Appellants Generoso and Loreto were charged with murder for the death of their brother, Domingo, with the Court of First Instance. Appellants pleaded not guilty, interposed the defense of alibi and claimed that they were 200 meters away in their houses asleep when the incident happened. At the trial, Carmen and Rogelio, wife and son respectively, of the victim, testified for the prosecution, Rogelio testified that appellants had resented his father when the land owned by Nenita, appellants’ sister, was sold to the deceased instead of appellants’ buyer which deprived them of P2,500 profit; and that earlier the day before his father was killed, appellant Generoso had asked him if he will not pity his father if they kill him. Carmen testified that she last saw her husband together with appellants and that at about 10:00 P.M. of July 4, 1975, she heard a gunshot followed by cries for help by the deceased who shouted the full name of appellants at his assailants. This statement was corroborated by Rogelio. The trial court rendered judgment finding appellants guilty as charged and sentenced them to an indeterminate sentence, On appeal, the Court of Appeals, affirmed the decision but modified the sentence to reclusion perpetua, Hence, this recourse of appellants assailing the credibility of the prosecution witnesses.

The Supreme Court held that 1) the Indeterminate Sentence Law does not apply where the penalty imposed it reclusion perpetua; 2) that for alibi to prosper as a defense, the accused must not only show that he was at some other place at the time the crime was committed but also it was physically impossible for him to have been at the scene at the time of its commission; and 3) that factual findings of the lower court are generally not disturbed on appeal.

Judgment of the trial court is modified as to penalty and affirmed in all other respect. Appellants sentenced to suffer reclusion perpetua.

1. CRIMINAL LAW; INDETERMINATE SENTENCE LAW; DOES NOT APPLY WHERE IMPOSABLE PENALTY IS RECLUSION PERPETUA. — It should be noted that under Article 248 of the Revised Penal Code the penalty for murder is reclusion temporal in its maximum period to death. Accordingly, if the penalty is to be imposed in its medium period, as Judge Buissan said, it should be reclusion perpetua. It, therefore, passes understanding why the judge imposed an indeterminate sentence considering that the Indeterminate Sentence Law does not apply if the penalty is life imprisonment. (Act No. 4103, as amended by Act No. 4225.)

2. REMEDIAL LAW; EVIDENCE; CREDIBILITY OF WITNESSES; ALIBI; ACCUSED MUST SHOW IMPOSSIBILITY FOR HIM TO BE AT THE SCENE AT THE TIME OF ITS COMMISSION. — This defense cannot be sustained. Alibi is the weakest of all defenses because it can be easily concocted. To sustain the defense of alibi, the accused must not only show that he was at some other place at the time the crime happened, but also, that it was physically impossible for him to have been at the place where the crime was committed. The distance between the house of the deceased and that of Loreto Quinlob’s is only 200 meters. It was even admitted by the defense that the shouts of Carmen Quinlob for help could be heard in Loreto’s house. In fact, appellants allege that after hearing the shout of Carmen Quinlob, Lolita Quinlob roused her husband Loreto and the couple in turn informed Generoso and Jose Lumatap and they all proceeded to Domingo’s house to verify the matter. The scene of the crime therefore is very near the house of Loreto Quinlob where the appellants were said to be sleeping.

3. ID.; ID.; PART OF THE RES GESTAE, AN EXCEPTION TO THE HEARSAY RULE: CASE AT BAR. — It is evident that the admissibility of the cry for help and the naming of his assailants by the deceased as part of the res gestae is not put in issue. Indeed, appellants cannot do so because a victim’s revelation to a witness of the identity of the assailants immediately after receiving the wounds, is part of the res gestae. (People v. Miranda, L-18508, February 29, 1964, 10 SCRA 385.) And res gestae is an exception to the hearsay rule.

4. ID.; ID.; FACTUAL FINDINGS OF THE TRIAL COURT, NOT DISTURBED ON APPEAL. — An appellate court, except in a well defined exception, will not disturb the factual findings of the trial court which was in an advantageous position to do so because it had the opportunity to hear the witnesses and to observe their demeanor. The instant case does not fall within the exception because there is nothing in the record to indicate that the trial court overlooked or misinterpreted a fact or circumstance of weight and influence which would justify disturbing its findings.

