concurring.
San Juan, Puerto Rico, March 18, 1966
What the evidence essentially proved in this case as to the question of whether or not witness Rivera was an accomplice is that defendant-appellant engaged operator Rivera, upon payment of $7, to take him from Río Piedras to Na-guabo beach, and that after visiting Corcino’s business, where appellant purchased a few things, the latter asked Rivera to take him to the house of an aunt of his (of appellant),. Afterward they went to the house of another aunt of appellant. There appellant asked driver Rivera to wait for him, and upon payment of $7 more, to take him back to Rio Piedras, and he got out of the car and went in through an alley. Appellant returned after some time, got in the car and told Rivera to return to Río Piedras.
The evidence does not make witness Rivera an accomplice. There is no evidence that operator Rivera knew what appellant was going to do (before doing it) or what he had done (after doing it). I believe that if witness Rivera would have been prosecuted and convicted on the basis of the evidence before us, this Court would have acquitted him for lack of evidence.
I believe it is necessary to point out that, in determining who is an accomplice, the phrases that the witness “may be liable to prosecution” or “may be prosecuted” or the like, to signify that one who “may be prosecuted” is an accomplice, cannot be taken literally, since it is conceivable that any witness may be prosecuted (although afterwards he is acquitted). What those phrases indicate is that if the witness is an ac*366complice, he may or could be prosecuted successfully. What .actually determines whether or not a witness is an accomplice is the evidence before the court. Not to look at the evidence, but to be guided by more or less felicitous verbalizations, is to decide on the basis of observing the shadow of the things rather than the things themselves.
The issue in this case, as in practically all cases, is controvertible. If we stretch the imagination to the utmost, we may reach almost any result. I agree with the majority opinion because I believe that it is the one which actually administers justice' correctly in this case. That, and no other, is the function of the courts.
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