismiss the case x x x x If leave is denied, and the
accused still files the demurrer, then there is waiver (italics
supplied). The Committee finally approved the following
propositions of the Chief Justice: (a) The court on its
www.central.com.ph/sfsreader/session/0000016df66b93b10f909111003600fb002c009e/t/?o=False 1/17
initiative can dismiss the case after giving prior notice to

the prosecution; (b) The accused can file a demurrer only if
he is granted prior leave of court; (c) If the motion for leave
or the demurrer is denied, the accused can present his
evidence, and there is no waiver; and, (d) If the accused
files a demurrer without leave, his right to present
evidence is waived.
____________________
* FIRST DIVISION.
783
VOL. 278, SEPTEMBER 5, 1997 783
Same; Same; Same; The power to grant leave to the

accused to file a demurrer is addressed to the sound
discretion of the trial court. The purpose is to determine
whether the accused in filing his demurrer is merely
stalling the proceedings.—In fine, under the new rule on
demurrer to evidence the accused has the right to file a
demurrer to evidence after the prosecution has rested its
case. If the accused obtained prior leave of court before
filing his demurrer, he can still present evidence if his
demurrer is denied. However, if he demurs without prior
leave of court, or after his motion for leave is denied, he
waives his right to present evidence and submits the case
for decision on the basis of the evidence for the
prosecution. This power to grant leave to the accused to file
a demurrer is addressed to the sound discretion of the trial
court. The purpose is to determine whether the accused in
filing his demurrer is merely stalling the proceedings.
Same; Same; Same; Where the court has denied her

motion for leave to file a demurrer to evidence, her only
right under Section 15, Rule 119 of the Rules of Court is to

adduce evidence in her defense.—In the case at bar,
petitioner admits that in the hearing of 20 May 1994 the
trial court denied her motion for leave to file a demurrer to
evidence. In such case, the only right petitioner has under
Sec. 15, Rule 119, of the Rules of Court after having been
denied leave to submit a demurrer is to adduce evidence in
her defense. However, even without express leave of the
trial court, nay, after her motion for leave was denied,
petitioner insisted on filing a demurrer instead of
presenting evidence in her defense.
Same; Same; Same; Once prior leave is denied and the

accused still files his demurrer to evidence or motion to
dismiss, the court no longer has discretion to allow the
accused to present evidence.—Judicial action to grant prior
leave to file demurrer to evidence is discretionary upon the
trial court. But to allow the accused to present evidence
after he was denied prior leave to file demurrer is not
discretionary. Once prior leave is denied and the accused
still files his demurrer to evidence or motion to dismiss,
the court no longer has discretion to allow the accused to
present evidence. The only recourse left for the court is to
decide the case on the basis of the evidence presented by
the prosecution. And, unless there is grave abuse thereof
amounting to lack or excess of jurisdiction, which is not
present in the instant case, the trial court’s denial of prior
leave to file demurrer to evidence or motion to dismiss may
not be dis-
784
turbed. However, any judgment of conviction by a trial

court may still be elevated by the accused to the appellate
court.
PETITION for review on certiorari of a decision of

the Court of Appeals.
The facts are stated in the opinion of the Court.

Jorge V. Miravite for petitioner.
Trinidad, Reverente, Makalintal and Cabrera
Law Office for private respondents.
BELLOSILLO, J.:
For an orderly procedure in the disposition of

criminal cases the Rules of Court provides that the
prosecution and the defense present their evidence in
the order prescribed in Sec. 3, Rule 119, after which,
evaluating the evidence presented, the trial court
renders judgment either of acquittal or conviction.
Under Sec. 15 of the same Rule, after the prosecution
has rested its case, the court may dismiss the case on
the ground of insufficiency of evidence either on its
own initiative after giving the prosecution an
opportunity to be heard, or on motion of the accused
filed with prior leave of court. If the court denies the
demurrer or motion to dismiss, the accused may
adduce evidence in his defense. When the accused
files such motion to dismiss without express leave of
court, he waives the right to present evidence and
submits the case for judgment on the basis of the
evidence for the prosecution.
The new rule on demurrer to evidence was first
incorporated in the 1985 Rules on Criminal
Procedure which significantly
1
changed the2
ruling in
People v. Mamacol and Abriol v. Homeres that when
a motion to dismiss on insufficiency of evidence is
denied the accused has a right to present evidence in
his behalf. Earlier the rule was, when after the
prosecution has rested its case, and the accused files
a motion to dismiss on insufficiency of evidence, he
waives the right to present
__________________
1 81 Phil. 543 (1948).