5. CRIMINAL LAW; QUALIFYING CIRCUMSTANCES; TREACHERY; CIRCUMSTANCES SHOWING PRESENCE THEREOF IN CASE AT BAR. — The location, character, gravity and number of the wounds inflicted on the deceased, the number of his assailants, and the commission of the crime in the darkness of the evening indicate treachery. Thus the killing was properly denominated as murder.

6. ID.; ID.; EVIDENT PREMEDITATION; NOT ATTENDANT IN CASE AT BAR. — However, We find no evidence of evident premeditation. For there is no showing that appellants had planned the killing and pursued the same to its completion after a sufficient interval.

7. ID.; AGGRAVATING CIRCUMSTANCE; RELATIONSHIP; PRESENT IN CASE AT BAR. — The victim was killed by his own brothers. It passes understanding why this significant fact has been overlooked by the fiscal, the trial court, the Solicitor General and the Court of Appeals. Relationship in the instant case is a generic aggravating circumstance.

8. ID.; MURDER; PENALTY; CASE AT BAR. — The result is that appellants are guilty of murder qualified by treachery with the aggravating circumstance of relationship and with no mitigating circumstance. Accordingly, the appropriate penalty is death but in view of the lack of necessary votes to impose it, We have to impose the penalty of reclusion perpetua.

In the Court of First Instance of Zamboanga del Norte, GENEROSO QUINLOB and LORETO QUINLOB were accused of murder in Criminal Case No. 1612. According to the information the crime was committed as follows:jgc:chanrobles.com.ph

"That in the evening on or about the 4th day of July, 1976, the municipality of Piñan, Zamboanga del Norte, within the jurisdiction of this Honorable Court, the above-named accused armed with a gun and a bolo, conspiring, confederating together and helping one another and with intent to kill by means of treachery and evident premeditation, did then and there willfully, unlawfully and feloniously assault, attack, shot, stab and hack one DOMINGO QUINLOB, their own brother, thereby inflicting upon him multiple gunshot lacerated wounds in the different vital parts of his body which caused his instantaneous death; that as a result of the commission of the said crime the heirs of the herein victim suffered the following damages, viz:.

(a) Indemnity for victim’s death P12,000.00

(b) Loss of earning capacity 5,000.00

(c) Moral and exemplary damages 20,000.00

————

P37,000.00

"CONTRARY TO LAW, with the qualifying circumstance of treachery and evident premeditation." (Expediente, p. 1.)

Judge Dimalanes D. Buissan rendered a decision which reads in part as follows:jgc:chanrobles.com.ph

"These circumstances enumerated above and reinforced or bolstered by the dying statement of the victim — which is considered part of the res gestae — heard by his wife Carmen, his son Rogelio and their sister Filomena, leave no iota of doubt in the mind of the Court that the deceased Domingo Quinlob was killed by his own brothers, the herein accused Generoso Quinlob and Loreto Quinlob.

"The accused are charged with the crime of murder defined and penalized under Article 248 of the Revised Penal Code, qualified by treachery as evidenced by the fatal wounds on the back and neck of the victim. The prosecution has not proved any aggravating circumstances. Likewise, the defense did not prove any mitigating circumstance. The penalty, therefore, should be imposed in its medium period.

"WHEREFORE, the Court finds the accused GENEROSO QUINLOB and LORETO QUINLOB GUILTY beyond reasonable doubt of the crime of MURDER, charged against them in the Information, Applying the Indeterminate Sentence Law, without any mitigating or aggravating circumstances, the accused Generoso Quinlob and Loreto Quinlob are hereby sentenced each to suffer the penalty of an indeterminate imprisonment ranging from TWELVE (12) YEARS and ONE (1) DAY of prision mayor as minimum to TWENTY (20) YEARS of reclusion temporal as maximum.

"They are likewise jointly and severally sentenced to indemnify the heirs of Domingo Quinlob in the total sum of P37,000.00, without any subsidiary imprisonment in case of insolvency as provided for by law.

"They are likewise sentenced to suffer all the accessory penalties provided for by law.

"They are finally sentenced each to pay one-half of the costs (Expediente, pp. 415-416.)

It should be noted that under Article 248 of the Revised Penal Code the penalty for murder is reclusion temporal in its maximum period to death. Accordingly, if the penalty is to be imposed in its medium period, as Judge Buissan said, it should be reclusion perpetua. It, therefore, passes understanding why the judge imposed an indeterminate sentence considering that the Indeterminate Sentence Law does not apply if the penalty is life imprisonment. (Act No. 4103, as amended by Act No. 4225.)

