§ 2-40 Conspiracy

• Library: South Carolina Requests to Charge - Criminal (SCBar) (2012 Ed.)

§ 2-40 Conspiracy

Section 16-17-410 of the South Carolina Code of Laws provides:

The common law crime known as "conspiracy" is defined as a combination between two or more persons for the purpose of an unlawful object or lawful object by unlawful means.

Hence, the gravamen of the offense of conspiracy is an agreement or combination.

The word "conspire" is defined substantially as follows: If two or more persons agree acting upon a common purpose to commit a criminal act, they conspire. A conspiracy is a combination between two or more persons to do an unlawful act or to do a lawful act by criminal or unlawful means. There can be no conspiracy when one individual acts by and for himself only. In order to become a party to a conspiracy, a person must combine with someone else to effect the object of a conspiracy by the means agreed upon. A mere mental purpose cannot justify a conviction of conspiracy. A common design is the essence of the charge of conspiracy.

In order to establish conspiracy, it is necessary first that the conspiracy or agreement to commit the offense alleged in the indictment be established. Second, to prove further as alleged in the indictment that one or more of the parties engaged in the conspiracy have committed some act to effect the object as alleged in the indictment. Although the offense of conspiracy may be complete without proof of an overt act, such acts may nevertheless be shown since from them an inference may be drawn as to the existence and object of the conspiracy. To constitute conspiracy, it is not necessary that two or more persons should meet and enter into an express or formal agreement for the doing of the unlawful act or that they should directly by words or in writing unite between themselves or otherwise what the unlawful object is to be or the details thereof or the means by which the unlawful combination is to be made effective. To establish the existence of a conspiracy, proof of an express agreement is not necessary, and direct evidence is not essential, but the conspiracy may be sufficiently shown by circumstantial evidence and the conduct of the parties. It is sufficient if two or more persons in any manner or through any contrivance positively or tacitly, come to a mutual understanding to accomplish a common and unlawful design. When an unlawful end is sought to be effected and two or more persons actuated by the common purpose of accomplishing that end work together in any way in furtherance of the unlawful scheme, each of such persons becomes a member of the conspiracy. The success or failure of a conspiracy is immaterial, but before any person can be found guilty of conspiracy, it must appear beyond a reasonable doubt that the conspiracy was formed as alleged in the indictment and that the particular defendant was an active party to it. Although the offense of conspiracy may be committed without proof of overt acts, such acts may nevertheless be shown.

Evidence of direct contact or an explicit agreement between the defendants need not be shown. It is sufficient to show that each defendant knew or had reason to know of the scope of the conspiracy and that each defendant had reason to believe his own benefits were dependent upon the success of the entire venture. Realization of profit or gain is not an element of the crime of conspiracy.

The conspiracy itself constitutes the offense and it must be made to appear from the evidence beyond a reasonable doubt, before the defendant may be convicted, that he was a party to the conspiracy. Despite the mere fact that the defendant may be engaged in the performance of any of the acts charged in the indictment, such as overt acts, you are not authorized to convict by reason of that fact alone. It is necessary to show that the defendant was a party to the conspiracy, an unlawful agreement, before he is guilty of the offense charged. Each party to a conspiracy must be actuated by an intent to promote the common design. If the persons pursue by their hand the same unlawful object, one performing one act and the other, another act, all with the view toward attainment of the object they are pursuing, the conclusion is warranted that they are engaged in the conspiracy to effect that object. There must be intentional participation in the transaction with a view and purpose to further the common design, and if a person, understanding the unlawful character of the transaction, encourages, advises, or in any manner with a purpose to forward the enterprise of the scheme, assists in its prosecution, he becomes a conspirator. Joint assent and joint participation in the conspiracy may be found, like any other fact, as an inference from the facts proved.

The evidence and proof of the conspiracy may be circumstantial. In every criminal offense, there must be concurrent an act and intent. Conspiracy is an offense requiring specific intent or purpose which must be shown to exist beyond a reasonable doubt. In determining the question of the defendant's guilt, you are to consider all the facts and circumstances in the case which touch the conduct of the defendant.

S.C. Code Ann. § 16-17-410 (2003) ("A person who commits the crime of conspiracy is guilty of a felony and, upon conviction, must be fined not more than five thousand dollars or imprisoned not more than five years. A person who is convicted of the crime of conspiracy must not be given a greater fine or sentence than he would

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