2 84 Phil. 525 (1949).
785
VOL. 278, SEPTEMBER 5, 1997 785

evidence and submits the case for judgment 3

on the
basis of the evidence of the prosecution. The rule
was further modified in 1988 to the effect that only
when the accused files a demurrer or motion to
dismiss on insufficiency of evidence without express
leave of court that the accused may be deemed to
have waived his right to present evidence and the
case considered submitted for decision on the basis of
the evidence for the prosecution. If the accused has
obtained prior leave of court, in case of denial of his
motion to dismiss, he retains his right to present
evidence in his behalf. The court may also motu
proprio dismiss the case on insufficiency of evidence,
but before doing so, it should give the prosecution4 an
opportunity to be heard and to oppose the motion.
We are now called upon to apply the new rule on
demurrer to evidence.
Paz T. Bernardo was originally charged with four
(4) counts of violation of B.P. Blg. 22 before the
Regional Trial Court of Quezon City, docketed as
Crim. Cases Nos. Q-93-46792-95. Subsequently,
private complainant, respondent Florlita Ronquillo-
Concepcion, executed an Affidavit of Desistance
which led to the dismissal of Crim. Cases Nos. Q-93-
46794 and Q-93-46795, thus leaving Crim. Cases
Nos. Q-93-46792 and Q-93-46793 to be disposed of by
the trial court.
On 20 May 1994, after presenting its last witness,
the prosecution rested its case and formally offered
its exhibits. That hearing was set at 8:30 a.m. on

that date for continuation of the reception of the
evidence for the prosecution
5
as reflected in the
calendar of the court. After the prosecution had
formally offered its evidence, the following
transpired in open court—
___________________
3 Ocampo v. Court of Appeals, G.R. No. 79060, 8 December

1989, 180 SCRA 27.
4 Herrera, Oscar M., Remedial Law, Vol. IV, Rules 110-127,
1995 Ed., pp. 510-511.
5 Rollo, p. 36.
786

COURT:
Alright, prosecution having rested, defense will
now present its evidence. Proceed.
ATTY. MIRAVITE:
Your honor, we respectfully ask for a resetting,
for leave of court to file demurrer to evidence
(italics supplied).
COURT:
On what ground?
ATTY. MIRAVITE:
On the ground that the prosecution failed to
elicit the fact where the checks were issued and
where they were actually dishonored. This is
material, your honor, for purposes of
determining jurisdiction. Also, your honor, as
we mentioned in our comments to the evidence
presented by the prosecution, there has been no
valid notice of dishonor of the subject checks

upon the accused. So, upon those grounds, we
believe that the prosecution has not duly made
out a case against the accused, and we feel those
are sufficient for the dismissal of the case as
against the accused.
COURT:
So as to avoid reviewing the records, would you
admit that there is no proof where the checks
were issued and where they were dishonored?
PRIVATE PROSECUTOR:
No, we would not admit that, your honor. They
were dishonored actually in Manila, but the
check was deposited in the bank of PAR
CREDIT ENTERPRISES in Quezon City, and it
was naturally forwarded to the Philippine
National Bank where the same was returned to
the bank of PAR CREDIT ENTERPRISES here
in Quezon City.
COURT:
Where does it appear?
PRIVATE PROSECUTOR:
It is at the back of Exhibit A, your honor.
COURT:
Is It mark(ed)?
PRIVATE PROSECUTOR:
Your honor, it states here, deposited to
Philippine National Bank, West Avenue,
Quezon City which is at the check marked as
exhibit A-4.
787
VOL. 278, SEPTEMBER 5, 1997 787

COURT:
So, that takes jurisprudence. The elements
happened in Quezon City.
PRIVATE PROSECUTOR:
Yes, your honor.
ATTY. MIRAVITE:
The notation read by counsel, your honor, was
not marked in evidence, what was marked is B-
4 appearing at the dorsal portion of the check
which pertains only for (sic) the dishonor, the
initial and the date. Nothing was presented as
to the fact. If that is so, that was indeed
deposited at West Avenue, Quezon City.
PRIVATE PROSECUTOR:
There is, your honor. The stamp received by the
Cashier Division, PNB, Quezon City, West
Avenue.
COURT:
Anyway, was there an offer of that document?
PRIVATE PROSECUTOR:
Yes, there was an offer of exhibit A-4, your
honor. The record would show that we
manifested that exhibit B-4 are stamps of the
bank reading DAIF over which there are other
stamps.
COURT:
You are saying that the word DAIF was marked
at the back and offered as proof of the dishonor
and the place was evidence?
PRIVATE PROSECUTOR:
Yes, your honor, immediately on top of the word,
DAIF.
COURT:
Is there any evidence testimonial that these
were encashed and dishonored?