Generoso and Loreto appealed their conviction and since the penalty imposed on them is less than reclusion perpetua, the appeal was correctly directed to the Court of Appeals. (Expediente, p. 417.)

In the brief which the Solicitor General filed in the Court of Appeals, We encounter a statement which also passes understanding, to wit:jgc:chanrobles.com.ph

"However, as regards the penalty imposed, murder being punishable by reclusion temporal in its maximum period to death, (Art. 248, Revised Penal Code) in the absence of any mitigating or aggravating circumstance, the imposable penalty is reclusion perpetua. Applying the Indeterminate Sentence Law in relation to Art. 61 (3) of the Revised Penal Code, the imposable penalty should be within the range of prision mayor maximum to reclusion perpetua. Hence, the indeterminate sentence that should be imposed should be from TEN (10) YEARS and ONE (1) DAY of prision mayor as minimum to TWENTY (20) YEARS and ONE (1) DAY OF reclusion perpetua as maximum.

"It is respectfully recommended that the decision of the trial court, being in accordance with law and evidence, be affirmed, except as to the penalty imposed, which should be modified to 10 years and 1 day to 20 years and 1 day." (Pp. 15-16.)

In the Court of Appeals, Justices Mariano A. Zosa (ponente), Mama D. Busran and Jorge R. Coquia found that the appellants were indeed guilty of murder but in the decision We find still another statement which passes understanding:jgc:chanrobles.com.ph

"With regards the penalty imposed by the lower court, We found the same incorrect. Murder is punishable by reclusion temporal to death. In the absence of any mitigating or aggravating circumstance (Art. 64(1) the penalty imposable is reclusion temporal.

"WHEREFORE, the decision appealed from is hereby modified. Accused-appellants Generoso Quinlob and Loreto Quinlob are sentenced to reclusion perpetua. As We find no reversible error except on the penalty imposed, the decision is hereby affirmed in all other respects." (Rollo, p. 40.)

We have here again a situation where three pairs of eyes failed to discern the difference between reclusion temporal and reclusion perpetua.

The People’s version of the facts is as follows:jgc:chanrobles.com.ph

"At about 7:00 o’clock in the evening of July 4, 1975, Accused-appellant Generoso Quinlob dropped by Domingo Quinlob home bringing tuba with him. (p. 26 TSN Jan. 11, 1977; p. 2 TSN May 9, 1977) Appellant Generoso Quinlob asked Domingo to come with him and they left Domingo’s home together. (p. 6 TSN Jan. 11. TSN, p. 2 TSN May 9, 1977) Before leaving Domingo’s house, they stayed there for a while drinking tuba. (p. 6 TSN, Jan. 11, 19711; p. 2 TSN May 9, 1977).

At about 10:00 o’clock in the evening, a gunshot was fired very near Domingo Quinlob’s home, awakening the residents therein. (p. 15 TSN Jan. 11, 1977; p. 2 TSN May 9, 1977) Immediately, thereafter, the voice of Domingo Quinlob saying that, `Meng help me because I was shot by Generoso Quinlob and Loreto Quinlob,’ was heard by Rogelio and Carmen Quinlob. (p. 410, Record; pp. 8-9, Appellants’ brief; p. 8, TSN Jan. 11, 1977)

Rogelio Quinlob, together with his mother, Carmen Quinlob, went downstairs, lighted the place, and found Domingo Quinlob at a distance of about 5 meters from their home lying on his belly, dead. (p. 9 TSN Jan. 11, 1977; p. 3 TSN May 9, 1977)

The deceased had suffered multiple wounds caused by sharp and bladed weapons, and gunshots. (p. 3, 4-6 A TSN Sept. 9, 1976; Exhs. "A, A-1 to A-4, A-4a to A-4b, A-5"). The deceased suffered fatal multiple wounds all throughout his entire body. (Exhs. "B, B-1 to B4") The multiple wounds inflicted on the deceased were the latter’s immediate cause of death. (Exhs. "C, C-1 to C-2") the location, character, and gravity of the wounds inflicted, point to no other conclusion, but to a treacherous and premeditated attack insuring the deceased demise.

