A Mere Lookout, Not A Conspirator - A Law Each Day (Keeps Trouble Away

In criminal law, conspirators and accompliances have one thing in common: they know and agree with the criminal design. The difference, however, is that the liability of a conspirator is collective and not individual. The act of one of them is deemed the act of all. In the case of an accomplice, the liability is one degree lower than that of the principal. When is a person deemed an accomplice and when a conspirator? This is answered in this case of Nardy.

Nardy was charged with murder for the killing of Leo together with Jimmy, Eddie and Ferdie. Only Nardy and Jimmy were formally charged as Eddie and Ferdie were not immediately identified and remained at large.

Nardy's participation was based on the eyewitness' account that he was seen with Jimmy, Eddie and Ferdie inside Leo's car when Leo was struck with a blunt object while inside said car after a loud altercation. Thereafter, the disabled Leo was dragged out by Eddie who shot him in the head.

Nardy himself elaborated further the extent of his participation in an extrajudicial statement given to the police investigators with the assistance of counsel wherein he declared that: Eddie was his barkada together with Jimmy and Ferdie; two days before the incident, he slept at the house of Eddie and was told him that according to Eddie "uunahan na niya si Leo bago siya maunahan nito"; thereafter, Eddie told him to fetch the other barkada Ferdie while he and Jimmy will bring his girlfriend to the latter's mother at the hospital; that later on, the four them met again at Eddie's house, ate lunch and left for a nearby subdivision where Jimmy lived and where Leo the victim likewise resided; while inside the subdivision, Ferdie and Jimmy left them to go to Leo's place and later he and Eddie followed; that he stayed behind to act as lookout while Eddie approached Jimmy and the victim Leo; that thereafter, an alteration ensued between Eddie and Leo as Jimmy tried to pacify Eddie; that Eddie could not be pacified and kicked Leo and then pulled out his caliber .38 and shot Leo in the head; that as Eddie was dragging the fallen victim, Ferdie approached him while Jimmy told him to scamper away; that he did run but was caught by the subdivision's security guards, turned over to the police; that at the police station, he made his extrajudicial statement wherein he admitted having known of the plan of Eddie to kill Leo and that Eddie and Jimmy had with them two firearms while Ferdie had a baseball bat that day; that he was forced to join them because nagkahiyaan na lamang.

Based on this evidence, the lower court convicted the four accused including Nardy of the crime of murder because of the existence of conspiracy among them. Was the trial court correct?

No. Nardy should be convicted only as an accomplice not as principal by conspiracy. It is axiomatic that the prosecution must establish conspiracy beyond reasonable doubt. The eyewitness' testimony contains nothing that could inculpate Nardy. Aside from seeing Nardy inside the car, no other act is imputed to him. Mere presence does not amount to conspiracy.

Nardy's extrajudicial statement on the other hand established three points: first that he knew of Eddie's malevolent intention; second, his companions were armed that day, a fact which revealed the unmistakable plan of the group; and third, that he cooperated with the other accused in the commission of the crime by placing himself at a certain distance from Eddie and the victim in order to act as a lookout.

Nardy's presence was not innocuous. Knowing that Eddie intended to kill the victim and that the three-co-accused were carrying weapons, he had acted as a lookout to watch for passersby. He was not an innocent spectator; he was at the scene of the crime in order to aid and abet the commission of the crime. These facts, however, did not make him a conspirator; at most he was only an accomplice. He did not participate in the decision to kill Leo; that decision was made by Eddie and the others. He joined them that afternoon after the decision to kill had already been agreed upon; he was there because nagkahiyaan na. Significantly, the plan to kill could have been accomplished without him as he also was unarmed that afternoon.

Conspirators know the criminal intention because they themselves have decided upon such course of action. Accomplices come to know about it after the principals have reached the decision, and only then do they agree to cooperate in its execution. Conspirators decide that a crime should be committed; accomplices merely concur in it. Accomplices do not decide whether the crime should be committed; they merely assist to the plan and cooperate in its accomplishment. Conspirators are the authors of the crime; accomplices are merely the instruments who perform acts not essential to the perpetration of the offense.

So Nardy is only liable as an accomplice and should suffer the penalty of imprisonment of eight years and one day as minimum to 14 years, eight months and one day as maximum (People of the Philippines vs. De Vera et. al. G.R. No. 128966 Aug. 18, 1999).

Atty. Sison's e-mail address is: [email protected]