PRIVATE PROSECUTOR:
Yes, your honor, the testimony of this witness is
very clear that the checks were deposited and
the same was (sic) dishonored by the bank.
COURT:
Do you admit that there was no notice of
dishonor?
PRIVATE PROSECUTOR:
We don’t admit that, your honor. In fact, there
are admissions in handwriting regarding the
claim.
788

COURT:
Is there any evidence presented that these
checks were not paid up to now?
PRIVATE PROSECUTOR:
Yes, your honor. First, is the oral testimony of
the witness, that it has not been paid; second,
exhibits 1 and 1-1, which is the Complaint
Affidavit of the witness.
COURT:
Alright, in view of the objections, and in view of
the manifestations of the private prosecutor, the
defense grounds for demurrer, the same not
being well taken is hereby DENIED (italics
supplied). You will now present your evidence.
ATTY. MIRAVITE:
If your honor please, may we just ask for a
reconsideration (italics supplied)?

COURT:
If you will waive your right to present your
evidence, the Court will give you a period to file
a demurrer to evidence. And, if you don’t present
your evidence now, you will be considered to
have waived your right to present evidence
(italics supplied).
xxxx
ATTY. MIRAVITE:
If your honor please, we would like to reiterate
our motion to file a demurrer to evidence (italics
supplied)?
COURT:
But you have already orally made that demurrer
which has been denied (italics supplied).
ATTY. MIRAVITE:
In which case your honor, if there is no leave of
court, we will be filing our demurrer to evidence,
your honor (italics supplied).
COURT:
That is tantamount to postpone (sic) this case.
The Court considers that motion dilatory (italics
supplied).
ATTY. MIRAVITE:
Your honor, I think within the option of the
parties to take remedies and at this point, we did
prepare for our purposes, that instead of
presenting the accused or presenting our
witnesses, we would just prefer to move for a
demurrer to evidence (italics supplied).
789
VOL. 278, SEPTEMBER 5, 1997 789

COURT:
You may include that in your motion for
reconsideration. Alright, the prosecution having
rested, and the defense having been considered to
have waived his right to present his evidence,
this case is deemed submitted for decision. Set
the promulgation of this case to June 6, 19946at
8:30 o’clock in the morning (italics supplied).
Petitioner assailed the Order of respondent judge

hereinbefore immediately quoted before the Court of
Appeals by way of certiorari, prohibition and
mandamus. Petitioner argued that the trial court
committed grave abuse of discretion in considering
her to have waived her right to present evidence
after the denial of her motion for leave to file
demurrer to evidence.
On 30 September 1994 the Court of Appeals
rendered a decision modifying in effect that portion
of the questioned Order of the RTC-Br. 97, Quezon
City, of 20 May 1994 which states that “the defense
having been considered to have waived her right to
present her 7evidence, this case is deemed submitted
for decision” by directing the trial court8 to set Crim.
Cases Nos. Q-93-46792 and Q-93-46793 “for 9
trial for
reception of evidence for the petitioner.” Petitioner
moved for partial reconsideration of the decision of
the Court of Appeals but her motion was denied on 7
February 1995.
Petitioner Bernardo filed the instant petition for
review on certiorari of the decision of the Court of
Appeals on the ground that when it refused to allow
petitioner to demur to the evidence the appellate
court decided the matter not in accordance 10
with law
and applicable decisions of this Court. Petitioner
submits that when her counsel moved for leave to file
a demurrer to evidence on 20 May 1994 this meant

that
___________________
6 TSN, 20 May 1994, pp. 16-21.

