Dear PAO,

My brother was incriminated in a crime. The investigator claimed that the mere presence of my brother with his co-accused in the crime scene is enough to conclude that my brother conspired with his co-accused. Is there a conspiracy under the circumstances?

Hallora

Dear Hallora,

Conspiracy per se is not a crime that is punishable. It is only punishable as a crime when the law specifically provides a penalty and this is in consonance with Article 8 of the Revised Penal Code which provides that:

"Conspiracy and proposal to commit felony are punishable only in the cases in which the law specially provides a penalty therefor. A conspiracy exists when two or more persons come to an agreement concerning the commission of a felony and decide to commit it. xxx"

However, conspiracy can be a mode of committing a crime which could implicate a person with the commission of a crime and consequently punished. Yet, it cannot be presumed. It must first be proven. This is the pronouncement of the court in its decision in the case of People of the Philippines v. Lira, et al., GR 235991, March 18, 2021, where the Supreme Court speaking through former Chief Justice Diosdado Peralta stated that:

"In People v. Lababo, et al., citing Bahilidad v. People, the Court summarized the basic principles in determining whether conspiracy exists or not. Thus:

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"There is conspiracy when two or more persons come to an agreement concerning the commission of a felony and decide to commit it. Conspiracy is not presumed. Like the physical acts constituting the crime itself, the elements of conspiracy must be proven beyond reasonable doubt. While conspiracy need not be established by direct evidence, for it may be inferred from the conduct of the accused before, during and after the commission of the crime, all taken together, however, the evidence must be strong enough to show the community of criminal design. For conspiracy to exist, it is essential that there must be a conscious design to commit an offense. Conspiracy is the product of intentionality on the part of the cohorts. It is necessary that a conspirator should have performed some overt act as a direct or indirect contribution to the execution of the crime committed. The overt act may consist of active participation in the actual commission of the crime itself, or it may consist of moral assistance to his co-conspirators by being present at the commission of the crime or by exerting moral ascendancy over the other co-conspirators. Hence, the mere presence of an accused at the discussion of a conspiracy, even approval of it, without any active participation in the same, is not enough for purposes of conviction."

Applying the said decision in your situation, the elements of conspiracy must be proven beyond reasonable doubt. Conspiracy may be inferred from the conduct of the accused before, during and after the commission of the crime which should be taken all together. It is essential that the accused should have performed an overt act as a direct or indirect contribution to the execution of the crime and the evidence must be strong as to show the community of criminal design. Thus, the mere presence of your brother in the crime scene is not sufficient to establish conspiracy with his co-accused, absent any allegation of over act or conduct on his part that would show his participation to achieve a common criminal objective.

We hope that we were able to answer your query. Please be reminded that this advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.

Editor's note: Dear PAO is a daily column of the Public Attorney's Office. Questions for Chief Acosta may be sent to [email protected]