G.R. No. 98376 - People v. Rivera

FIRST DIVISION
[G.R. No. 98376. August 16, 1991.]
PEOPLE OF THE PHILIPPINES, petitioners, vs. HON. BAYANI S.

RIVERA, Judge, Branch 129, Regional Trial Court of
Kalookan City, and WILFREDO L. SEMBRANO, respondent.
The Solicitor General for petitioner.

Eduardo S. Rodriguez for private respondent.
DECISION
NARVASA, J : p
The special civil action of certiorari at bar instituted in this Court to annul an
order rendered by the Regional Trial Court at Kalookan City, Branch 129, in a
prosecution for arson docketed in that Court as Criminal Case No. 28820 (87).
Accused in that case of arson is Wilfredo L. Sembrano. It is the prosecution's

theory that he wilfully caused the fire in the early morning of May 21, 1987
which totally burned and destroyed the second and third floors of the "I Love
You Restaurant and Sauna Bath" owned by Juanito L. Tan, located at No. 2 L.
Bustamante St. Kalookan City. 1
Among the witnesses presented by the Government to demonstrate

Sembrano's culpability was Benjamin Lee, a room boy of the restaurant and
bath. Lee testified on direct examination at the hearing of December 8, 1987.
His testimony was essentially that Sembrano had run out of the VIP room where
the fire had started and refused to heed his (Lee's) call to stop. Lee took the
witness stand again on April 26, 1987 during which he was cross-examined by
defense counsel, gave additional evidence on redirect examination, was again
questioned on recross-examination by the same defense counsel, and
thereafter allowed to step down. 2
The prosecution completed presentation of its evidence-in-chief in due course.
But before it could rest its case, and two (2) months or so after Benjamin Lee
had completed his testimony, the defendant's original counsel, Benjamin
Formoso, withdrew his appearance and was substituted by another attorney,
Eduardo S. Rodriguez. 3 The latter then filed a motion on June 8, 1988 to recall
Benjamin Lee for further examination. 4 The ground relied upon by Atty.
Rodriguez was simply that after he had reviewed the record of Benjamin Lee's
testimony, he came to the conclusion that "there seems to be many points and
questions that should have been asked but were not profounded (sic) by the
other defense counsel who conducted . . . (the cross examination)." It was on
this averment, and counsel's reference to "the gravity of the offense charge
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(sic)" and the need "to afford the accused full opportunity to defend himself,"
that Lee's recall for further cross examination was sought to be justified. Over
objections of the prosecution, the Court 5 granted the motion. llcd
Efforts were thereafter exerted to cause witness Benjamin Lee to again appear
before the Court for further cross-examination. These efforts met with no
success; and the trial had to be postponed several times. It appears that Lee
had terminated his employment and moved elsewhere without indicating his
new address.
So, on October 1, 1990 the private prosecutor filed a "Manifestation and
Motion" drawing attention to the inability to procure the re-appearance of
witness Lee for which "the prosecution could not be held liable," and to the fact
that "Lee has already been thoroughly examined by the former defense
counsel," and praying upon these premises "that the further examination of
Benjamin Lee be dispensed with and . . . the prosecution . . . allowed to
terminate the presentation of its evidence."
By Order dated October 2, 1990, 6 the Trial Court denied the motion to dispense
with the recall of Benjamin Lee. In fact, it ordered "the testimony of Benjamin
Lee for the prosecution . . . stricken off the record for lack of complete cross-
examination" because the witness could no longer be found, and "the failure of
counsel for the accused to further cross-examine the witness is not the fault of
the defense." 7
In the same order, the Court also set the "reception of further evidence for the
prosecution, if any, . . . on October 23, 1990 . . . as earlier scheduled."
Subsequently it denied the private prosecutor's motion for reconsideration of
the order. 8 Hence, the action at bar, instituted by the Office of the Solicitor
General.
The writ of certiorari prayed for will issue. The Trial Court acted with grave
abuse of discretion in authorizing the recall of witness Benjamin Lee over the
objections of the prosecution, and in later striking out said witness' testimony
for want of further cross-examination.
There is no doubt that a Trial Court has discretion to grant leave for the recall
of a witness. This is clear from a reading of Section 9, Rule 132 of the Rules of
Court, as amended, 9 viz.:
"SECTION 9. Recalling witness. — After the examination of a
witness by both sides has been concluded, the witness cannot be
recalled without leave of the court. The court will grant or withhold
leave in its discretion, as the interests of justice may require."
But obviously that discretion may not be exercised in a vacuum, as it were,

