INTRODUCTORY COMMENTARY
This chapter deals with conduct which is designed to culminate in the commission of a substantive offense but which fails to do so. The failure may be due to apprehension or intervention by law enforcement officials or it may be due to some other miscalculation on the part of the defendant. In this sense attempt, solicitation, and conspiracy are predominantly inchoate in nature and are grouped in this chapter for a unified and integrated treatment. While it is true that other offenses, such as reckless endangering, forgery, kidnapping, property damage and burglary, have inchoate aspects, "attempt, solicitation and conspiracy have such generality of definition and of application as inchoate crimes that it is useful to bring them together in the Code and to confront the common problems they present."[1]
§705-501 Criminal attempt; attempting to aid another. (1) A person who engages in conduct intended to aid another to commit a crime is guilty of an attempt to commit the crime, although the crime is not committed or attempted by the other person, provided his conduct would establish his complicity under sections 702-222 through 702-226 if the crime were committed or attempted by the other person.
(2) It is not a defense to a prosecution under this section that under the circumstances it was impossible for the defendant to aid the other person in the commission of the offense, provided he could have done so had the circumstances been as he believed them to be. [L 1972, c 9, pt of §1]
COMMENTARY ON §705-501
When a defendant attempts to aid another in the commission of a crime and the other person attempts or commits the substantive offense, the defendant is liable, under the complicity provisions,[1] for the conduct of the other person. However, where the other person does not attempt or commit the crime, the complicity sections and ordinary attempt definitions do not cover the situation. Subsection (1) provides that the defendant will be guilty of attempt to commit the crime if complicity would have resulted had the other person attempted or committed the substantive offense. For example: A knows that B plans to kill C; B is unaware of A's knowledge and does not seek A's assistance; A prevents a warning from reaching C which would otherwise have reached him; B changes his mind before engaging in any conduct; A is guilty of attempted murder.
In one other respect the complicity sections and the attempt sections operate jointly. If a defendant engages in some conduct intended to aid another but does not complete the course of conduct sufficient for the purpose, the question then posed is whether the more limited conduct would result in complicity under §§702-222 through 226. Section 702-222 provides that complicity may rest on attempt to aid another. In determining whether the defendant's limited conduct is sufficient to constitute an attempt to aid, the standard of substantiality as set forth in §705-500 should be followed. If A, in the example stated above, was apprehended before he was able to prevent a message of warning from reaching C, the question of A's liability would turn on the substantiality of his action, i.e., whether his conduct was strongly corroborative of his criminal intent.
Subsection (2) is intended to eliminate the defense of impossibility. In the example stated above, A would be guilty notwithstanding the fact, e.g., that C died from natural causes before the warning possibly could have reached him.
This section represents an addition to Hawaii law.
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§705-501 Commentary:
1. Cf. §§702-222 to 226.
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