§705-523  Immunity, irresponsibility, or
incapacity of a party to criminal conspiracy.  (1)  A person shall not be
liable under section 705-520 for criminal conspiracy if under sections
702-224(1) and (2) and 702-225(1) he would not be legally accountable for the
conduct of the other person.



(2)  It is not a defense to a prosecution under
section 705-520 that a person with whom the defendant conspires could not be
guilty of committing the crime because:



(a) He is, by definition of the offense, legally incapable
in an individual capacity of committing the offense;



(b) He is penally irresponsible or has an immunity to
prosecution or conviction for the commission of the crime;



(c) He is unaware of the criminal nature of the
conduct in question or of the defendant's criminal intent; or



(d) He does not have the state of mind sufficient for
the commission of the offense in question.



(3)  It is not a defense to a prosecution under
section 705-520 that the defendant is, by definition of the offense, legally
incapable in an individual capacity of committing the offense that is the
object of the conspiracy. [L 1972, c 9, pt of §1]



 



COMMENTARY ON §705-523



 



  The problems arising out of possible immunity,
irresponsibility, or incapacity of a person to a criminal conspiracy are dealt
with essentially in the commentary on §705-511 (dealing with immunity,
irresponsibility, or incapacity of a party to criminal solicitation).  This
section is intended to resolve these problems should they arise in a conspiracy
context.



  This section has no counterpart in previous Hawaii law. 
Other jurisdictions have held that there can be no conspiracy in such
situations because a conspiracy, as an agreement of two or more persons,
requires at least two guilty conspirators.[1]  In keeping with the unilateral
approach to conspiracy of this Code, however, it is evident that the danger of
the conspiracy arising from collective joint action remains essentially the
same whether or not one of the conspirators cannot be successfully prosecuted. 
Moreover, one of the principal reasons for imposing penal liability in the area
of inchoate crimes, i.e., the unequivocal presence of a strong intent to commit
a crime, is present regardless of the co-conspirator's innocence, incapacity,
or irresponsibility.[2]



 



__________



§705-523 Commentary:



 



1.  Prop. Mich. Rev. Cr. Code, comments at 102.



 



2.  Id.; see also commentary on §705-520.