What is Conspiracy and Proposal to Commit a Felony or Crime?

Humans may have entertain in their minds, at one or any point of their existence, untoward or sinister objectives. Everyone is capable of thinking to kill someone or at least harm another for whatever reason one may have in his closet. At rare possible times, with mutual cooperation and common design with others, our minds meet, and purposely target another. Hence, what is conspiracy to commit a felony or crime?

The same is true in the crime where conspiracy exists, where two or more persons come to an agreement concerning the commission thereof and decide to commit it or in the proposal to commit a felony where one proposes its execution to some other person.¹  Participants, in both situations, acted in concert as a consequence of the meeting of their minds towards a common criminal goal or design. However, as a general rule, they are not punishable.

The law recognizes the reality of “meeting of minds” as innocent or at least permissible,² tolerated, in such a way that they are regarded only as preparatory acts. Yet, this may not be true in cases which the law specially provides for the punishment for conspiracy or proposal to commit a crime.

In theory, the crime of conspiracy and proposal to commit a felony is straightforward. It is conspiring with others to participate in criminal action. The law, on the other hand, can be complex and subtle. When does “just talking” create a design to be punished? When this “meeting of minds” becomes punishable, when is it not? Who “among us” are innocent, who are not?

Conspiracy and Proposal to Commit a Felony or Crime

These are only a few of the numerous intricate issues that pervade this question of law.

Article 8. Conspiracy and proposal to commit felony. – Conspiracy and proposal to commit felony are punishable only in the cases in which the law specially provides a penalty therefor.³

A conspiracy exists when two or more persons come to an agreement concerning the commission of a felony and decide to commit it.⁴

There is proposal when the person who has decided to commit a felony proposes its execution to some other person or persons.⁴

Article 8 defines itself clearly. When two or more persons decide to commit a crime together after reaching an agreement on how to carry it out, this is said to be a conspiracy. When a person who has already made the choice to commit a crime suggests the same to other persons that it be carried out, this action is referred to as a proposal.

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Are conspiracy and proposal to commit felonies or crimes punishable?

As a general rule, conspiracy and proposal to commit felonies/crimes are not punishable. The first paragraph of Article 8 of Revised Penal Code is clear as daylight as it succinctly provides that conspiracy and proposal to commit felonies/crimes are punishable only when there is a specific law which provides a penalty there for.

A very good example of this are Article 115 (Treason) Article 136 (Rebellion) and Article 141 (Sedition). The reason for this is that a conspiracy and proposal to commit felonies are only preparatory acts. Ordinarily, preparatory acts are not punishable. As long as there are no overt acts, or there is no law punishing such, conspiracy and proposal to commit felonies cannot be penalized.

The exception to the general rule that a conspiracy or a proposal to commit a felony is not punishable is where the law specifically specifies a punishment.

Thus:

Art. 115 of the Revised Penal Code lays down the penalties for conspiracy or a proposal to commit treason. In the same code, Art. 136 thereof, it also provides punishment for conspiracy or proposal to commit a coup d’etat, rebellion, or insurrection. Article 141 of the RPC outlines the penalty for conspiring to commit sedition. However, a proposal to commit sedition is not a crime, therefore, not punishable.

In the case of People vs. Peralta,⁵ the following doctrine on conspiracy was laid down:

“A conspiracy exists when two or more persons come to an agreement concerning the commission of a felony and decide to commit it.⁶

Once an express or implied conspiracy is proved, all of the conspirators are liable as co-principals regardless of the extent and character of their respective active participation in the commission of the crime or crimes perpetrated in furtherance of the conspiracy because in contemplation of law the act of one is the act of one is the all.⁶

The convergence of the wills of the conspirators in the scheming and execution of the crime amply justifies the imputation to all of them the act of any one of them. It is in this light that conspiracy is generally viewed not as a separate indictable offense, but a rule for collectivizing criminal liability.⁶

Conspiracy presupposes the existence of a preconceived plan or agreement; however, to establish conspiracy, “it is not essential that there be proof as to previous agreement to commit a crime, it being sufficient that the malefactors shall have acted in concert pursuant to the same objective.” Hence, conspiracy is proved if there is convincing evidence to sustain a finding that the malefactors committed an offense in furtherance of a common objective pursued in concert.⁶

However, in order to hold an accused guilty as co-principal by reason of conspiracy, it must be established that he performed an overt act in furtherance of the conspiracy, either by actively participating in the actual commission of the crime, or by lending moral assistance to his co-conspirators by being present at the scene of the crime, or by exerting moral ascendancy over the rest of the conspirators as to move them to executing the conspiracy.”⁶

Although, there is no direct evidence of conspiracy on this case, the Supreme Court held that conspiracy attended the commission of the murders based on the following circumstances that show beyond any doubt the acts of conspiracy:

