§702-221 Liability for conduct of another. (1) A person is guilty of an offense if it is committed by his own conduct or by the conduct of another person for which he is legally accountable, or both.

(2) A person is legally accountable for the conduct of another person when:

(a) Acting with the state of mind that is sufficient for the commission of the offense, he causes an innocent or irresponsible person to engage in such conduct;

(b) He is made accountable for the conduct of such other person by this Code or by the law defining the offense; or

(c) He is an accomplice of such other person in the commission of the offense. [L 1972, c 9, pt of §1]

Revision Note

In subsection (2)(a), "or" deleted pursuant to §23G-15.

COMMENTARY ON §702-221

Subsection (1) of this section states the general principle that penal liability, in the first analysis, rests on conduct; the conduct in most instances is that of the accused but, as the Code states, the relevant conduct may be that of a person for whose conduct the accused is legally accountable. Distinctions between principals and accessories are dispensed with and a defendant may be convicted directly of an offense committed by another for whose conduct the defendant is accountable.

Subsection (2) states those instances when a defendant will be held legally accountable for another's conduct.

Subsection (2)(a) deals with the problem of the innocent or irresponsible agent. When the defendant intentionally or knowingly causes an innocent person to engage in prohibited conduct, there is little difficulty in holding the defendant accountable for such conduct. Where the commission of an offense requires recklessness or negligence on the part of the defendant, it is sufficient that the defendant recklessly or negligently caused an innocent or irresponsible person to engage in the conduct prohibited by the offense. In short, the Code couples the state of mind of the defendant with the conduct the defendant has caused another to perform and determines the defendant's liability accordingly.

Subsection (2)(b) is intended to leave undisturbed those pieces of legislation either within or outside of this Code which impose a special measure of accountability for the behavior of another. This type of legislation usually involves the liability of a principal for acts of an agent. Thus, for example, the legislature may deem it appropriate to impose on a liquor licensee an absolute duty not to sell liquor to a minor. If the duty is nondelegable, a sale by an employee would result in the licensee's penal liability. Similarly, where strict liability is imposed it is "no more unjust to hold the innocent master than his innocent servant, acting in the course of his employment."[1]

Subsection (2)(b) does not support the concept of strict penal liability. As this chapter makes clear, such liability is rejected as a matter of general principle. However, in extraordinary cases, especially in the regulatory area, the legislature may deem such liability necessary. Subsection (2)(b) is intended only to accommodate that determination.

Subsection (2)(c) provides for legal accountability for penal complicity. The term "accomplice" is developed in following sections. Prior Hawaii law did not deal with the problem posed by subsection (2)(a). The court has held that a breach of a legal duty by an employee renders the master liable. The court said: "The delegation of the duty of supervising [publication of a newspaper], by the master to the servant, does not free the master. He is to be holden for the neglect or indiscretion of the servant."2 What the court in effect did was to make the duty nondelegable by case law. Subsection (2)(b) would recognize such decisions if predicated on legislation which either specifically or by construction imposed this measure of accountability. The subsection would also cover accountability based on strict penal liability. The previous Hawaii provisions with respect to complicity, as they related to subsection (2)(c) and following sections, are explained in the commentary on following sections.

Case Notes

Instruction on law of principals and accomplices was not erroneous. 59 H. 625, 586 P.2d 250 (1978).

Liability as accomplice in commission of sexual abuse. 61 H. 475, 605 P.2d 75 (1980).

Officer had probable cause to believe defendant was an accomplice where: (1) car's license plate and "punched" ignition were located in such places that would suggest defendant knew vehicle was stolen; and (2) defendant and car driver were parked at a house whose owner knew defendant but not the driver, suggesting that defendant assisted in the decision to park at the house, thereby aiding or attempting to aid driver's commission of an unauthorized control of a propelled vehicle (UCPV) violation; thus evidence was sufficient to provide more than a mere suspicion that defendant committed the offense of UCPV either as a principal or accomplice. 109 H. 84, 123 P.3d 679 (2005).

Cited: 9 H. App. 551, 851 P.2d 926 (1993).

Discussed: 133 H. 66, 324 P.3d 876 (2014).

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§702-221 Commentary:

1. M.P.C., Tentative Draft No. 1, comments at 19 (1953).

2. In re Lyons, 6 Haw. 452, 454 (1884).