This is an appeal by Renante Sison alias Dante from the Decision of Branch 44 of the Regional Trial Court of Dagupan City, First Judicial Region convicting him of the crime of murder.1 [In Criminal Case No. D-11734 penned by Judge Crispin C. Laron.]

The Information against the accused and Jessie Sison reads:

Both accused were arraigned on September 10, 1993. Renante pled not guilty. Jessie was not arraigned as the trial judge2 [Judge Erna Falloran-Aliposa.] found him mentally unfit. He was ordered to be treated at the Baguio General Hospital. His trial was suspended.3 [Records, pp. 66-67.] In due time, he recovered. Hence, on May 11, 1994, the trial judge directed his return to jail to face trial.4 [Records, pp. 116-120, 140-142.] On June 16, 1994 the prosecution moved to discharge him as a state witness. The motion was granted despite the opposition of the accused-appellant.5 [Records, pp. 181-184, 192-195, 229-231.]

Jessie Sison testified that accused-appellant is his uncle - his deceased father being the latter’s brother. He lives with his siblings in their family home located at Barangay Leet, Sta. Barbara, Pangasinan. On 21 May 1993, at about midnight, accused-appellant and Alfredo Cervantes went to their house. He was already asleep in the kitchen at that time. Accused-appellant woke him up saying, "I killed someone. Come with me and we will bury him." Aided by the moonlight, he saw that accused-appellant was armed with a bayonet and his clothes were full of blood. He refused to go with the two men but because of fear that accused-appellant might strike him with the bayonet, he went with them to the Sinucalan river. Upon reaching the river, accused-appellant told him and Cervantes that they would bury the person he killed. All of them dug the ground where they buried the cadaver. Then they parted ways, and he went home. He learned later that the person they buried was Edwin Abrigo.6 [TSN, Jessie Sison, June 30, 1994, pp. 3-14, 27-40.] Sccalr

Aurora Sison, Jessie’s mother corroborated her son’s testimony. She testified that their family home, where she and her children live, is located at Barangay Leet, Sta. Barbara, Pangasinan. At the southside of the house is the Sinucalan River. At about 12 o’clock midnight of 21 May 1993, she was awakened by the accused-appellant and Alfredo Cervantes. By a nearby lamp she noticed that accused-appellant was holding a bayonet with scabbard and measuring about one and a half feet long. His white T-shirt was stained with blood. Upon entering her house, accused-appellant proceeded to the room of Jessie and woke him up. She heard him order Jessie to get a shovel and bury Edwin Abrigo. Jessie refused but accused-appellant threatened him with death. After getting the shovel from the house of Egmidio Sison located about ten (10) to twelve (12) meters away, Jessie, accused-appellant and Cervantes left the house. Suspicious, she followed them until the riverbank where she saw a cadaver. She got frightened her and she left immediately. When Jessie returned, he did not speak to her. He was in shock. It was only on 23 May 1993, that Jessie spoke to her and informed her that the corpse which they buried frightened him.7 [TSN, Aurora Sison, May 11, 1994, pp. 7-12; May 20, 1994, pp. 5-47, 54-58.] Calrspped

Jonathan Abrigo, brother of Edwin, testified on 11 May 1993, at about 6:30 in the evening, he was in their house located at the Bliss Housing Project in Barangay Matic-Matic, Sta. Barbara, Pangasinan. He went out to borrow a carton box from a nearby store and passed by the house of Molong de Venecia where accused-appellant, Jessie Sison and others were engaged in a drinking spree. From two (2) meters away, he heard accused-appellant say, "Have you seen Edwin Abrigo, and that if you have seen him then we will surely kill him." He reported the incident to his mother who assured him she would talk to accused-appellant regarding his threat. He saw Edwin on 20 May 1993, and informed him about the threat from accused-appellant. Edwin responded, "I don’t know of any wrong I committed against him." That was the last time he saw his brother alive. On 23 May 1993, he and his mother could not find Edwin. They looked for him. A child named Bangkay gave to them Edwin’s brown wallet which he found near the river. They asked several persons to help them find him. They saw a newly dug grave with flies around it near the river. The grave contained the corpse of Edwin. They were able to identify Edwin’s remains through the gold ring on his finger and the short pants he was wearing.8 [TSN, Jonathan Abrigo, May 26, 1994, pp. 3-16; May 27, 1994, pp. 7-46.]