Finding her husband dead, Carmen Quinlob shouted for help. Loreto and Generoso Quinlob then appeared, the latter bringing a bolo. Both appellants showed no pity on their deceased brother. (p. 3 TSN May 9, 1977) On seeing the deceased, Generoso Quinlob commented `Oy, it is already dead’. (pp. 10, 18, 19 TSN Jan. 11, 1977) When the appellants came, they were not accompanied by anyone. (p. 17 TSN Jan. 11, 1977)

The killing was, thereafter, reported to the barrio council and the barrio captain.

Appellants did not attend the ninth day prayer of the deceased. Nor did they extend help during the deceased’s interment. (p. 23 TSN Jan. 11, 1977)

Before Domingo Quinlob was killed, or in the morning of fateful day on July 4, 1975, appellant Generoso Quinlob accosted Rogelio Quinlob, while the latter was on his way to wash clothes in Gumay river, asking Rogelio this: `Ne, dili ka malooy kon among patyon an imong amahan,’ (meaning Ne, will you not pity if we kill your father) to which query Rogelio replied: ‘Ayaw ninyong patya ang akong amahan kay inyo ra man nang igsoon.’ (meaning, do not kill my father because that [he] is also your brother (pp. 4-5 TSN Jan. 11, 1977)

The appellants harbored enmity against the deceased because the latter had purchased from their sister, Anita [Nenita], a lot for P1,000.00 which very same lot the appellants had wanted to sell to another buyer for P3,500.00, thus depriving them of a profit. (pp. 12-13 TSN Jan. 11, 1977; p. 4 TSN May 9, 1977) Since boyhood days, Generoso Quinlob had always quarrelled with the deceased and even promised to kill the latter. (pp. 3-4 TSN May 9, 1977." (Brief, pp. 3-6.)

The appellants have a different version as follows:jgc:chanrobles.com.ph

"Accused-appellants herein are the brothers of the late Domingo Quinlob who died on July 4, 1976 at Dionum, Piñan, Zamboanga del Norte. As to why and what was the cause of the death of said Domingo Quinlob and why and how come that his brothers, Accused-appellants herein, were charged with `Murder’ .. this we will relate in the following narration of facts based on the evidence presented during the trials of this case.

In the morning of July 4, 1975, Accused-appellants herein, together with Jose Lumatap, were having a bayanihan locally known as `SAOD’ in cutting bamboos owned by the father-in-law of Generoso Quinlob. These bamboos being cut were to be sold by Generoso Quinlob to Atty. Alfredo Tenorio of Mutia, Zamboanga del Norte, at P3.00 each bamboo. The accused-appellants and Jose Lumatap were able to finish cutting bamboos at about 6:00 o’clock in the afternoon and after hauling them across the river. Dionum, they went to the house of Loreto Quinlob, one of the accused-appellants in this case. Together with the accused-appellants was Jose Lumatap. After eating their supper and after a few minutes of rest, they went to sleep. Loreto Quinlob and his wife were in their room and Jose Lumatap and accused appellant Generoso Quinlob were sleeping at the sala of the house.

While they were already asleep, about 10:00 o’clock p.m. more or less, Lolita Quinlob, the wife of Loreto Quinlob, was awaken due to the call for help made by Carmen Quinlob, the wife of Domingo Quinlob. Lolita suddenly awakened her husband, Loreto Quinlob, and then the couple awakened Jose Lumatap and Generoso Quinlob informing the latter about the shout made by the wife of Domingo Quinlob.

Without losing any time, the accused-appellants, together with Jose Lumatap and the wife of Loreto Quinlob, Lolita, went down and proceeded to Domingo Quinlob’s house to verify the matter and there, in the yard of the house of Domingo Quinlob, they saw the latter laying dead. The wife of Domingo Quinlob as well as his children were already there crying while looking at the deceased. Upon arrival, Generoso Quinlob then inquired from Carmen, the wife of Domingo Quinlob, who killed the latter and Carmen answered that she did not know. She kept crying. With that, the accused herein, together with the wife of Domingo Quinlob, her son Rogelio Quinlob and Jose Lumatap reported the incident, first to councilman Anastacio Miti who, in turn, accompanied them to the Barangay Captain of Dionum, Raymundo Baguinat.

