GERARDO ALFARO, a NARCOM agent, was stabbed and shot with his service pistol in a drinking spree. He died in the hospital the following day. His drinking partners, Rolando Manlulu and Dante Samson, were haled to court for his violent death.

The prosecution charges that Manlulu and Samson conspired in the murder of Agent Alfaro. The accused on the other hand invoke self-defense. They also insist that the non-issuance of a search warrant and warrant of arrest should nullify their arrest and consequently exclude from judicial consideration the evidence thus obtained.

But the trial court was not convinced. It found accused Dante Samson and Rolando Manlulu "guilty beyond reasonable doubt as principals in the crime of Murder defined and penalized under Article 248 of The Revised Penal Code with the mitigating circumstance of voluntary surrender on the part of Dante Samson and no mitigating circumstance modifying the commission of the offense on the part of Rolando Manlulu."^[1] As a result, accused Dante Samson was sentenced to a prison term of ten (10) years and one (1) day of prision mayor, as minimum, to seventeen (17) years, four (4) months and one (1) day of reclusion temporal, as maximum, while accused Rolando Manlulu, to twelve (12) years, five (5) months and eleven (11) days of reclusion temporal, as minimum, to eighteen (18) years, eight (8) months and one (1) day of reclusion perpetua as maximum. They were also sentenced jointly to indemnify the offended party P30,000.00 as compensatory damages and P10,410.00 for hospitalization and funeral expenses, and to pay the costs.

Upon review, the appellate court raised their penalties to reclusion perpetua and certified the case to this Court pursuant to Sec. 13, Rule 124, of the 1985 Rules on Criminal Procedure.^[2]

Testifying for the prosecution, Wally Manlapaz, a.k.a. Crisanto Meneses, narrated that at around ten o'clock in the evening of 29 May 1986, he and accused Dante Samson and Rolando Manlulu were having a drinking spree in an alley along Quirino Avenue, Paco, Manila. They were later joined by Agent Gerardo Alfaro who had a .45 cal. pistol tucked to his waist. When Alfaro arrived he blurted out, "Dito may kumakatalo sa aking tao."^[3] At twelve o'clock midnight, the group transferred in front of the house of Manlapaz and continued to drink. There Samson suddenly stabbed Alfaro in the chest with a 6-inch double-bladed knife while boasting, "Dapat sa iyo manahimik na."^[4] Alfaro at this time was "somewhat bent because he was already drunk."^[5] Manlulu then followed suit and stabbed Alfaro in the abdomen several times with an ice pick they used to chip ice. Samson grabbed the .45 cal. service pistol of Alfaro and shot him in the neck. When Alfaro slumped on the pavement, both accused fled, with Samson holding Alfaro's handgun. After a few seconds, both accused returned and got Alfaro's wristwatch and wallet.^[6]

Noel Pagco, another witness for the prosecution, recounted that at the time of the shooting he was outside the alley where the accused and the deceased were drinking. After hearing a gunshot coming from the direction of the alley, he saw Dante Samson and Rolando Manlulu coming out the alley, the former tucking a gun in his waist and sporting a watch on his right wrist, and the latter holding an ice pick.^[7]

As already adverted to, both accused invoke self-defense. According to Samson, while they were drinking, and after taking ekis pinoy,^[8] Alfaro said he had a "prospect" and invited them to go with him. Thinking that "prospect" meant they were going to rob somebody, Samson excused himself by saying that he had just been released from prison, and had yet to fetch his wife. Alfaro, apparently resenting Samson's unwillingness to join them, drew his gun and pointed it to Samson who parried it saying: "Pare, wala tayong biruan ng ganyan. Baka pumutok iyan." But Alfaro repeatedly pointed the gun to him. Every time he did, Samson would push the gun aside. Fearful that it might go off, he held the gun and tried to ward it off, resulting in a struggle for its possession. He got hold of the ice pick on top of the drum and stabbed Alfaro instinctively. Manlapaz tried to separate them; as a consequence, Samson dropped the ice pick. As Samson and Alfaro continued to wrestle for the possession of the gun, they fell on the ground and the gun accidentally went off hitting Alfaro in the neck. Rattled, Samson immediately fled. He then fetched his wife from Malate, proceeded to Pasay City, and sent word to his father who later accompanied him to surrender to Capt. Pring of the Homicide Division of the Western Police District. When he fled, he left behind Alfaro's gun.^[9]