Dr. Cristito D. Garcia conducted a post mortem examination on Edwin’s cadaver. The Medico-Legal Certificate (Exhibit A) he issued shows the following findings: Scedp

In defense, accused-appellant testified that at about 7 p.m. of 21 May 1993, he left his house to work as a carpenter in the Bliss Housing Project. He returned to his house at about 11:30 a.m. to eat his lunch. At 1 p.m. he went back to work. At about 12:30 midnight, he repaired to the house of Barangay Captain de Guzman of Barangay Matic-Matic to borrow an icebag because his son had a fever. On his way back, he saw a light coming from the housing project and waited for the person carrying it. It was Alfredo Cervantes. As they walked together, Cervantes asked him to inform Jessie Sison that Edwin Abrigo is missing and he is the suspect. When they reached his house, he applied the icebag to his son. Thereafter, they went to the house of Jessie woke him up and told him about the disappearance of Edwin Abrigo. Jessie was mum. Edpsc

Accused-appellant also declared that he had a misunderstanding with Jessie. It was allegedly brought about by Jessie’s use of marijuana and his daughter’s report that Jessie was fooling her. He scolded Jessie who apologized. On 22 May 1993, Alfredo Cervantes informed him about the death of Edwin Abrigo. On 23 May 1993, he learned that the body of Edwin Abrigo was dug up at Barangay Matic-Matic beside the Sinucalan River. Later, he and two (2) other men were picked up and jailed by the policemen of Sta. Barbara. They asked him if he had any difference with Edwin Abrigo. The three of them were released at about 8:30 in the evening. After some time, he was again apprehended and detained together with Jessie Sison in the municipal jail of Sta. Barbara.

He denied the testimonies of Jonathan Abrigo Aurora Sison implicating him to the crime at bar. He claimed that he was wearing a black shirt and a pair of blue pants when he went out to borrow the icebag on the evening of 21 May 1993. He admitted that he has been charged previously with the crime of robbery with rape.10 [TSN, Renante Sison, September 7, 1994, pp. 4-48.10]

Remedios Sison, accused-appellant’s wife, corroborated the testimony of her husband that he went to the house of Barangay Captain De Guzman on 21 May 1993, at past 12 o’clock midnight, to borrow an icebag for their sick son. She declared, however, that Cervantes went to their house after the arrival of her husband from the house of the said barangay captain. She likewise stated that Jessie Sison and her husband have no misunderstanding, and the relationship of her husband with Aurora Sison is pleasant.11 [TSN, Remedios Sison, August 23, 1994, pp. 3-47.] Edp

Trial court convicted accused-appellant of the crime of murder, rationalizing as follows:

Accused-appellant was sentenced to reclusion perpetua and to indemnify the heirs of Abrigo in the amount of P50,000.00. He was also ordered to pay P1,000.00 representing the expenses of Priscila Abrigo and the cost of suit.

Accused-appellant is now before this Court interposing the following assignment of errors: Edpmis

We find no merit in the appeal.

We reject the first contention of the accused-appellant. The records will show that it is only now that the accused-appellant is assailing the discharge of Jessie Sison as a state witness. This is too late in the day. In the early case of US v. Inductivo,13 [40 Phil. 84 (1919); see also US v. Bonete, 40 Phil. 958, 964 (1920)] where it was only on appeal that counsel for the accused first argued against the competence of one Obdulio as a state witness, we held that "x x x it is almost universal rule x x x that aside from matters jurisdictional, which can only be raised for the first time on appeal, and aside from a few other exceptions which need not be noticed, questions not raised in the trial court will not be considered on appeal." Jjsc

Moreover, it is difficult to sustain accused-appellant’s submission that Jessie Sison is the most guilty of the crime at bar. The discharge of Sison as a state witness because he does not appear to be the most guilty is highly factual in nature. The discretionary judgment of the trial court on this factual issue is seldom interfered with by appellate court except in case of grave abuse of discretion. We do not see any compelling reason to fault the discharge of Sison as a state witness in light of the trial court’s assessment of the totality of the evidence adduced by the parties. Examining the evidence, we find no competent evidence establishing Sison as the most guilty party. Allegedly, the PNP of Sta. Barbara, Pangasinan had sworn statements of Danilo Losendo and Rodelio Lurian pointing to Sison as the one who stabbed the victim. These sworn statements are, however, hearsay evidence for Losendo and Lurian did not testify in court. Efforts of the authorities to locate them proved fruitless.