7 Rollo, pp. 29-40.
8 Not Crim. Cases Nos. Q-93-47465-67; see Records of the RTC-
Br. 97, Quezon City, p. 60.
9 Decision of respondent Court of Appeals in CA-G.R. SP No.
34219, 30 September 1994, p. 12; Rollo, p. 40.
10 Rollo, p. 20.
790

she intended to make a written demurrer after

extensive research and with proper authorities to
support the same; that when the trial court denied
her motion, it was in effect a denial only of the
motion for leave to file demurrer to evidence and not
the demurrer to evidence itself and, therefore, the
order of respondent appellate court allowing
petitioner to present her evidence was premature.
Petitioner further contends that she should first be
given the opportunity to file her demurrer to
evidence and wait for its denial with finality before
she could be directed
11
to present her evidence before
the trial court.
We cannot sustain petitioner. As the trial court
observed, her move, 12
expressed through counsel, was
merely “dilatory.” But neither can we affirm the
ruling of respondent Court of Appeals directing the
trial court to receive the evidence of the defense after
its motion for leave to file a demurrer to evidence
was denied. It is contrary to the letter and spirit of
Sec. 15, Rule 119, of the Rules of Court.
The implications and consequences of obtaining

prior leave before the accused files a demurrer to
evidence were discussed by the Committee on the
Revision of the Rules as reflected in its Minutes of 18
February 1997. Mr. Justice Jose Y. Feria, Co-
Chairman of the Committee, explained—
Objections were raised against the new Rule on the ground

that it was prejudicial to the accused. Hence, the present
amended provision was adopted. It is only when the
accused files such a motion to dismiss without express leave
of court that he waives the right to present evidence and
submits the case for judgment
13
on the basis of the evidence
for the prosecution x x x x
Chief Justice Andres R. Narvasa, Chairman of the

Committee, suggested that—
_____________________
11 Id., pp. 20-26.

12 See Note 6.
13 Gupit, Fortunato, Jr., The 1988 Amendments to the Rules on
Criminal Procedure, 1989 Ed., p. 87, citing Feria, 1988
Amendments to the 1985 Rules on Criminal Procedure, Philippine
Legal Studies, Series No. 3, p. 28.
791
VOL. 278, SEPTEMBER 5, 1997 791

x x x there may be instances where it is very plain that the

evidence is insufficient, but there are also instances where
the court is in doubt x x x x it is the court that will now
determine whether a demurrer should be filed or not after
getting the opinion of both sides x x x x If the accused asks
for leave of court and the court supports it, it is good; but x
x x if it finds the motion dilatory, then it denies it. But x x
x there should be no waiver if the demurrer is with leave of

court, because there may be a situation where the court
itself may want to dismiss the case x x x x If leave is
denied, and the accused still14
files the demurrer, then there
is waiver (italics supplied).
The Committee finally approved the following

propositions of the Chief Justice: (a) The court on its
initiative can dismiss the case after giving prior
notice to the prosecution; (b) The accused can file a
demurrer only if he is granted prior leave of court; (c)
If the motion for leave or the demurrer is denied, the
accused can present his evidence, and there is no
waiver; and, (d) If the accused files a demurrer
without15 leave, his right to present evidence is
waived.
In fine, under the new rule on demurrer to
evidence the accused has the right to file a demurrer
to evidence after the prosecution has rested its case.
If the accused obtained prior leave of court before
filing his demurrer, he can still present evidence if
his demurrer is denied. However, if he demurs
without prior leave of court, or after his motion for
leave is denied, he waives his right to present
evidence and submits the case for decision on the
basis of the evidence for the prosecution. This power
to grant leave to the accused to file a demurrer is
addressed to the sound discretion of the trial court.
The purpose is to determine whether the accused in
filing his 16demurrer is merely stalling the
proceedings.
In the case at bar, petitioner admits that in the
hearing of 20 May 1994 the trial court denied her
motion for leave to file a demurrer to evidence. In
such case, the only right petitioner
____________________
14 Gupit, op. cit., pp. 88-89.