entirely, isolated from a particular set of attendant circumstances. The
discretion to recall a witness is not properly invoked or exercisable by an
applicant's mere general statement that there is a need to recall a witness
"in the interest of justice," or "in order to afford a party full opportunity to
present his case," or that, as here, "there seems to be many points and
questions that should have been asked " in the earlier interrogation. To
regard expressed generalities such as these as sufficient ground for recall of
witnesses would make the recall of witness no longer discretionary but
ministerial. Something more than the bare assertion of the need to propound
additional questions is essential before the Court's discretion may rightfully
be exercised to grant or deny recall. There must be a satisfactory showing of
some concrete, substantial ground for the recall. There must be a
satisfactory showing on the movant's part, for instance, that particularly
identified material points were not covered in the cross-examination, or that
particularly described vital documents were not presented to the witness
whose recall is prayed for, or that the cross-examination was conducted in
so inept a manner as to result in a virtual absence thereof. Absent such
particulars, to repeat, there would be no foundation for a trial court to
authorize the recall of any witness.
In the case at bar, the respondent Trial Court granted the defendant's motion
for recall on nothing more than said movant's general claim that certain
questions — unspecified, it must be stressed — had to be asked. In doing so it
acted without basis, exercised power whimsically or capriciously, and gravely
abused its discretion. cdll
So, too, the respondent Court acted whimsically, capriciously, and oppressively,
in other words, gravely abused its discretion, in ordering the striking out of the
entire testimony of Benjamin Lee after it appeared that he could no longer be
found and produced for further examination. In the first place, the Court acted
unilaterally, without any motion to this effect by the defense and thus without
according the prosecution a prior opportunity to show why the striking out
should not be decreed. More importantly, the striking out was directed without
any showing whatever by the defense of the indispensability of further cross-
examination, what it was that would have been elicited by further cross-
examination rendering valueless all that the witness had previously stated. It
should be stressed that Lee was subjected both to cross-examination and
recross-examination by former counsel of the accused Sembrano. Obviously the
latter was satisfied that there had been sufficient cross-examination of the
witness. Absence of cross-examination may not therefore be invoked as ground
to strike out Lee's testimony (as being hearsay). And there is no showing
whatever in this case that it was the prosecution that placed the witness
beyond the reach of the Court, much less of the expected nature or tenor of his
additional testimony which, because not presented, would necessarily cause
the evidence earlier given by Lee to become hearsay or otherwise incompetent,
and therefore, amenable to being stricken from the record.
WHEREFORE, the petition is GRANTED and the respondent Court's challenged

Order dated October 2, 1990 is NULLIFIED AND SET ASIDE, with costs against
private respondent. cdrep
IT IS SO ORDERED.
Cruz, Gancayco, Griño-Aquino and Medialdea, JJ ., concur.
Footnotes

1. Rollo, p. 6.
2. Id., pp. 6-7.
3. Id., p. 7.
4. Id., pp. 8-9.
5. Then presided over by Hon. Domingo M. Angeles.
6. By Hon. Bayani S. Rivera, now presiding over Branch 129, RTC, Kalookan
City.
7. Rollo, p. 60.
8. Id., p. 61.
9. Amendments of the Rules of Evidence were made effective on July 1, 1989;
however, Section 9, Rule 132 contains no revision, and is exactly the same
as Sec. 14 of Rule 123 of the Rules of 1964.

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FIRST DIVISION

[G.R. No. 98376. August 16, 1991.]

PEOPLE OF THE PHILIPPINES, petitioners, vs. HON. BAYANI S.

The Solicitor General for petitioner.

Accused in that case of arson is Wilfredo L. Sembrano. It is the prosecution's

Among the witnesses presented by the Government to demonstrate

But obviously that discretion may not be exercised in a vacuum, as it were,

WHEREFORE, the petition is GRANTED and the respondent Court's challenged

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