• All those who were killed were Tagalogs. Although there were many Tagalogs like them confined in Building 4 (where majority of the prisoners confined belonged to the “OXO” gang, including all the accused), these three were singled out and killed thereby showing that their killing has been planned;⁶
• The accused were all armed with improvised weapons showing that they really prepared for the occasion;⁶
• The accused accomplished the killing with teamwork precision going from one brigade to another and attacking the same men whom they have previously marked for liquidation;⁶
• Almost the same people took part in the killing of Carriego, Barboso and Santos Cruz; and⁶
• The accused were either “OXO” members or sympathizers; and that all the victims were members of the “Sigue-Sigue” gang.⁶

The evidence on record proves beyond peradventure that the accused acted in concert from the moment they bolted their common brigade, up until the time they killed their last victim, Santos Cruz. While it is true that Parumog, Larita and Luna did not participate in the actual killing of Carriego, they are equally guilty and collectively liable as co-conspirators because the act of one is the act of all in a conspiracy.⁶

It is not necessary that a co-conspirator should take a direct part in every act and should know the part which the others have to perform. Conspiracy is the common design to commit a felony; it is not participation in all the details of the execution of the crime. All those who in one way or another help and cooperate in the consummation of a felony previously planned are co-principals. Hence, all of the six accused are guilty of the slaughter of Carriego, Barbosa and Santos Cruz – each is guilty of three separate and distinct crimes of murder.⁶

Furthermore, as stated in People vs. Peralta:⁶

“Doctrine. A conspiracy exists when two or more persons come to an agreement concerning the commission of a felony and decide to commit it. Generally, conspiracy is not a crime except when the law specifically provides a penalty therefore as in treason, rebellion, and sedition. The crime of conspiracy known to the common law is not an indictable offense in the Philippines…”⁶

According to criminal law, a crime is defined as an act or omission punished by law. In the absence of an actual crime being committed, proposal and conspiracy to commit such acts are not considered criminal and therefore not subject to any form of penalty.

To reiterate the general rule, conspiracy and proposal are not crimes hence, it is not punishable. The conspiracy and proposal are not crimes and therefore not punishable. It is based on the principle that in criminal law, the act itself (actus reus) and the criminal intent (mens rea) must both be present in order for a person to be held liable for a crime. In the concept of conspiracy and proposal to commit a crime where only the intent is present, and therefore not meeting the requisite of actus reus and mens rea being both present, it follows that it would not be subject to the penalty of law.

The first paragraph of Article 8 of the RPC qualifies that conspiracy and proposal to commit felony is punishable only in cases in which the law specially provides a penalty. In the Revised Penal Code the following conspiracies are punishable.

Article 115. Conspiracy and proposal to commit treason; Penalty. – The conspiracy or proposal to commit the crime of treason shall be punished respectively, by prision mayor and a fine not exceeding Two Million pesos, and prision correccional and a fine not exceeding One Million pesos.⁷

Article 136. Conspiracy and proposal to commit coup d’etat, rebellion or insurrection. – The conspiracy and proposal to commit coup d’etat shall be punished by prision mayor in  its minimum period and a fine which shall not exceed One million pesos (P1, 000, 000).⁸

The conspiracy and proposal to commit rebellion or insurrection shall be punished respectively, by prision correccional in its maximum period and a fine which shall not exceed One Million pesos and by prision correccional in its medium period and a fine not exceeding Four Hundred Thousand pesos.⁹

Article 141. Conspiracy to commit sedition. – Persons conspiring to commit the crime of sedition shall be punished by prision correccional in its medium period and a fine not exceeding Four Hundred Thousand pesos.¹⁰

This exception is based on the principle that the act of conspiring or proposing to commit a serious crime is already a direct threat to public safety and national security, and thus must be punished.

Section 26 of Republic Act No. 9165

Conspiracy to commit a crime is also penalized under Special Penal Laws. One such special law is the Republic Act No. 9165, otherwise known as the Dangerous Drugs Act of 2002. Under this law, any attempt or conspiracy to commit the unlawful acts relating to dangerous drugs, which is found in the Article II thereof, shall be given the same penalty as that of the actual commission of the crime. Section 26 of which reads:

Section 26. Attempt or Conspiracy. – Any attempt or conspiracy to commit the following unlawful acts shall be penalized by the same penalty prescribed for the commission of the same as provided under this Act:¹¹

(a) Importation of any dangerous drug and/or controlled precursor and essential chemical;¹²

(b) Sale, trading, administration, dispensation, delivery, distribution and transportation of any dangerous drug and/or controlled precursor and essential chemical;¹²

(c) Maintenance of a den, dive or resort where any dangerous drug is used in any form;¹²

(d) Manufacture of any dangerous drug and/or controlled precursor and essential chemical; and¹²

(e) Cultivation or culture of plants which are sources of dangerous drugs.¹²

Is this a mere conspiracy to commit a crime for which the law treat is as punishable already? 

