1. Implied agreement: The agreement does not have to be reached in words; each of two parties might, by his actions alone, make it clear to the other that they will pursue a common objective. For instance, if A is in the process of mugging X on the street, and V comes along and helps pin X to the ground while A takes his wallet, a conspiracy to commit larceny or robbery might well be found, despite the absence of any spoken communication.
2. Proof by circumstantial evidence: Furthermore, courts are very liberal as to the proof that must be given of the agreement’s existence. Unless one of the co-conspirators turns state’s evidence, the prosecution is unlikely to be able to prove through direct testimony that an agreement was reached. Therefore, the prosecution is normally permitted to prove the agreement merely by circumstantial evidence, that is, evidence of the acts committed by the party, in circumstances strongly suggesting that there must have been a common plan.
Example: The Ds claim to be “citizens” of the “Republic of New Africa” (RNA) in Jackson, Mississippi; RNA is composed of black Americans who are descended from African slaves. In the midst of a stake-out by FBI agents, several RNA members shoot and wound some of the agents and kill a local policeman. The gunmen, and several other RNA members, are charged with, inter alia, conspiracy to assault a Federal officer. The evidence shows that the gunmen acted almost simultaneously, in what appears to have been a coordinated attack on the agents.
Held, convictions affirmed. The conduct of the shoot-out was “strong evidence of a common plan and certainly showed concerted action.” The existence of an agreement, rather than haphazard self-defense, is buttressed by testimony that the RNA members organized highly regimented “combat-win” drills to train for an anticipated attack by law enforcement personnel. (Also, even those defendants who were not present at the shootout, but who participated in the drills, may be convicted of the conspiracy.) U.S. v. James, 528 F.2d 999 (5th Cir. 1976).
a. But must be some agreement: But the rule permitting proof of agreement by circumstantial evidence does not dispense with the need for showing that there was indeed an agreement. Suppose, for instance, that the jury in James, supra, believed that the RNA members spontaneously and individually decided to shoot at the FBI agents; the mere fact that they were pursuing a common objective would not have been enough to sustain a conspiracy conviction. “[C]oncurrence of acts is only evidence of conspiracy, not equivalent to conspiracy.” (Glanville Williams, quoted in K&S, p. 801.)
B. Aiding and abetting: As is discussed infra, p. 213, under the rules of accomplice liability a person may become liable for the substantive crimes of another merely by furnishing assistance to that other person. Does accomplice liability extend to the substantive crime of conspiracy, so that one who “aids and abets” a conspiracy is guilty of conspiracy, despite the fact that he has not reached even a tacit agreement with the conspirators to help them?
1. Illustration: The question is illustrated by a well-known murder case, State ex rel. Attorney General v. Tally, 15 So. 722 (Ala. 1894). D, a judge, knew that A and B planned to kill X. D, without making any agreement with A and B, prevented a telegram of warning from reaching X; X therefore did not flee, and A and B killed him. D was convicted of aiding and abetting the murder of X, and was therefore held liable of the substantive crime of murder under accomplice liability principles. Our present question becomes: is D also guilty of conspiracy to murder X, even though there was no agreement between him and A and B? Courts are split on this question.