dissenting.
San Juan, Puerto Rico, March 18, 1966
The majority opinion makes a correct exposition of the construction which we have placed on the rule requiring corroboration of an. accomplice’s testimony. The recital of the evidence is essentially correct. But we cannot agree with the .construction placed b.y the majority on the evidence in applying the rule .requiring corroboration of an accomplice’s testimony.
Before considering ■ the evidence presented in order to determine whether appellant is an acconaplice, it is first necessary to recite what happened prior to the hearing of the present case in the trial court.
Appellant and the only witness who. incriminated him were jointly accused. The information read that “the said defendants, Diego Rivera Rivera and Rafael Morales Morales, on or about March 8, 1963, and in the municipality of Na-guabo . . . unlawfully broke in the evening hours into ‘Cor-cino’s Sea.Food’ house-business . . . with the intent to commit, as they did,-larceny.” ■
*367From the minutes corresponding to May 20, 1963, it appears that on that day “defendant Diego Rivera Rivera was arraigned and that he pleaded not guilty and requested trial by jury.” The hearing of the case was set for the following August 7. As to the other defendant, appellant herein, Rafael Morales Morales, it was stated that there was no record of his having been summoned and his arraignment was set for July 5.
Appellant herein was arraigned on July 3 and the trial was set for August 7. On that day, at the request of defendant Morales, represented by his attorney, Juanita Trevino, the hearing of the case was continued to October 8. Codefendant Rivera and his attorney were summoned and notified of this setting.
On October 8 there appeared codefendant Rivera, assisted by his attorney, and the other codefendant did not appear but his attorney was in the courtroom. It appears from the minutes that the district attorney informed the court that he would use codefendant Diego Rivera as prosecution witness against Rafael Morales Morales, and the defense then moved the court to grant immunity to Rivera. The judgment rendered in that case against Rivera Rivera and which reads as follows then appears in the record:
“On this day, set for the hearing of this case, there appeared the defendant, personally and assisted by his attorney, Orlando J. Muñiz, and The People of Puerto Rico, by its district attorney, Manuel Bird Zalduondo.
“The district attorney announced to the court that he will use defendant Diego Rivera as prosecution witness in the cause against Rafael Morales Morales involving these same facts, wherefore the defense requests immunity for him.
“The court grants immunity to defendant Diego Rivera Rivera, and orders the Dismissal of the cause against him for burglary in the first degree.
“Humacao, Puerto Rico, October 8, 1963.”
*368Judgment was thus rendered in the case against Rivera ordering its dismissal.
In People v. Rodríguez Hernández, 91 P.R.R. 176 (1964), we reiterated that “regarding the necessity for corroborative evidence, we have said that an accomplice is one who willfully and knowingly — without there being coercion — Voluntarily and with intent, somehow joins in the commission of a crime, being therefore liable to prosecution for the same offense.’ In other words, it is essential that the accomplice be prosecuted for the same offense as the person accused.”
Rivera was indeed liable to prosecution for the same offense as appellant herein. Rivera’s testimony during the trial, as well as the statement given before the district attorney and which was admitted in evidence, establishes that he participated in the events which gave rise to the accusation against appellant herein. In the sworn statement he asserts that “about 1 a.m., we went back to the said business and I parked the car in front of Corcino’s business. That Rafael got out of the car with a small bag containing the tools. That I saw when he went around the rear of the business. That about one hour later Rafael came out of the business with some packages containing cigarettes and his pockets were also full of petty cash.” If the sworn statement was admitted in evidence and considered by the jury when deliberating, we fail to see any justification for dispensing with it for the purpose of determining whether or not the witness was an accomplice.
Rivera’s testimony complicated him in the offense allegedly committed by appellant. It warranted his accusation by the district attorney. That is all that is required for the necessity of corroboration of the statement to arise. As we reiterated in People v. Rodríguez Hernández, supra, “an accomplice is one who willfully and knowingly... somehow joins in the commission of a crime, being therefore liable to prosecution for the same offense.” From Rivera’s testimony it is *369clearly and reasonably inferred that he participated jointly with appellant. In the first place, he is not an authorized operator and is not engaged in driving automobiles for pay. He explained that he did it that evening because he needed money. At an unseemly hour, at 1 a.m., he drove him in his car to the front of a closed business. His companion got out of the car carrying a small bag containing tools and headed for the rear of the business. He waited for him until he returned with some packages and his pockets full of petty cash. The other requirements pointed out to the effect that in some way he willfully participated in the commission of the offense are also established. The fact that his participation was inactive does not relieve him at all from liability. People v. Aponte, 83 P.R.R. 491, 499 (1961).
There is no question that the witness could have been prosecuted for the same offense as appellant. Actually he was. It was after his arraignment and setting of the case for hearing that the district attorney moved for dismissal of the cause. It was then that the defense requested as a condition that he be granted immunity and the court rendered judgment accordingly. Although it is true that “the mere fact that a man is charged with a crime jointly with another does not ipso facto make him an accomplice,” People v. Alvarez, 37 P.R.R. 540 (1928); VII Wigmore, Evidence 339, § 2060 (3d ed. 1940), the fact that he was accused and that judgment was rendered dismissing the cause and granting him immunity unquestionably serves in the present case to buttress the conclusion that the witness was an accomplice.
Witness Rivera being an accomplice, it was necessary to corroborate his testimony as required by Rule 156 of the Rules of Criminal Procedure of 1963. It was not. And this being the only evidence establishing appellant’s liability, since the testimony of the other prosecution witness only established the corpus delicti, the judgment should be reversed and his acquittal ordered. .. .. .: .