Section 26 of RA 9165 is a mere conspiracy to commit a crime punishable under the same Act.

In People vs. Grace Ventura y Natividad,¹³ the Supreme Court affirmed the Court of Appeals Decision dated 30 June 2008, affirming the Decision promulgated by the Regional Trial Court of Malolos, Bulacan, Branch 78, finding accused-appellant Grace Ventura y Natividad guilty beyond reasonable doubt of selling 0.124 gram of methamphetamine hydrochloride or shabu, a prohibited drug, in violation of Section 5 in relation to Section 26, Article II of Republic Act No. 9165, and imposing upon her the penalty of life imprisonment and a fine of Five Hundred Thousand Pesos (₱500,000.00).

The act of the co-accused Danilo in taking the marked money from the asset and the act of Grace in handing the plastic sachet of shabu to the asset unmistakably shows that they were in concert and both share a common interest in selling the illegal substance. The evidence clearly shows that accused-appellant was involved in the buy-bust operation. Having been caught in flagrante delicto, accused-appellant’s participation cannot be doubted.¹⁴

Difference between Section 5 and Section 26 of RA 9165

Section 5 of RA 9165 provides:

“Section 5. Sale, Trading, Administration, Dispensation, Delivery, Distribution and Transportation of Dangerous Drugs and/or Controlled Precursors and Essential Chemicals. – The penalty of life imprisonment to death and a fine ranging from Five hundred thousand pesos (P500,000.00) to Ten million pesos (P10,000,000.00) shall be imposed upon any person, who, unless authorized by law, shall sell, trade, administer, dispense, deliver, give away to another, distribute dispatch in transit or transport any dangerous drug, including any and all species of opium poppy regardless of the quantity and purity involved, or shall act as a broker in any of such transactions…”¹⁵

In this provision, the offense has already been consummated and there is already a corresponding penalty (penalty of twelve (12) years and one (1) day to twenty (20) years of imprisonment and a fine ranging from One hundred thousand pesos (P100,000.00) to Five hundred thousand pesos (P500,000.00) for that offense.

Whereas, Section 26 of RA 9165 talks about the attempt or conspiracy to commit unlawful acts to which this corresponding line – “Sale, trading, administration, dispensation, delivery, distribution and transportation of any dangerous drug and/or controlled precursor and essential chemical” is enumerated as one of the circumstances an offender can be held liable if they attempt or conspire to commit offenses in relation to illegal drugs.

To put it simply, in Section 5 the offense is already consummated while in Section 26, there is only an attempt or there is a conspiracy to commit the unlawful acts enumerated in the same section.

The attempt to commit unlawful acts in relation to illegal drugs was discussed explicitly In the case of People vs. Buniag¹⁶ in what is constituted an attempted illegal sale of dangerous drugs, to wit:

“Under the rule on variance, while Buniag cannot be convicted of the offense of illegal sale of dangerous drugs because the sale was never consummated, he may be convicted for the attempt to sell as it is necessarily included in the illegal sale of dangerous drugs…¹⁷

A crime is attempted when the offender commences the commission of a felony directly by overt acts, and does not perform all the acts of execution, which should produce the felony, by reason of some cause or accident other than his own spontaneous desistance.”¹⁷

In People vs. Dimaano,¹⁸ furthermore, petitioner Dimaano was convicted of attempting to transport dangerous drugs.

The Court ruled that:

“We agree with the trial court and the Court of Appeals that the accused-appellant is guilty beyond reasonable doubt of attempting to transport dangerous drugs. The prosecution proved the essential element of the crime; accused-appellant would have successfully moved 13.96 grams of methamphetamine hydrochloride from Manila to Cebu had she not been apprehended at the initial check-in area at the Manila Domestic Airport Terminal 1. The prosecution need not present the airline ticket to prove accused-appellant’s intention to board an aircraft; she submitted herself to body frisking at the airport when 13.96 grams of methamphetamine hydrochloride was found in her person.”¹⁹

Nonetheless, glaring differences aside, there are certain cases decided by the Supreme Court that incorporate these two sections.

In the same case mentioned above, People vs. Ventura,²⁰ the Court held that the accused-appellant is guilty beyond reasonable doubt of selling 0.124 gram of methamphetamine hydrochloride or shabu, a prohibited drug, in violation of Section 5 in relation to Section 26, Article II of Republic Act No. 9165.