It is to be noted here, however, that during the time that when the brothers of the deceased, the accused herein, inquired from the wife of Domingo Quinlob as to who killed the latter, she said she did not know the killer. And it should be noted here further that the instant case has been filed against the accused basing mainly on the alleged incident in the morning of July 4, 1975, wherein the son of the deceased Rogelio Quinlob was allegedly told by Generoso Quinlob that the latter would kill the father of the former and he was even told what would Rogelio feel and secondly, allegedly due to the shout of the deceased, Domingo Quinlob, right after he was shot and stab wherein he mentioned his assailants to be his brothers, the accused-appellants herein. These alleged incidents were made the basis of the prosecution in filing the instant case against the Accused-Appellants." (Brief, pp. 3-5.)

The appellants have made the following assignment of errors:jgc:chanrobles.com.ph

"I. THAT THE LOWER COURT ERRED IN CONVICTING THE ACCUSED-APPELLANTS DESPITE OF LACK OF IDENTITY AND THE ALLEGED MOTIVE OF THE KILLING:chanrob1es virtual 1aw library

II. THAT THE LOWER COURT ERRED IN CONCLUDING THE TESTIMONY OF THE PROSECUTION WITNESSES THAT THE DECEASED ALLEGEDLY SHOUTED THE NAMES OF THE ACCUSED-APPELLANTS WHO STABBED HIM.

III. THAT THE LOWER COURT ERRED IN BELIEVING THE ALLEGED `SHOUT FOR HELP’ AS PART OF THE RES GESTAE.

IV. THAT THE LOWER COURT ERRED IN NOT APPRECIATING THE EVIDENCE PRESENTED AND PROVED THAT THE DECEASED HAD ENEMIES AND ONE OF IS RICARDO MANDAO.

V. THAT THE LOWER COURT ERRED IN CONVICTING THE ACCUSED-APPELLANTS BY RELYING MUCH ON THE ALLEGED WEAKNESS OF DEFENSE’S EVIDENCE INSTEAD OF THAT OF THE PROSECUTION’S.

VI. THAT THE LOWER COURT ERRED IN CONVICTING THE ACCUSED-APPELLANTS DESPITE OF THE CLEAR SHOWING IN THE RECORDS OF THIS CASE THAT THE PROSECUTION MISERABLY FAILED TO PROVE THE GUILT OF THE ACCUSED-APPELLANTS BEYOND REASONABLE DOUBT." (Brief, p. 1.)

All of the assignment of errors concern the credibility of witnesses. For this reason no useful purpose can be served by discussing them one at a time. They can be lumped together for even the appellants combine some of them in their brief.

Appellants are the brothers of the victim, Domingo Quinlob; brothers-in-law of prosecution witness Carmen Quinlob; and uncles of witness Rogelio Quinlob. These prosecution witnesses testified that before the killing of Domingo, appellants passed by their house and invited the victim to drink tuba with them; that after a while, they asked the victim to go with them to the copra dryer (landahan) near the house of appellant Loreto, to drink more tuba there; that at about 10:00 o’clock they heard a gunfire followed by the shout of Domingo saying: "Meng, help me because I was shot by Generoso Quinlob and Loreto Quinlob" ; and when they found Domingo was already dead. Appellants were the only persons who were with the deceased immediately before the incident took place and he identified them as his assailants.

As to the motive of the killing, Rogelio Quinlob testified that in the morning of July 4, 1975, he went to Gumay River to wash his father’s and his own clothes and when he was near the house of Loreto Quinlob, he was overtaken by his uncle Genoroso Quinlob who asked him: "Noy, di ka ba malooy kon among patyon ang imong amahan", which was translated in the decision of the trial court, as follows: "Noy, will you not pity your father if we kill him", to which, Rogelio answered: "ayaw intawon ninyo ug patya kanang akong amahan kay inyo ra man kana siyang igsoon", which means "please do not kill my father because he is also your brother."

Rogelio further testified that before the death of his father, Generoso and Loreto had an argument with his father Domingo over a one hectare parcel of land belonging to their sister Nenita Quinlob, which his father had bought for only P1,000.00 but which Generoso and Loreto wanted to sell to Gregorio (Gorio) Bustaliño for P3,500.00. Thereby depriving appellants of the profits which they could have obtained by selling the land to Bustaliño. Domingo, being the elder brother, had insisted of having his way which appellants resented. Carmen Quinlob testified that both Generoso and Loreto had often quarrelled with her husband, in particular when her husband bought the land of her sister-in-law, Nenita Quinlob, for P1,000.00, which Generoso and Loreto wanted to sell for P3,500.00. The frustrated land deal was a motive for the killing.

