Before us is a petition for review of the decision of the Court of Appeals in CA-G.R. CR. No. 08553 dated June 16, 1994 affirming with modification the decision of the trial court dated July 18, 1989.

On August 7, 1978 an Information for homicide was filed before the then Circuit Criminal Court of Pasig which states as follows:

Upon arraignment all the accused pleaded "not guilty".

The fact of death of the victim due to severe hemorrhage from stab wounds in his chest and abdomen is undisputed. The Necropsy Report1 [Exh D, p. 275, OR.] filed by the NBI states:

The identities of all the accused are likewise not disputed. Two eye witnesses were presented by the prosecution pointing to Luis Alina as the one who actually stabbed the victim while the other accused did not do anything. Only Luis Alina presented evidence to support his denial of culpability and to show that it was the group of the victim who dragged him out of the jeep and hit him with a wooden club on the head. Alina declared that he went to the hospital for treatment and went home thereafter; he denied the accusation that he kicked and stabbed Rolando Samonte. Accused Asuncion, Ramirez and Salvatierra filed separate motions to dismiss/ demurrer to evidence for the alleged failure of the prosecution to show that they were in conspiracy with Alina in killing the victim. Alina also filed a motion to dismiss on the ground that the evidence for the prosecution pointing to him as the assailant is unworthy of credence. The trial court did not resolve the said motions and instead rendered judgment on May 22, 1989 finding all the accused guilty of the crime charged; the dispositive portion of the judgment states:

Accused-appellants Alina, Asuncion and Salvatierra appealed from the decision of the trial court. The Court of Appeals noted that under Section 1 Rule 122 of the Revised Rules on Criminal Procedure the accused Manuel Ramirez and Jun D. Ignacio who did not appeal from the decision of the trial court will not be affected by the judgment of the appellate court except insofar as it is favorable to them.3 [Court of Appeals, Decision, p. 27, Rollo.] On June 16, 1994 the Court of Appeals affirmed the judgment of conviction of all the accused with modification as regards the penalty imposed as follows:

Petitioners Ricardo Salvatierra, Rodrigo Asuncion and Manuel Ramirez, represented by the same counsel, filed this petition for review on the principal contention that conspiracy with Luis Alina to kill Rolando Samonte was not proven by the evidence for the prosecution. The two eyewitnesses who testified for the prosecution stated in court that it was Luis Alina who actually stabbed the victim while petitioner Salvatierra and co-defendant Jun D. Ignacio were inside the jeep and did not do anything, whereas petitioners Asuncion and Ramirez had previously fled to their respective homes which were a short distance away from the scene of the crime. Petitioners maintain that no evidence was presented by the prosecution to show unity of purpose among the accused to kill the victim and they should accordingly be acquitted of the crime charged. It is pointed out that as early as 1982 herein petitioners filed their separate motions to dismiss or demurrer to evidence on this ground but the trial court did not resolve them. Instead when they failed to attend the hearing on October 29, 1985 for the presentation of evidence for the defense, the trial court ordered them arrested for jumping bail and considered this as an indication of guilt. Thus, in the trial court’s decision rendered in 1989 herein petitioners were held to have conspired to kill Rolando Samonte. Petitioners claim that flight may be taken as an indication of guilt if the disappearance of the accused is to evade prosecution which is not the case here. The bail bonds they posted contain a proviso that failure to attend trial or hearing will only be deemed to be a waiver of their right to be present thereat; thus their failure to attend hearing in 1985 should not have been construed by the trial court as evidence of guilt. Moreover, the petitioners’ motions to dismiss/ demurrer to evidence were still pending at the time of their non-appearance for trial and the petitioners were of the honest belief that they need not attend trial nor present evidence in their behalf until after the said motions were resolved. On these two grounds the petitioners contend that both the trial court and the appellate court erred in their conclusions.