15 Gupit, op. cit., pp. 2-3.
16 People v. Mahinay, G.R. No. 109613, 17 July 1995, 246 SCRA

451, 457.
792

has under Sec. 15, Rule 119, of the Rules of Court

after having been denied leave to submit a demurrer
is to adduce evidence in her defense. However, even
without express leave of the trial court, nay, after
her motion for leave was denied, petitioner insisted
on filing a demurrer instead of presenting evidence
in her defense.
Judicial action to grant prior leave to file
demurrer to evidence is discretionary upon the trial
court. But to allow the accused to present evidence
after he was denied prior leave to file demurrer is
not discretionary. Once prior leave is denied and the
accused still files his demurrer to evidence or motion
to dismiss, the court no longer has discretion to allow
the accused to present evidence. The only recourse
left for the court is to decide the case on the basis of
the evidence presented by the prosecution. And,
unless there is grave abuse thereof amounting to
lack or excess of jurisdiction, which is not present in
the instant case, the trial court’s denial of prior leave
to file demurrer to evidence
17
or motion to dismiss may
not be disturbed. However, any judgment of
conviction by a trial court may still18
be elevated by
the accused to the appellate court.
WHEREFORE, the Petition to allow petitioner to
file a demurrer to evidence is DENIED. The ruling of
respondent Court of Appeals directing the trial court
to hear the evidence of the accused is SET ASIDE.
The Regional Trial Court of Quezon City is directed
to decide the remaining Crim. Cases Nos. Q-93-
46792 and Q-93-46793 on the basis of the evidence

already presented by the prosecution.
SO ORDERED.
Vitug, Kapunan and Hermosisima, Jr., JJ.,
concur.
Petition denied, CA ruling set aside.
____________________________
17 People v. Mercado, No. L-33492, 30 March 1988, 159 SCRA

453.
18 Cruz v. People, G.R. No. 67228, 9 October 1986, 144 SCRA
677.
793
VOL. 278, SEPTEMBER 5, 1997 793

Torres, Jr. vs. Court of Appeals
Notes.—The accused is allowed to present

evidence even after a motion to dismiss is denied
provided the demurrer was made with the express
consent of the court. (People vs. Mahinay, 246 SCRA
451 [1995])
The purpose for obtaining leave of court is to
determine whether or not the defendant in a
criminal case has filed the demurrer merely to stall
the proceedings. (Ibid.)
——o0o——
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10/23/2019 SUPREME COURT REPORTS ANNOTATED VOLUME 278

782 SUPREME COURT REPORTS ANNOTATED

PAZ T. BERNARDO, petitioner, vs. COURT OF

Criminal Procedure; Pleadings and Practice; Demurrer

initiative can dismiss the case after giving prior notice to

VOL. 278, SEPTEMBER 5, 1997 783

Bernardo vs. Court of Appeals

Same; Same; Same; The power to grant leave to the

Same; Same; Same; Where the court has denied her

right under Section 15, Rule 119 of the Rules of Court is to

Same; Same; Same; Once prior leave is denied and the

784 SUPREME COURT REPORTS ANNOTATED

Bernardo vs. Court of Appeals

turbed. However, any judgment of conviction by a trial

PETITION for review on certiorari of a decision of

The facts are stated in the opinion of the Court.

For an orderly procedure in the disposition of

1 81 Phil. 543 (1948).

VOL. 278, SEPTEMBER 5, 1997 785

evidence and submits the case for judgment 3

its exhibits. That hearing was set at 8:30 a.m. on

3 Ocampo v. Court of Appeals, G.R. No. 79060, 8 December

786 SUPREME COURT REPORTS ANNOTATED

valid notice of dis- honor of the subject checks

VOL. 278, SEPTEMBER 5, 1997 787

were encashed and dishonored?

788 SUPREME COURT REPORTS ANNOTATED

reconsideration (italics supplied)?

VOL. 278, SEPTEMBER 5, 1997 789

Bernardo vs. Court of Appeals

Petitioner assailed the Order of respondent judge

a demurrer to evidence on 20 May 1994 this meant

6 TSN, 20 May 1994, pp. 16-21.

790 SUPREME COURT REPORTS ANNOTATED

she intended to make a written demurrer after

The implications and consequences of obtaining

Objections were raised against the new Rule on the ground

Chief Justice Andres R. Narvasa, Chairman of the

11 Id., pp. 20-26.

VOL. 278, SEPTEMBER 5, 1997 791

x x x there may be instances where it is very plain that the

x there should be no waiver if the demurrer is with leave of

The Committee finally approved the following

14 Gupit, op. cit., pp. 88-89.

16 People v. Mahinay, G.R. No. 109613, 17 July 1995, 246 SCRA

792 SUPREME COURT REPORTS ANNOTATED

has under Sec. 15, Rule 119, of the Rules of Court

46792 and Q-93-46793 on the basis of the evidence

17 People v. Mercado, No. L-33492, 30 March 1988, 159 SCRA

VOL. 278, SEPTEMBER 5, 1997 793

Notes.—The accused is allowed to present

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