G.R. No. 98376 ; August 16, 1991
PEOPLE OF THE PHILIPPINES, petitioner, vs. HON. BAYANI S. RIVERA, Judge, Regional Trial Court of Kalookan City, Branch 129, and WILFREDO L. SEMBRANO, respondents.

FACTS

Private respondent Wilfredo L. Sembrano was charged with arson for allegedly causing a fire that destroyed a restaurant. Among the prosecution witnesses was Benjamin Lee, a room boy, who testified on direct and cross-examination by the original defense counsel in 1987. After the prosecution rested its case, the original defense counsel withdrew and was substituted by Atty. Eduardo Rodriguez. The new counsel filed a motion to recall Lee for further cross-examination, alleging generally that there were many points and questions the former counsel failed to ask, without specifying what these were. Over prosecution objection, the trial court granted the motion.
Subsequent efforts to locate and produce Lee for further cross-examination failed, as he had terminated his employment and moved without leaving a new address. The prosecution thus moved to dispense with his recall. The trial court, however, denied the motion and, in its challenged order, struck out Lee’s entire testimony from the record. It reasoned that the failure to conduct further cross-examination was not the fault of the defense, thereby rendering the testimony incomplete. The prosecution, through the Solicitor General, filed this certiorari petition.

ISSUE

Did the respondent trial court commit grave abuse of discretion in granting the motion to recall witness Benjamin Lee and subsequently in striking out his entire testimony?

RULING

Yes. The Supreme Court granted the petition, nullifying the trial court’s order. The Court ruled that while a trial court has discretion under Section 9, Rule 132 of the Rules of Court to grant leave to recall a witness, this discretion must be based on a concrete and substantial ground, not on mere generalities. The defense motion provided only a bare assertion that unspecified questions were left unasked, which is insufficient to justify recall. Granting the motion on such a vague premise constituted a whimsical and capricious exercise of discretion, amounting to grave abuse.
Furthermore, the subsequent order striking out Lee’s entire testimony was likewise a grave abuse of discretion. The witness had already been thoroughly cross-examined and recross-examined by the original defense counsel. The absence of further cross-examination by substitute counsel did not automatically render the prior testimony hearsay or incomplete, especially absent any showing by the defense of what specific and indispensable matters the further examination would have revealed. The prosecution was not responsible for the witness’s unavailability. Thus, striking the testimony was oppressive and without legal basis.