We also reject the second contention of the accused-appellant assailing the credibility of Jessie Sison and his mother, Aurora Sison. Allegedly, Jessie Sison does not deserve credence as he was a mental case. The records, however, show that Sison underwent treatment before he testified in court. In a letter dated May 20, 1994, Sison’s attending physician assured the court that he has recovered from his mental illness. A reading of his direct testimony and his answers during the cross-examination reveals that he could intelligently communicate his perceptions of the crime at bar. Jessie’s testimony was corroborated in its material points by his mother. Both Jessie and his mother have no ill-motive to frame accused-appellant for such a serious crime as murder. Their credibility is unaffected by trivial inconsistencies in their testimonies such as whether the night of May 21, 1993 was a moonlit night, or whether a lamp aided the witnesses in identifying the accused-appellant. As well-stressed by the Solicitor General, "what is material for the conviction of appellant is the positive and categorical testimony of Jessie Sison and Aurora Sison that appellant, armed with a bayonet, came to their house in the evening of May 21, 1993, told Jessie Sison that he killed somebody and thereafter coerced him to bury the cadaver of the victim who turned out to be Edwin Abrigo."14 [Appellee’s Brief, pp. 26-27.] Scjj

Our rules on evidence allow the conviction of an accused even if no eyewitness is available provided that enough circumstantial evidence has been established by the prosecution to prove beyond reasonable doubt that the accused committed the crime.15 [People v. Lagao, Jr., 271 SCRA 51 (1997)] Section 4, Rule 113 of the Revised Rules of Court thus provides: Sjcj

We hold that the following circumstances, which accused-appellant failed to disprove by his feeble defense of denial, proved beyond reasonable doubt that he killed Edwin Abrigo:

We now review appellant’s conviction of the crime of murder in keeping with the Court’s duty, as an appellate tribunal, to correct such errors as may be found in the judgment appealed from, whether they are made the subject of assignment of errors or not.16 [Tabuena v. Sandiganbayan, 268 SCRA 332 (1997); Obosa v. Court of Appeals, 266 SCRA 281 (1997)]

We do not agree with the trial court's ruling that evident premeditation qualified the killing of Edwin Abrigo to murder based on the testimony of Jonathan Abrigo. The qualifying circumstance of evident premeditation must be established with equal certainty and clearness as the criminal act itself. It must be based on external acts which are evident, not merely suspected, and which indicate deliberate planning.17 [People of the Philippines v. Juan Pena, G. R. No. 116022, July 1, 1998; People v. Lacao, 60 SCRA 89 (1974), citing U. S. v. Banagale, 24 Phil. 69, 73; People v. Mendova, 100 Phil. 811 (1957)] It cannot be presumed from mere lapse of time.18 [U. S. v. Ricafort, 1 Phil. 173 (1902)] To authorize its finding, three (3) requisites must be duly proven, to wit: (a) the time when the offender determined to commit the crime; (b) an act manifestly indicating that the offender clung to his determination; and (c) a sufficient interval of time between the determination and the execution of the crime to allow him to reflect upon the consequences of his act.19 [People v. Derilo, 271 SCRA 633 (1997)] We are not persuaded that evident premeditation was proved beyond reasonable doubt. While Jonathan Abrigo’s testimony seems to indicate that accused-appellant had planned to kill the victim as early as ten (10) days before the incident, there is no evidence that the accused-appellant clung to his determination. Appellant’s threat uttered while intoxicated20 [TSN, Jonathan Abrigo, May 27, 1994, p. 20.] is insufficient to constitute premeditation when it was not followed by subsequent acts revealing a firm and decided purpose to carry out said threats and that he coolly and with reflection persisted in his purpose to commit the crime. Such threat may be construed only as a casual remark of a drunken man. Jurismis

We agree with the trial court that abuse of superior strength was not proved. Likewise, we affirm its appreciation of nighttime as an aggravating circumstance. Nighttime facilitated the comission of the crime. Indeed, appellant took advantage of it by immediately burying the corpse of Edwin Abrigo immediately to prevent its discovery.

Accordingly, appellant should be held liable only for the crime of homicide defined under Article 249 of the Revised Penal Code. There being one (1) aggravating circumstance which attended the killing, the penalty of reclusion temporal provided under said article shall be imposed in its maximum period. Applying the Indeterminate Sentence Law, appellant’s sentence should be within the range of prision mayor, as the minimum, and reclusion temporal in its maximum period, as the maximum.

IN VIEW WHEREOF, the appealed Decision is MODIFIED. Appellant Renante Sison is found GUILTY OF HOMICIDE and sentenced to an indeterminate penalty of ten (10) years and one (1) day of prision mayor, as minimum, to twenty (20) years of reclusion temporal, as maximum. Supreme

In all other respects, the questioned Decision is AFFIRMED.

Davide, Jr., C.J., (Chairman), Kapunan, Pardo, and Ynares-Santiago, JJ., concur.