“In the case at bar, the evidence clearly shows that accused-appellant was involved in the buy-bust operation. Having been caught in flagrante delicto, accused-appellant’s participation cannot be doubted.”²¹

Thus, having mentioned all these, there is a clear difference between Section 5 and Section 26 of RA 9165 as to the execution of offenses; however, a clear violation of Section 5 can be in relation to Section 26 of the same law – be it attempted or in conspiracy.

Conclusion

To encapsulate, as clearly stipulated in Article 8 of the Revised Penal Code, ‘conspiracy’ exists when two or more people agree on the commission of a felony and decide to carry it out. ‘Proposal to commit a felony,’ on other hand, exists when the person who has decided to commit a felony proposes its execution to some other person or persons.

Furthermore, it is imperative to note that, as a general rule, ‘conspiracy’ and ‘proposal to commit a felony’ is not punishable under the law. However, they are penalized when there is a specific law which provides a penalty there for.

In exemplification, take into account, Article 115 of the Revised Penal Code, which provides for the penalty imposed on the mere conspiracy and proposal to commit treason, this is penalized under the law for simple reason of deterring future crimes that can placed the existence of the state in peril.

In line with this, there are several pertinent jurisprudence that the Supreme Court of the Philippines have laid down with regard to the matter at hand, and one of these is the of case of People vs. Peralta. In this case, the Supreme Court held that “conspiracy presupposes the existence of a preconceived plan or agreement; however, to establish conspiracy, “it is not essential that there be proof as to previous agreement to commit a crime, it being sufficient that the malefactors shall have acted in concert pursuant to the same objective.”²²

Moreover, the mere conspiracy to commit a felony or a crime is not just punished under the Revised Penal Code, but also under Special Penal Laws, particularly, the Republic Act No. 9165, otherwise known as the Dangerous Drugs Act of 2002. Whereas any attempt or conspiracy to commit the illegal activities related to dangerous drugs listed in Article II thereof shall be punished with the same penalty as the crime itself.

It must be noted that Section 5 and Section 26 thereof of the aforementioned law have distinctions. On a simple note, in Section 5, the crime has already been consummated, whereas in Section 26, there has merely been an attempt or a conspiracy to conduct the crimes listed in that section. However, whether intentionally or via collusion, Section 26 of the same statute can be related to a blatant violation of Section 5 of the aforementioned law.

To close the curtains, one cannot be held guilty on what he plots or put forward, as such the “mens rea” of an individual to conspire and to propose a crime is not penalized under our law, but such can be penalized, unless otherwise the law provides a penalty thereof—such as conspiracy to commit: treason, rebellion, coup d’ etat, insurrection, sedition, and proposal to commit:  treason, rebellion, insurrection, and coup d’ etat.

The provisions regarding specific conspiracy and proposal to commit a felony or crime can be seen in the annals of the decisions of the Supreme Court where they are applied and serves as a punishment to the offenders.

In our today’s society, crimes are being committed and such starts with what one ought to be conspiring and proposing. Our laws set as a means to curtail the commission of such crime like the passage of Republic Act No. 9165 otherwise known as Dangerous Drugs Act of 2002 that penalizes attempts or conspiracy to safeguard the integrity of its territory and the well-being of its citizenry particularly the youth, from the harmful effects of dangerous drugs on their physical and mental well-being, and to defend the same against acts or omissions detrimental to their development and preservation.((Section 2, RA 9165))

Time will tell whether there will be new provisions and precedents in our jurisprudence that will establish the possibility of further penalizing conspiracy and proposal of a felony or crime.

1. Article 8 of the Revised Penal Code[↩]
2. Reyes, The Revised Penal Code [2021][↩]
3. Supra., Note 1[↩]
4. Id.[↩][↩]
5. G.R. No. L-19069, October 29, 1968[↩]
6. Ibid.[↩][↩][↩][↩][↩][↩][↩][↩][↩][↩][↩][↩][↩][↩]
7. Article 115, Revised Penal Code, as amended by RA 10951[↩]
8. Article 136, Revised Penal Code, as amended by RA 10951[↩]
9. Id.[↩]
10. Article 141, Revised Penal Code, as amended by RA 10951[↩]
11. Section 26, RA 9165[↩]
12. Id.[↩][↩][↩][↩][↩]
13. G.R. NO. 184957, October 27, 2009[↩]
14. Supra., G.R. No. 184957, October 27, 2009[↩]
15. Section 5, RA 9165[↩]
16. G.R. No. 217661, June 26, 2019[↩]
17. Ibid.[↩][↩]
18. G.R. No. 174481, February 10, 2016[↩]
19. Ibid.[↩]
20. Supra., G.R. No. 184957, October 27, 2009[↩]
21. Ibid.[↩]
22. Supra., G.R. No. L-19069, October 29, 1968[↩]