Appellants claim that the lower court erred in "concluding (sic)" the testimony of the prosecution witnesses that the deceased shouted the names of his assailants thus: "Meng, help me because I was shot by Generoso Quinlob and Loreto Quinlob" (Emphasis supplied.) Appellants contend that the statement is unusual and unnatural because in the ordinary course, their nicknames should have been mentioned but not their full names because Generoso and Loreto were brothers of the deceased.

This contention is untenable. As correctly pointed out by the Solicitor General:jgc:chanrobles.com.ph

"It is submitted that the deceased statement calling out his assailants’ full names considering they were his brothers, does not make this improbable. At any rate, it is not uncommon for a man, who is on the brink of death, to call out his assailants’ full names, to no remove any doubt as to their identities. Nor was there any reason for the deceased to call out the assailants’ nicknames. When the deceased was attacked treacherously by the appellants, any love or attachment the former may have to the latter was completely destroyed. From that moment on, to the deceased, the appellants ceased to be his brothers. In the natural course of human conduct, it is not uncommon to name hated persons in their full names." (Brief, p.8.)

Appellants further contend that when Domingo allegedly shouted for help, the prosecution witnesses, Carmen and Rogelio Quinlob, were already asleep.

On this point, Rogelio Quinlob testified as follows:jgc:chanrobles.com.ph

"Q. On July 4, 1975, at about 10:00 o’clock on the evening you, your mother and your brothers were already lying down asleep in your house?

A. Yes, sir, already lying down."cralaw virtua1aw library

(TSN, Jan. 11, 1979, p. 18.)

Considering the above testimony, it shows that the Quinlobs were not yet asleep. They were only lying down preparatory to sleep. Nevertheless, granting for the sake of argument, that they were already asleep, it is not disputed that there was a gunfire. Considering that the gun explosion was nearby, the occupants of the house must have been awakened by the gun report. Therefore, it is not improbable that Carmen and Rogelio Quinlob heard the shout for help of Domingo Quinlob.

Appellants also contend that the lower court erred in not appreciating the evidence presented which showed that the deceased had enemies and one of them is Ricardo Mandao. They advance the argument that the culprit is either Ricardo Mandao or Cesar Sumacal.

This imputation is purely conjectural. The record shows that Mandao and Sumacal were indeed arrested and investigated. But eventually they were released for lack of prima facie evidence to warrant the filing of charges against them. No evidence was presented to show that Mandao was somewhere near the place of the killing.

Appellants interpose the defense of alibi. They testified that they were at home and asleep when the incident happened.

This defense cannot be sustained. Alibi is the weakest of all defenses because it can be easily concocted. To sustain the defense of alibi, the accused must not only show that he was at some other place at the time the crime happened, but also, that it was physically impossible for him to have been at the place where the crime was committed.

The distance between the house of the deceased and that of Loreto Quinlob’s is only 200 meters. It was even admitted by the defense that the shouts of Carmen Quinlob for help could be heard in Loreto’s house. In fact, appellants allege that after hearing the shout of Carmen Quinlob, Lolita Quinlob roused her husband Loreto and the couple in turn informed Generoso and Jose Lumatap and they all proceeded to Domingo’s house to verify the matter. The scene of the crime therefore is very near the house of Loreto Quinlob where the appellants were said to be sleeping.

The third assignment of error — that the lower court erred in believing the alleged "shout for help" as part of the res gestae — gives the impression that it raises a legal issue. It does not. Anent this assignment of error, appellants say this and nothing more, to wit:jgc:chanrobles.com.ph

" [T]he lower court gravely erred in believing the testimonies of the deceased’s wife and son, to the effect that the deceased was able to allegedly name the full names of his brothers, Accused-appellants herein, and in declaring that the same is a part of res gestae. This is so because, as adverted to earlier, the said shout has not been clearly proved and established that it was indeed uttered. In declaring, then, that the said alleged shout is a part of res gestae, the lower court has acted arbitrarily on this score." (Brief, p. 11.)

It is evident that the admissibility of the cry for help and the naming of his assailants by the deceased as part of the res gestae is not put in issue. Indeed, appellants cannot do so because a victim’s revelation to a witness of the identity of the assailants immediately after receiving the wounds, is part of the res gestae. (People v. Miranda, L-18508, February 29, 1964, 10 SCRA 385.) And res gestae is an exception to the hearsay rule.