Rolando Manlulu corroborated the testimony of his co-accused. He added that he picked up the ice pick when it fell, and fearing that he might be the next victim should Alfaro succeed in shooting Samson, he (Manlulu) stabbed Alfaro several times with the ice pick, then dropped it, and ran away. He looked back and saw Samson and Alfaro fall on the pavement. Almost simultaneously, the gun went off.^[10]

Patrolman Reynaldo Perez recounted that at around seven o'clock in the evening of 30 May 1986 he, together with some other officers, arrested Manlulu on the information given by Manlapaz. He said that he seized from Manlulu the .45 cal. pistol and Casio wristwatch said to belong to Alfaro,^[11] and that Manlulu verbally confessed to the commission of the crime. Patrolman Perez however admitted on cross-examination that when he arrested Manlulu and seized from him the handgun as well as the wristwatch, he (Perez) was not with any warrant nor did he inform the accused of the latter's right to counsel. Perez added that at that time Manlulu was under the influence of liquor.^[12]

Dr. Marcial Ceñido, Medico-Legal Officer of the Western Police District, confirmed that Alfaro sustained nine (9) wounds, four (4) of them fatal, i.e., a gunshot wound in the neck, a penetrating stab wound probably caused by a bladed weapon, and two (2) stab wounds probably caused by an ice pick.^[13]

In this appeal, accused Manlulu and Samson would want us to believe, first, in their version of the incident, and next, that they acted in self-defense.

The account of the appellants does not inspire belief. A review of the testimony of Manlapaz, who admittedly had drunk a little too much, reveals that his story tallies not only with some accounts of accused Samson and Manlulu but also with the findings of Dr. Ceñido. Hence, except for the actual attack on the victim, the testimonies of Samson and Manlulu square with that of Manlapaz, including the conversation that took place. Thus we give credence to the testimony of Manlapaz that Samson used a bladed weapon and not an ice pick in stabbing Alfaro, contrary to what Samson would want us to believe. This version of Manlapaz is consistent with the necropsy report of Dr. Ceñido which states that the deceased had a penetrating stab wound which could have been caused by a bladed weapon. That Manlulu according to Manlapaz used an ice pick in repeatedly stabbing Alfaro was not only admitted by Manlulu on the witness stand but is confirmed likewise by the medical findings of Dr. Ceñido.

If Manlapaz was indeed too drunk to recall the events that transpired before the actual killing, then in all probability he could not have remembered the weapons used by the accused. Certainly, eyewitness Manlapaz could not have been so drunk as to muddle those incidents which impute guilt to the accused and recall only those which are consistent with their innocence.

Similarly, we cannot disregard those portions of the testimonies of the two accused which tend to confirm the narration of Manlapaz. Expectedly, the accused will refute the statements tending to establish their culpability. Hence, they have to differ in some respects from the narration of Manlapaz. Since it appears from the testimony of Manlapaz that he had not yet reached that degree of intoxication where he would have otherwise lost control of his mental faculties, we find his version to be credible as it conforms with the autopsy report and admissions of both accused.^[14] Thus, we sustain the factual findings of the trial court and reject the version of the defense. But, even if we consider the theory of the accused thus far if only to satisfy them, still they cannot elude the consequences of their felonious acts. By invoking self-defense, the accused admit killing Alfaro. The burden of proof is thus shifted to them. Their duty now is to establish by clear and convincing evidence the lawful justification for the killing.^[15] In this regard, they have miserably failed.