The Solicitor-General filed memorandum for the appellee praying for the affirmance of the decision of the appellate court. The appellee cites the findings of the trial court that the presence of the five accused at the different stages of the incident is sufficient to establish conspiracy to kill Rolando Samonte. The appellee quotes the findings of the trial court to wit:

The appellee argues that the presence and concerted acts of all the accused at the scene show their common purpose to kill the victim. Also the appellee asserts that the trial court properly declared the accused to have jumped bail and considered this circumstance as flight, and accordingly, evidence of guilt, for the reason that notwithstanding the posting of bail bonds the accused are still subject to the order of the court to appear for trial and failure to comply therewith was properly considered as a violation of the conditions of the bail bond.

The petition is impressed with merit.

Conspiracy exists when two or more persons come to an agreement concerning the commission of a felony and decide to commit it.5 [Art. 8, Revised Penal Code.] There is conspiracy if at the time of the commission of the felony the defendants had the same criminal purpose and acted in unison towards the execution of their common criminal design. Once the conspiracy is proven the act of one becomes the act of all regardless of who actually rendered the fatal blow on the victim. A conspirator must however, perform an overt act in furtherance of the plan to commit a felony; mere presence at the scene of the incident, knowledge of the plan or acquiescence thereto are not sufficient grounds to hold a person liable as a conspirator.6 [Aquino, The Revised Penal Code, vol. 1, 1997 ed., pp. 504-535.] As such conspiracy must be established as any element of the crime and evidence of the conspiracy must be beyond reasonable doubt.7 [People vs. Cupino, G.R. No. 125688, April 3, 2000, and the cases cited therein.] In the case of People vs. Elijorde8 [306 SCRA 188, at pp. 193-194.] this Court had occasion to explain the requisites for a defendant to be held liable as a conspirator:

The two eyewitnesses who testified for the prosecution, Romanito Guda and the Miguel Samonte, both stated in court that it was Luis Alina who actually stabbed and kicked the victim. Miguel Samonte tesified in court that the other accused-appellants Asuncion and Ramirez had fled to their houses prior to the stabbing incident while appellant Salvatierra and his companion June Ignacio did not do anything while Alina stabbed the victim. Witness Samonte’s narration of the incident is as follows:

Prosecution witness Ramonito Guda corroborated Miguel Samonte’s testimony on material points. He stated that defendant Ramirez ran to his house, which was near the scene of the incident, after the deceased was able to grab the wooden club from him; witness Guda said he did not notice where Asuncion went after this. After Ramirez and Asuncion had fled defendant Alina arrived driving a jeep with defendants Salvatierra and Ignacio inside. Guda categorically stated in court that it was Alina who stabbed and kicked the victim. It will be seen from the testimony on cross-examination of witness Guda that the other four co-accused had no participation in the stabbing. He testified:

To our mind, the strict requirement that conspiracy must be proved by evidence beyond reasonable doubt was not satisfied by the prosecution. Nowhere in the prosecution’s evidence was it shown that the defendants acted in concert towards a common criminal purpose to kill Rolando Samonte. There is no evidence on record to show that the other four accused knew of Alina’s intent to kill the victim nor that they were present at the scene intentionally to render physical or moral support to insure Alina’s success in killing Rolando Samonte. The evidence shows that after Rolando Samonte prevailed upon Ramirez and Asuncion to surrender the wooden clubs the latter fled. They were no longer at the scene of the crime when Alina arrived nor when Alina stabbed Rolando. Ramirez’ and Asuncion’s complicity in the stabbing has no evidentiary basis. Assuming on the other hand that defendants Salvatierra and Ignacio, who arrived at the scene with Alina in his jeep, knew of Alina’s plan to stab Rolando, there is no proof that they performed any overt act in furtherance of Alina’s evil design. They simply stayed in the jeep, without uttering a word much less, assist Alina in stabbing the victim. Mere knowledge or acquiescence to a criminal scheme is not sufficient to make them liable as conspirators.11 [Aquino, Revised Penal Code, supra.] In the same vein the mere presence of Ramirez and Asuncion prior to the stabbing and that of Salvatierra and Ignacio during and after the incident at the scene of the crime by themselves cannot be taken as evidence of conspiracy absent any concrete evidence that they were intentionally present to insure the success of a common criminal design. It would appear that Alina needed no assistance from any of the other defendants as he was armed with a ten-inch hunting knife. Miguel Samonte’s testimony that he saw defendants Salvatierra and Ignacio leave the scene of the crime together with Alina in the latter’s jeep does not supply the missing link to show conspiracy as leaving the crime scene together with the accused who rendered the fatal blow on the victim is not evidence of conspiracy.12 [People vs. De Jesus, 118 SCRA 616] It only supports the prosecution’s contention that Salvatierra and Ignacio knew of Alina’s plan but it does not supply the requisite link of actual participation in furtherance of a common criminal design. Accordingly, We find that the trial and the appellate courts seriously erred in finding conspiracy among the defendants. Alina acted on his own and he alone should be held liable for the death of Rolando Samonte. The other four defendants must perforce be acquitted of the crime charged.

The above finding renders it unnecessary to resolve the issue of whether or not the four defendants, Ramirez, Asuncion, Ignacio and Salvatierra, may be considered to have jumped bail for their failure to attend trial and whether such failure to attend trial should be considered as flight and as evidence of guilt. We note however, that from the records of this case the said four defendants consistently attended the hearings of this case which began in 1978.13 [Notice of appearance, April 23, 1979, p. 98, OR, et seq.] Seven years later or in 1985 when it was their turn to present evidence, they failed to attend trial in the honest belief that they need not present evidence on their behalf in view of the motion to dismiss/ demurrer to evidence which they filed before the trial court and at that time remained unresolved by the said court. We also note that the trial court in an order dated February 13, 1986 set aside the warrant of arrest of the accused Salvatierra for his failure to attend trial after due Manifestation by counsel that he should be deemed to have rested his case upon filing of the motion to dismiss and need not attend trial for presentation of evidence as he adopts the evidence for the prosecution.14 [p. 373 OR.] The bail bonds of defendants Ramirez, Asuncion and Ignacio were ordered forfeited.15 [RTC Order, April 8, 1986, p. 381 OR. However, the trial court later allowed defendant Alina, whose bail bond was confiscated for failure to attend promulgation of judgment, and Ignacio to post another bail bond. It appears that defendant Asuncion’s bail bond was reinstated as he was not included in the order of arrest issued by the trial court after promulgation of judgment, p. 451, OR. Defendant Ramirez later voluntarily submitted himself to the jurisdiction of the appellate court.]

Rule 122, section 11 of the Rules on Criminal Procedure states that an appeal taken by one or more of several accused shall not affect those who did not appeal except insofar as the judgment of the appellate court is favorable and applicable to the latter. In the case before us, accused Jun Ignacio and Manuel Ramirez, although they did not appeal from the decision of the trial court, are likewise acquitted of the crime charged for the reason that the findings of this Court with regard to the absence of conspiracy among the accused and that Alina acted on his own are similarly applicable to them. This Court affirms the finding of the appellate court that Alina is guilty of the crime charged. Alina, who did not appeal from the decision of the appellate court, is accordingly bound thereby.

IN VIEW OF THE FOREGOING, the decision of the Court of Appeals finding accused Luis Alina GUILTY of the crime charged is AFFIRMED. The decision of the appellate court finding Rodrigo Asuncion, Ricardo Salvatierra, Jun D. Ignacio and Manuel Ramirez guilty of homicide is hereby REVERSED AND SET ASIDE, and said accused-appellants are hereby acquitted of the crime charged.

Melo, (Chairman), Panganiban, and Purisima, JJ., concur.

Vitug, J., abroad, on official business.