What is put in issue in respect of the third assignment of error is the credibility of the witnesses who testified on what the deceased had uttered before he died. On this score the assignment of error must fail not only because of what We have already stated above but also because of the well-settled practice that an appellate court, except in a well-defined exception, will not disturb the factual findings of the trial court which was in an advantageous position to do so because it had the opportunity to hear the witnesses and to observe their demeanor. The instant case does not fall within the exception because there is nothing in the record to indicate that the trial court overlooked or misinterpreted a fact or circumstance of weight and influence which would justify disturbing its findings.

Dr. Isabelo T. Quicio, Rural Health Physician of Piñan, Zamboanga del Norte, issued a Necropsy Report on July 5, 1975, which gives the following:jgc:chanrobles.com.ph

"FINDINGS:chanrob1es virtual 1aw library

A. Head — No pertinent findings noted.

B. Neck — Lacerated wound, horizontal in position, at the posterior portion of the neck (nape), severing the underlying tissues and muscles, cervical column, at the level of the 2nd Cervical Vertebra, exposing the cord.

C. Body — Lacerated wound at the anterior chest wall, located at the sternal region five inches in length, penetrating laterally and anteriorly, and has it exit at the axillary region, midaxillary line. Wound exit is one inch in length, clean cut.

D. Extremities — Upper

1. Lacerated wound at the right shoulder, exposing the acromion and the superior head of the humerous, four inches length, irregularly cut.

2. Incised wound, anterior middle thirds of the right arm, two inches in length, penetrating downwards, and laterally with its sharp edge at the medial anterior thirds of the arm.

3. Incised, lacerated wound, irregularly cut, left arm, and shoulder severing the acromio-scapular joint, and the underlying muscles.

4. Incised wound at the distal portion of the left forearm, four inches in length cutting the underlying tissues and muscles.

5. Lacerated wound at the posterior aspect of the left hand, 3 1/2 inches in length exposing the extensor tendons of the fingers, cutting off the left thumb finger oblique, with its distal end to the cut portion of the thumb.

Extremities — Lower

6. Gunshot burn at the anterior middle aspect of the right thigh, oblong in shape, two centimeters in diameter.

7. Gunshot wounds at the anterior upper thirds of the thigh, left, 1 1/2 centimeters in diameter, with its entrance wound at the antero-medial aspect of the thigh. Exit is at the postero-medial aspect of the left thigh, 2 cm. in diameter. Powder burns seen around.

8. Gunshot wound, 1 1/2 centimeters in diameter, at the lateral middle thirds of the left thigh, hitting the middle thirds of the femur. There was no exit wound. Slug was taken thereat embedded at the muscle tissues.

E. Back — A severely lacerated, incised wound, back, oblique, from the right shoulder blade down to the inferior angel of the left scapula, severing the 3rd and 4th Thoracic Vertebrae.

CAUSE OF DEATH:chanrob1es virtual 1aw library

Death is probable due to shock, due to Severe Hemorrhage due to Gunshot wounds at the Left Thigh, and Multiple Lacerated Wounds of the Left Arm, Left Forearm, both Shoulders, Anterior Chest, and Back." (Exhibit A, Expediente, pp. 10-11.)

The location, character, gravity and number of the wounds inflicted on the deceased, the number of his assailants, and the commission of the crime in the darkness of the evening indicate treachery. Thus the killing was properly denominated as murder. However, We find no evidence of evident premeditation. For there is no showing that appellants had planned the killing and pursued the same to its completion after a sufficient interval.

The victim was killed by his own brothers. It passes understanding why this significant fact has been overlooked by the fiscal, the trial court, the Solicitor General and the Court of Appeals. Relationship in the instant case is a generic aggravating circumstance. (People v. Palo, 101 Phil. 963 [1957].)

The result is that appellants are guilty of murder qualified by treachery with the aggravating circumstance of relationship and with no mitigating circumstance. Accordingly, the appropriate penalty is death but in view of the lack of necessary votes to impose it, We have to impose the penalty of reclusion perpetua.

WHEREFORE, the judgment of the trial court is modified as to the penalty only but affirmed in all other respects; appellants are hereby sentenced to suffer reclusion perpetua and each to pay one-half of the costs.

SO ORDERED.

Teehankee, (Acting C.J.), Makasiar, Aquino, Guerrero, De Castro, Melencio-Herrera, Plana, Escolin, Vasquez, Relova and Gutierrez, Jr., JJ., concur.

Fernando, C.J. and Concepcion, J., are on leave.