The three (3) requisites for self-defense are: (1) unlawful aggression on the part of the victim; (2) reasonable necessity of the means employed to prevent or repel it; and, (3) lack of sufficient provocation on the part of the person defending himself.^[16] For self-defense to prosper, it must be positively shown that there was a previous unlawful and unprovoked attack that placed the life of the accused in danger which forced him to inflict more or less severe wounds upon his assailant, employing therefore reasonable means to resist said attack.^[17]

Here, at the outset, the two accused have already failed to show that there was unlawful aggression on the part of Alfaro. A gun aimed at the accused, without more, is insufficient to prove unlawful aggression. For unlawful aggression to be appreciated in self-defense, there must be an actual, sudden and unexpected attack or imminent danger thereof, and not merely a threatening or intimidating attitude.^[18]

Even the means employed to repel or prevent the supposed attack was not reasonable. For, even if we disregard the gunshot wound which Samson claims to have resulted from an accidental firing, the victim also suffered seven other stab wounds, three of which were fatal, one of which was admittedly inflicted by Samson, while the other two, by accused Manlulu. Definitely, it was not necessary to stab, more so repeatedly, the victim. Considering their relative positions as they drank - each within the other's reach - all that was necessary was for the two accused to band together and overpower the lone victim with their bare hands, assuming the deceased was indeed pointing his gun at one of them. A stab wound may not necessarily be fatal and thus enable the victim to fire his gun. But a firm grasp by the two accused of the victim's arm holding the gun, or of the gun itself, could prevent the victim from shooting them. At any rate, the number of wounds suffered by Alfaro indicates a determined effort of both accused to kill the victim, which negates self­-defense.^[19]

Furthermore, their flight from the scene of the crime is a strong indication of their guilt.^[20] Indeed, a righteous individual will not cower in fear and unabashedly admit the killing at the earliest opportunity if he were morally justified in so doing. A belated plea suggests that it is false and only an afterthought made as a last ditch effort to avoid the consequences of the crime.^[21] If the accused honestly believed that their acts constituted self-defense against the unlawful aggression of the victim, they should have reported the incident to the police, instead of escaping and avoiding the authorities until they were either arrested or prevailed upon to surrender.^[22]

The reliance of the accused on the Constitution however is warranted. Certainly, the police authorities should have first obtained a warrant for the arrest of accused Rolando Manlulu, and for the search and seizure of his personal effects. The killing took place at one o'clock in the morning. The arrest and the consequent search and seizure came at around seven o'clock that evening, some nineteen hours later. This instance cannot come within the purview of a valid warrantless arrest. Paragraph (b), Sec. 5, Rule 113 of the 1985 Rules on Criminal Procedure provides that the arresting officer must have "personal knowledge" of an offense which "has in fact just been committed." In the instant case, neither did Pat. Perez have "personal knowledge," nor was the offense "in fact just been committed." While Pat. Perez may have personally gathered the information which led to the arrest of Manlulu, that is not enough. The law requires "personal knowledge." Obviously, "personal gathering of information" is different from "personal knowledge." The rule requires that the arrest immediately follows the commission of the offense, not some nineteen hours later. This is not any different from People v. Cendana^[23] where the accused was arrested one day after the killing of the victim, and only on the basis of information obtained by the police officers. There we said that the "circumstances clearly belie a lawful warrantless arrest."

