dissenting:
With all due respect for the action of the majority of this court, I am unable to assent to the soundness of the conclusion reached. I therefore deem it my duty to at least indicate the reasons that impel me to dissent. The judgment of the learned court below is reversed and a new trial ordered because of (a) certain portions of the charge of the trial judge declared to be harmful misstatements of the law; (b) the admission, against the objections of' the defendants, of an item of evidence, which, it is held, should have been rejected.
I am in entire harmony with the conclusion, so clearly demonstrated by the majority opinion, that there was evidence to warrant findings by the jury that the city *467was grossly defrauded and that this result followed from the manipulation, as it is called, of the contracts in question. I take it the evidence furnishes an equally clear warrant for the conclusion that this manipulation could not have happened without action by each and every one of the defendants; action it is true innocent if the result merely of negligence no matter how marked; guilty if designed and intended to secure the result actually attained. It was earnestly contended for each of the defendants, that such participation by him in the manipulation of these contracts as was shown by the evidence, was the result merely of mistake, oversight, reliance on the integrity of subordinates, or at the worst of carelessness and neglect of duty. In this respect the issue between the commonwealth and the defendants was sharply drawn.
The opening portions of the charge were devoted to an explanation of the offense of conspiracy generally. Carefully, accurately and in language not easily misunderstood, the learned judge laid before the jury the nature and essential ingredients of the crime as well as the quality and character of the evidence which must be produced to warrant a finding that the defendants or some of them had entered into a conspiracy. They were pointedly told that no man, acting alone, could be guilty of that offense no matter how criminal in other respects his acts might be. They were instructed that no amount of blundering, incompetence or neglect of duty merely, would support a verdict of guilty. In a word, in these and like aspects of the case the general instructions to the jury furnish no ground for just criticism.
The trial judge then proceeded to take up the case of each defendant separately. He drew the attention of the jury to the evidence tending to prove the acts done by that particular person and the manner in which they should be considered by the jfiry in the light of the respective contentions of the Commonwealth and *468the defendants already referred to. It was in the portions of the charge so dealing with the case of each defendant, the trial judge used the language complained of in the several assignments, [constituting group (a)], which have been sustained.. A single illustration will, as I think, indicate the reason I am not able to accept, as sound in law, the conclusion of the majority of my brethren, on this branch of the case.
In dealing with the case of the defendant, Clay, the trial judge, after placing before the jury the various considerations urged by the defense., to convince them the acts of the defendant were innocent; and then stating the contention of the commonwealth, used the language 'quoted in the majority opinion sustaining the twenty-first specification of error.
From the use of the language quoted the opinion predicates this conclusion, viz.: “Under this instruction the jury must have understood that it was their duty to find a verdict of guilty, as to Clay, if they were satisfied of the following facts, without more, viz.: that Clay had discovered, before the last money was paid upon any one of the contracts, that he had been deceived by his subordinate, the city architect; that the city was being cheated and defrauded, and that, after the discovery he, Clay, took no steps to prevent the payment of the last money upon the contract.” Why “must the jury have understood” that this was their duty? Is the conclusion as sound as its expression is forcible? Even if the utterance complained of be read in the light only of what had been just previously said respecting the defense advanced by that defendant, ignoring all that had been so clearly explained in the earlier portions of the charge, its just interpretation seems to me to be widely different from that accorded to it. It was but another way of saying that if the jury attached to the evidence referred to the significance ascribed to it by the commonwealth, the defense set up for this defendant, adverted to already and by the trial judge, *469had failed. Or that if no other barrier stood in the way of the commonwealth, except the defense that the acts of the defendant Clay, were- the result of mistake, ignorance, or negligence, and that line of defense was shattered, he might be properly convicted. But when the statement of the trial judge is reviewed, not only with its immediate context, but in the light of what he had theretofore so clearly explained, I can find no solid ground for the judgment that the jury were misled to the conclusion that the defendant Clay, if they believed him innocent down to that time, should be convicted of conspiracy merely because he had discovered that some contractor was about to .take unearned money from the city treasury and took no steps to prevent it.
Still further, the record shows that the trial judge affirmed a series of prayers. for special instructions presented by counsel for defendants. They covered almost every material phase of the case. .They again and finally directed the attention of the jury to the same considerations laid before them in the earlier portions of the charge. Adopting the language of defendant’s counsel the judge again told the jury that no defendant could be convicted unless they could find he had entered into a combination or agreement with others to cheat and defraud the city. That the receipt by some of the defendants of “excessive, even unwarranted profits,” would not support a verdict of guilty, unless there was a previous combination to bring about that result. In the light of these instructions, general and special, I am wholly unable to agree that th'e trial, judge misled the jury to the conclusion stated in the majority opinion. I would dismiss all of the assignments of error complaining of the charge to the jury.
I would also dismiss the fifty-fourth specification of error sustained by the majority opinion. John R. Wig-gens, defended largely on the ground that he signed the contracts simply as the executive officer of his firm *470without any knowledge of any manipulation of them, in ignorance that they were so duplicated as to bring to his firm large sums of the city’s money for which no service was rendered. Of course if the jury accepted that statement he had not combined or confederated with anybody and was innocent of the offense charged.
But the commonwealth, as I view it, clearly had the right to offer evidence that would tend to weaken or break down that line of defense. It was permitted to prove, that the defendant had been awarded most of the city contracts within the past two years. Why was that fact irrelevant? It at once showed this particular defendant was no novice in city contracts and was not likely to be ignorant of anything materially affecting such a large branch of his business. But it is said the evidence failed to show any taint of wrongdoing in these past and completed contracts and presumably they were lawfully awarded. I grant it. All the more likely then would the unusual and illegal features of the contracts here involved have invited the attention of the experienced contractor who was to profit so largely because of them. The evidence objected to was therefore, as I think, clearly competent and if so it is not important to discuss or consider the particular reasons urged to persuade the trial judge to receive it.
There remain the assignments of error complaining of the manner in which the court in banc disposed of the motion for a new trial. They rest on matters outside the record of the trial. They have been fully discussed in the majority opinion. As the case must be tried again I have no desire to express my own views further than to say that I think the defendants should have been permitted to have the sworn testimony of those who had made reports to the district attorney concerning the conduct of the jurors during the trial. That testimony would furnish a more satisfactory basis for action by the court below and for the review of that *471action by an appellate court than mere ex parte statements neither signed nor sworn to by any responsible person.
If I could control the disposition of this case I would hold that the record discloses no reversible trial errors; that the verdict was supported by the evidence, but that the motion for a new trial was not properly disposed of.
I would set aside the sentence; reinstate the motion for a new trial and remit the record to the court below with direction to hear the evidence which the learned district attorney felt his duty required him to suppress, and then dispose of the motion.
President Judge R,ice joins in this dissent.1
For concurring opinion in this case sec 57 Pa. Superior Ct. 128.