Notes on Use

This instruction must be given where the purpose of the agreement is to commit a crime under the statutes of Oklahoma.

Committee Comments

The elements constituting the offense of conspiracy are well established in Oklahoma. See, e.g., Pearson v. State, 556 P.2d 1025 (Okl. Cr.), cert. denied, 431 U.S. 935 (1976); Wright v. State, 535 P.2d 315 (Okl. Cr. 1975); Crabtree v. State 18 Okl. Cr. 125, 193 P. 1005 (1920). The gravamen of the offense of conspiracy is the formulation of an agreement or plan to commit a prohibited offense. Whether such an agreement exists is obviously an issue for the finder of fact. Fetter v. State, 598 P.2d 262 (Okl. Cr. 1979); Blaylock v. State, 598 P.2d 251 (Okl. Cr. 1979); Pearson v. State, 556 P.2d 1025 (Okl. Cr.), cert. denied, 431 U.S. 935 (1976); Wishard v. State, 5 Okl. Cr. 610, 115 P. 796 (1911). The existence of the conspiracy may be circumstantially demonstrated by the conduct or declarations of the alleged conspirators. Holmes v. State, 6 Okl. Cr. 541, 119 P. 430 (1911); Ex parte Hayes, 6 Okl. Cr. 321, 118 P. 609 (1911); Starr v. State, 5 Okl. Cr. 440, 115 P. 356 (1911).

The Court of Criminal Appeals has described the requirement that an overt act be perpetrated in order to effect the unlawful object of the illegal combination as follows:

Williams v. State, 16 Okl. Cr. 217, 234-35, 182 P. 718, 724 (1919). See also Blaylock v. State, 598 P.2d 251 (Okl. Cr. 1979) (travel to Louisiana by defendant to discuss details concerning proposed murder sufficient to constitute overt act); Wright v. State, 535 P.2d 315 (Okl. Cr. 1975) (transfer of valuable consideration as partial payment for completion of murder sufficient to constitute overt act). The definitional instruction with respect to what conduct constitutes an overt act must be given in every case.

The Court of Criminal Appeals has held that the offense of conspiracy does not merge into a completed felony upon attainment of the illegal object of the conspiracy, so long as the conspiracy does not itself constitute an integral element of the crime(s) which the conspiracy was forged to accomplish. The plan or agreement to pursue unlawful conduct constitutes an independent crime, distinct from the substantive offense that is plotted. Pinkerton v. United States, 328 U.S. 640 (1946); McCreary v. Venable, 86 Okl. Cr. 169, 190 P.2d 467 (1948); Burns v. State, 72 Okl. Cr. 432, 117 P.2d 155 (1941).

However, this general rule of nonmerger must be considered in the context of the Wharton Rule, which may be stated as follows: "An agreement by two persons to commit a particular crime cannot be prosecuted as a conspiracy when the crime is of such a nature as to necessarily require the participation of two persons for its commission." R. Anderson, 1 Wharton's Criminal Law & Procedure § 89, at 191 (1957). Underlying the Wharton Rule is the premise that "when to the idea of an offense plurality of agents is logically necessary, conspiracy, which assumes the voluntary accession of a person to a crime of such a nature that it is aggravated by a plurality of agents, cannot be maintained." 2 F. Wharton, Criminal Law § 1604 (12th ed. 1932). As a principle of criminal law, the Wharton Rule is well entrenched in federal courts. See, e.g., Gebardi v. United States, 287 U.S. 112 (1932); United States v. Figueredo, 350 F. Supp. 1031 (M.D. Fla. 1972), reversed on other grounds, 490 F.2d 799 (5th Cir. 1974). See generally, R. Perkins, Criminal Law 621-23 (2d ed. 1969); W. LaFave & A. Scott, Criminal Law § 62, at 491-94 (1972).

Classic illustrations of the application of the Wharton Rule include adultery, bigamy, incest, and certain gambling crimes. Several limitations on the applicability of the Wharton Rule may be identified. For example, the rule does not apply when the offense could be committed by one of the conspirators alone. Laughter v. United States, 259 F. 94 (6th Cir. 1919) (transporting intoxicating liquors in a prohibition state). Nor does the rule apply, according to the prevailing view, when the number of actual participants exceeds the essential number of participants in the contemplated crime. Baker v. United States, 393 F.2d 604 (9th Cir. 1968). Accordingly, there can be no conspiracy prosecution if the defendant agrees with a legislator to give the legislator a bribe. However, conspiracy will lie if the defendant and an accomplice agree to bribe the same legislator. United States v. Burke, 221 F. 1014 (S.D.N.Y. 1915), reversed on other grounds, 234 F. 842 (2d Cir. 1916).

A final limitation upon the application of the Wharton Rule is that, if the law that defines the substantive offense does not specify any punishment whatsoever for one of the necessary participants, prosecution for conspiracy between these necessary participants will lie. Vanatta v. United States, 289 F. 424 (2d Cir. 1923) (where A agrees to make an illegal sale of liquor to B but the statute penalizes only the seller, both may be prosecuted for conspiracy).

The Wharton Rule stipulates that if all the necessary participants would be subject to punishment for the consummated substantive offense, and if only these necessary participants are parties to the agreement to commit the substantive offense, then such agreement presents no danger beyond that inherent in the crime anticipated. This rule is sound where the crime is accomplished, for it prohibits cumulative punishment for conspiracy and for the completed offense as well. However, where the substantive offense is not actually perpetrated, application of the Wharton Rule might undermine whatever legitimacy inheres in the criminalization of conspiracy as an inchoate offense. The drafters of the Model Penal Code rejected the Wharton Rule instead providing that an individual who could not be convicted of a substantive offense as an accomplice cannot be convicted of conspiracy to commit it. Model Penal Code § 5.04(2).

The object of a conspiracy may involve conduct that has been declared violative of the criminal law. Where the agreement is to commit an offense that is punishable under the criminal law, the elements of that offense must be the subject of a jury instruction, as provided in OUJI-CR 2-19.

[The weight to be afforded the testimony of a coconspirator is the subject of "evidentiary instructions" in Chapter 9.]