However, the flaw, fatal as it may be, becomes moot in view of the eyewitness account of Manlapaz which we find to be credible. Hence, in spite of the nullification of the arrest of accused Manlulu, and the exclusion of real evidence, i.e., the .45 cal. service pistol of Agent Alfaro and his Casio wristwatch, as well as his extra-judicial confession which was taken in violation of the provisions of the Constitution, still the prosecution was able to prove the guilt of the accused beyond reasonable doubt. After all, the illegality of the warrantless arrest cannot deprive the state of its right to prosecute the guilty when all other facts on record point to their culpability.^[24]

While we confirm the factual findings of the trial court, which were affirmed by the appellate court, we nevertheless differ from the conclusions drawn that treachery and conspiracy attended the killing of Alfaro. Indeed, there is serious doubt as to whether treachery could be appreciated against the two accused. There is nothing on record to show that both accused deliberately employed means tending to insure the killing of Alfaro without risk to themselves arising from the defense which the latter might make. It must be noted that Alfaro set the mood of the evening with a threatening tone that someone in the group was provoking him. Clearly, the attack on Alfaro who was then armed with a .45 cal. revolver by Samson who on the other hand was merely armed with a knife could not have been so sudden as to catch the former off-guard. In fact, Manlapaz testified that after Samson's initial attack on Alfaro the latter was even able to push Samson back.^[25] Even Manlulu, who impulsively stabbed the victim, only picked up the ice pick they were using to chip ice. Taking into account the attendant circumstances, our minds cannot rest easy in appreciating the aggravating circumstance of treachery. Hence, the two accused may only be convicted of simple homicide.

There was no conspiracy likewise in the killing of Alfaro. Settled is the rule that neither joint nor simultaneous action per se is a sufficient indicium of conspiracy.^[26] The evidence shows that it was the victim who chanced upon Manlapaz and the two accused drinking, and decided to join then. Accused Manlulu was not even armed when he went to the drinking spree. We have often said that conspiracy must be established beyond reasonable doubt. Here, the prosecution failed to show that Manlulu and Samson conspired to kill Alfaro. There being no conspiracy, each is liable for his own acts.

The penalty for homicide is reclusion temporal^[27] the range of which is twelve (12) years and one (1) day to twenty (20) years. Applying the Indeterminate Sentence Law to accused Rolando Manlulu, there being no mitigating nor aggravating circumstance, the maximum of his penalty shall be taken from the medium period of reclusion temporal, which is fourteen (14) years, eight (8) months and one (1) day to seventeen (17) years and four (4) months, while the minimum shall be taken from the penalty next lower in degree, which is prision mayor, the range of which is six (6) years and one (1) day to twelve (12) years, in any of its periods.

As regards accused Dante Samson, although he is entitled to the mitigating circumstance of voluntary surrender, the same is offset by reiteracion or habituality he having previously been convicted once of robbery and thrice of theft^[28] within ten (10) years prior to this incident, each time serving sentence therefor, which further bars him from availing of the provisions of the Indeterminate Sentence Law.^[29] Consequently, he should be sentenced to reclusion temporal medium the range of which is fourteen (14) years, eight (8) months and one (1) day to seventeen (17) years and four (4) months. Furthermore, being a habitual delinquent as defined in the last paragraph of Art. 62 of The Revised Penal Code,^[30] he should serve an additional penalty within the range of prision mayor maximum to reclusion temporal minimum.^[31] And, as correctly determined by the appellate court, the civil liability of both accused is increased from P30,000.00 to P50,000.00. In addition, both accused are liable to indemnify the heirs of their victim in the amount of P10,410.00 for hospitalization and funeral expenses.

WHEREFORE, the judgment appealed from is modified as follows:

(a) ROLANDO MANLULU is found guilty of HOMICIDE and is sentenced to an indeterminate prison term of eight (8) years, two (2) months and one (1) day of prision mayor medium, as minimum, to fourteen (14) years, eight (8) months and one (1) day of reclusion temporal medium, as maximum;

(b) DANTE SAMSON is found guilty of HOMICIDE and is sentenced to a straight prison term of fourteen (14) years, ten (10) months and twenty (20) days of reclusion temporal medium and, for being a habitual delinquent, is ordered to serve an additional penalty of ten (10) years and one (1) day of prision mayor maximum; and

(c) ROLANDO MANLULU and DANTE SAMSON are directed jointly and severally to pay the heirs of Gerardo Alfaro the amount of P50,000.00 as civil indemnity and P10,410.00 as death and funeral expenses, with costs.

