THIRD DIVISION
G.R. No. 128966 August 18, 1999
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
EDWIN DE VERA y GARCIA, RODERICK GARCIA y GALAMGAM, KENNETH FLORENDO and ELMER CASTRO, accused,
EDWIN DE VERA y GARCIA, appellant.
Separate Opinions
VITUG, J., separate opinion;
I share the ponencia of my colleagues in its affirmance of the conviction of appellants except, with all due respect, insofar as it has concluded that appellant De Vera is guilty merely as an accomplice.
There is conspiracy under Article 8 of the Revised Penal Code when two or more persons come to an agreement concerning the commission of a felony and decide to commit it. Conspiracy, of course, by itself is legally inconsequential unless the criminal plot is, in fact, carried out. Once the offense is perpetrated, the responsibility of the conspirators is collective, not individual, that render all of them equally liable regardless of the extent of their respective participations, the act of one being deemed to be the act of the other or the others, in the commission of the felony. An accomplice, under Article 18 of the same Code, is one who, not being a principal who (a) takes a direct part in the execution of the act, (b) directly forces or induces others to commit it or (c) cooperates in the commission of the offense by another act without which the offense would not have been accomplished (per Article 17 of the Code), collaborates in the execution of the offense by previous or simultaneous acts.
In the case at bar, De Vera, "knowing that Florendo intended to kill the victim and that the three co-accused were carrying weapons, he had acted as a lookout to watch for passersby.ℒαwρhi৷ He was not an innocent spectator; he was at the locus criminis in order to aid and abet the commission of the crime" (ponencia).
I cannot bring myself to accept any material variance between the terms "to decide," on the one hand, and "to concur" or "to assent," on the other hand, in defining, i.e., whether as a conspirator or as an accomplice, the specific criminal liability of the criminal offender. Where there is concurrence or assent by one to a plan, even when previously hatched by another or others, to commit a felony which concurrence or assent is made prior to the actual perpetration of the offense, and he then actually participates in its commission, regardless of the extent of such participation, his liability should be deemed, in my view, that of a conspirator rather than that of an accomplice. I would equate the liability of an accomplice to one who, knowing of the criminal design, but neither concurring nor assenting to it, cooperates in the execution of the crime short of taking a direct part in, and short of taking an indispensable act for the commission of the offense. In the last two instances (taking a direct part in, or taking an indispensable act for, the commission of the felony), his participation would be that of a principal under Article 17 of the Revised Penal Code.
When appellant De Vera, aware of the plan to kill the victim, agreed to be the lookout during the commission of the crime which, in fact, so took place as planned, he rendered himself liable no less than that incurred by his co-accused.
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