§702-225  Liability for conduct of another;
incapacity of defendant; failure to prosecute or convict or immunity of other
person.  In any prosecution for an offense in which the liability of the
defendant is based on conduct of another person, it is no defense that:



(1)  The offense charged, as defined, can be committed
only by a particular class of persons, and the defendant, not belonging to such
class, is for that reason legally incapable of committing the offense in an
individual capacity, unless imposing liability on the defendant is inconsistent
with the purpose of the provision establishing the defendant's incapacity; or



(2)  The other person has not been prosecuted for or
convicted of any offense, or has been convicted of a different offense or degree
of offense, based upon the conduct in question; or



(3)  The other person has a legal immunity from
prosecution based upon the conduct in question. [L 1972, c 9, pt of §1; gen ch
1993]



 



COMMENTARY ON §702-225



 



  This section deals with certain defenses which will not be
allowed in any case in which the liability of the defendant is based on the
defendant's accountability for the conduct of another.



  Subsection (1) deals with the limited problem posed by a
person who cannot commit a particular offense in the person's individual
capacity but who is accountable for conduct of another who engages in the
prohibited conduct.  The Code resolves the problem by providing for liability
notwithstanding lack of individual capacity.  Thus, for example, a woman cannot
commit rape in her individual capacity, but she may nevertheless be guilty of
that crime if she assists a man to commit rape upon another woman.



  Subsection (2) eliminates the common-law defense based on
lack of conviction of the person upon whose conduct the penal liability of the
defendant is predicated.  The absence of this defense does not, of course,
relieve the prosecution of the requirement of proving that the offense was
actually committed and the defendant's complicity therein.



  Subsection (3) provides that, in the extremely rare case,
where the person upon whose conduct the liability of the defendant is
predicated has a legal immunity from prosecution, the defendant will not be
afforded a defense on that ground.



  Hawaii case law has recognized, by way of dictum, the
principle in subsection (1).[1]  The Supreme Court sidestepped an opportunity
to rule on the issue resolved by subsection (2).[3]  Subsection (3) is an
addition to the law.  No case has been found dealing with the effect of
immunity in this context.  Hawaii, unlike some other states, has not, to date,
given its prosecutors statutory power to grant immunity.



 



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§702-225 Commentary:



 



1.  Re Habeas Corpus, Balucan, 44 Haw. 271, 353 P.2d 631 (1960)
("It of course is true that a female may be convicted as an accomplice to
an act which a female is incapable of perpetrating herself.").



 



2.  See Republic v. Ruttmann, 11 Haw. 591 (1898).  In Ruttmann,
the defendant was charged for a crime on the basis of the defendant's own
conduct and on the basis of the conduct of another.  The court held that the
prior acquittal of the other person was not a defense because the defendant had
also been charged on the basis of the defendant's own conduct.  The opinion
indicates implied acceptance of the common-law position.