SO ORDERED.

Cruz, (Chairman), Davide, Jr., Quiason, and Kapunan, JJ., concur.

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^[1] Decision penned by Judge Elisa R. Israel, Regional Trial Court of Manila, Branch 4, p. 13.

^[2] Decision penned by Justice Consuelo Ynares Santiago, concurred in by Justices Ricardo L. Pronove, Jr. (Chairman), and Nicolas P. Lapeña, Jr., Fifteenth Division, Court of Appeals.

^[3] TSN, 7 September 1987, p. 3, 22 December 1986, pp. 17-20.

^[4] Id., pp. 6-9.

^[5] lbid.

^[6] lbid.

^[7] Id., 7 April 1987, pp. 3-8.

^[8] A prohibited drug distributed by accused Alfaro.

^[9] TSN, 7 September 1987, pp. 9-16.

^[10] Id., 27 October 1987, pp. 13-18.

^[11] Id., 24 February 1987, pp. 4-5.

^[12] Id., pp. 13-15.

^[13] Id., 6 April 1987, pp. 5-8.

^[14] People v. Molina, G.R. No. 59436, 28 August 1992, 213 SCRA 52.

^[15] People v. Boniao, G.R. No. 100800, 27 January 1993, 217 SCRA 653; People v. Mindac, G.R. No. 83030, 14 December 1992, 216 SCRA 558.

^[16] Par. 1, Art. 11, The Revised Penal Code.

^[17] People v. Amania, G.R. No. 97612, 23 March 1993, 220 SCRA 347.

^[18] People v. Salazar, G.R. No. 84391, 7 April 1993, 221 SCRA 170, citing People v. Rey, G.R. No. 80089, 13 April 1989, 172 SCRA 149 and People v. Bayocot, G.R. No. 55285, 28 June 1989, 174 SCRA 285.

^[19] See People v. Sagadsad, G.R. No. 88042, 13 November 1992, 215 SCRA 641.

^[20] People v. Rivera, G.R. No. 101798, 10 May 1993, 221 SCRA 647; People v. Molina, G.R. No. 59436, 28 August 1992, 213 SCRA 52.

^[21] People v. Salazar, see Note 18.

^[22] See Note 20, Ibid.

^[23] G.R. No. 84715, 17 October 1990, 190 SCRA 538.

^[24] People v. Briones, G.R. No. 90319, 15 October 1991, 202 SCRA 708.

^[25] TSN, 22 December 1986, p. 7.

^[26] People v. Regular, No. L-38674, 30 September 1981, 108 SCRA 23, citing U.S. v. Magcomot, 13 Phil. 386 and People v. Caballero, 53 Phil. 585.

^[27] Art. 249, The Revised Penal Code.

^[28] Accused Dante Samson first served sentence for robbery on 29 January 1975 and was paroled on 11 July 1975, then imprisoned for theft on 31 October 1979 and discharged on 6 April 1980, then again committed to prison for simple theft on 8 October 1980 and discharged on 13 May 1982, and finally recommitted for theft on 18 April 1983 and discharged on 23 September 1983; Exhs. "S" and "S-1" (Records, pp. 11-12) and TSN, 5 October 1987, pp. 5-6.

^[29] Sec. 2, Act No. 4103, as amended.

^[30] The last paragraph of Art. 62 of The Revised Penal Code reads: "For purposes of this article, a person shall be deemed to be habitual delinquent, if within a period of ten years from the date of his release or last conviction of the crimes of serious or less serious physical injuries, robo, hurto, estafa, or falsification, he is found guilty of any of said crimes a third time or oftener."

^[31] Par. 5(c), Art. 62, The Revised Penal Code.