(dissenting) I agree with, the majority that the judgments against all of the defendants on both indictments should be set aside.
The Commonwealth’s case has, however, several grave infirmities which, I submit, merit more detailed discussion than has been given to them by the majority. I propose to discuss them at length, and do so in the hope that I may be able to make clear the reasons for my firm belief that the substantive indictment, charging the crime of requesting bribes, is invalid, and that any conviction obtained under it should not be permitted to stand.
In this dissent, I shall purposely avoid the use of the words “solicit” or “solicitation.” I think the majority should do the same. Neither word appears in the statute which defines the crime (G. L. c. 268, § 8) or in the indictment. Since both words connote, to some extent, the idea of practice, or canvassing, or repeated requests (see Webster’s New International Dictionary Second Edition; Webster’s Third New International Dictionary) the use of them tends to becloud the issue and to beg the question before the court.1
1. I shall first discuss the holding of the majority that “The motions to quash [the substantive indictment] were properly denied.” The defendants contend that the substantive indictment is invalid because it charges a crime unknown to the law. In the light of long established and unbroken precedent, founded on fairness and reason, this contention appears to me to be incontrovertible. No one denies that the indictment, the body of which is set out in the footnote,2 charges, in terms, a continuing offence. It *56so charges in the sense dealt with in Commonwealth v. Fuller, 163 Mass. 499, where, as here, (1) a single act constituted the offence defined in the statute and where, as here, (2) repetitions of the same act within a stated period of time were alleged in the indictment to constitute a continuing offence. It therefore seems quite beside the point for the majority to cite and distinguish cases where the continuing offence, as such, was expressly established by statute.3 There is, of course, no statute in our Commonwealth which defines a request for a bribe, or a series of requests for a bribe, as a continuing offence. Further, the majority do not cite and, I venture to say with confidence, are unable to cite a single case in this Commonwealth or elsewhere, holding that a request, or a series of requests, for a bribe is a continuing offence. This is a significant fact, particularly with respect to a crime which has been frequently before the courts. It means to me not merely that no appellate court anywhere has ever recognized the proposition which the majority now establish, but it also implies that no trial court has ever favorably entertained the proposition and, indeed, that no prosecutor, except for the present case, has ever ventured to offer the proposition for consideration.
The reason for the total lack of precedent, it seems to me, is plain. It is found in our own decisions. Any one of the several acts set out in the bribery statute is a violation of the statute and constitutes a crime. Commonwealth v. Albert, 310 Mass. 811, 818, 820. Commonwealth v. Mannos, *57311 Mass. 94,113. Commonwealth v. Bracy, 313 Mass. 121, 123. Commonwealth v. Beal, 314 Mass. 210, 224. See Commonwealth v. Murray, 135 Mass. 530, 532. A request for a bribe is one of the several acts set out in the indictment. G. L. c. 268, § 8. The crime is complete when the request is made. Commonwealth v. Albert, 310 Mass. 811, 818. It is thereupon punishable. Nothing further needs to be proved. If there is more than one request for a bribe each additional request is a separate and distinct crime, which must be the subject of a separate indictment or which may be the subject of a separate count in one indictment under G. L. c. 277, § 46. That this is, and always has been, the law in this Commonwealth seems crystal clear in the opinion of Chief Justice W. A. Field in Commonwealth v. Fuller, 163 Mass. 499, referred to in the majority opinion. In the Fuller case, as here, there was an indictment in one count. The indictment there charged that the defendant at divers times and days between two specified dates committed a succession of similar offences, specifically adultery, with one named woman. The court quashed the indictment because it did “not set forth any offence known to the law in any legal or sufficient manner” and because it was “bad for duplicity in charging more than one offence in the same count.” The court said further, “Adultery is not a continuing offence. Each act of adultery constitutes a separate offence.”
The Fuller case did not, I submit, introduce any new principle into our law, but rather was declaratory of what always had been the law in this Commonwealth. The court simply applied the existing law, and quashed an indictment which was plainly not in conformity with it. Commonwealth v. Adams, 1 Gray, 481, 483.
I am unable to distinguish, in principle, law or logic, the indictment in the case before us from the indictment which was condemned in the Fuller case. I find it difficult to understand how a crime which has been completed (the crime of requesting a bribe is complete when the request is made, Commonwealth v. Albert, 310 Mass. 811, 818) can be said to *58continue. So far as I am aware, the rule of the Fuller case, requiring a separate indictment or count for each offence, has been uniformly followed in practice in all criminal cases, including bribery cases, in this Commonwealth. As to bribery cases, see Commonwealth v. Connolly, 308 Mass. 481, 483, Commonwealth v. Galvin, 310 Mass. 733, 735, Commonwealth v. Hayes, 311 Mass. 21, 22, Commonwealth v. Barker, 311 Mass. 83, 84, Commonwealth v. Mannos, 311 Mass. 94, 95-96. As to larceny cases, for example, see, notably, Commonwealth v. Greenberg, 339 Mass. 557, 561-562 (twenty-two indictments, embracing a total of two hundred sixty-nine counts); Commonwealth v. Ries, 337 Mass. 565, 567-568 (fourteen indictments); Commonwealth v. Iannello, 344 Mass. 723, 724 (fifteen indictments). The applicability of the Fuller case to criminal cases like the one before us was implicitly confirmed in Dolan v. Commonwealth, 304 Mass. 325, 340.
The majority, in upholding the indictment which charges a continuing offence in requesting a bribe, rely upon the analogy of larceny by false pretence. I respectfully suggest that the analogy fails. As earlier stated in this dissent, the crime of requesting a bribe, here charged, is committed and complete when the request is made. In larceny by false pretence, however, the false pretence is but one ingredient of the crime. The crime of larceny by false pre-tence is not committed unless and until the owner parts with goods or money in reliance upon the false pretence. Thus it is often, and quite correctly, said in such cases that the false pretence continues to be operative so long as the victim, in reliance upon it, parts with the goods or money. This, I submit, is the proper and limited use of the term “continuing offence”4 in Commonwealth v. Lee, 149 Mass. 179, 184, and in People v. Bailey, 55 Cal. 2d 514, both cited *59by the majority. A request for a bribe which in itself is a complete crime cannot, in my judgment, be equated with a false pretence which is only an element of the crime of larceny by false pretence.
The majority seem to rely upon five larceny cases from foreign jurisdictions to sustain their holding. In the first place, we are not here dealing with larceny. In the second place, despite the fact that there has been a myriad of larceny cases considered and reported by this court since 1804, not one of them provides a basis for the extremely tenuous analogy which the majority feel able to draw from the foreign cases. On the contrary, the larceny cases cited above in this dissent, of which Commonwealth v. Greenberg, 339 Mass. 557, is the most striking example, refute the proposition which the majority establish.
The generalizations which are interspersed among the citations in that part of the majority opinion which upholds the indictment seem to me to have no relevance whatever to the crimes defined in G. L. c. 268, § 8. For example, the opinion states, “Solicitation of a bribe may take the form of protracted negotiations. An offer to give or accept a bribe, while it is outstanding, has a continuing effect.” The statute (G. L. c. 268, § 8) is not concerned with these matters. It does not tolerate negotiations or outstanding offers. It unequivocally denounces each and every request for a bribe by a public official as a crime, and declares each and every such request punishable.
The opinion, on the point now under consideration, concludes with the words, “It is inconsequential that separate . . . [requests] could, as is well established, be charged as separate offences” (emphasis supplied). As earlier noted, there is no support whatever in our decisions or in our statutes for this assertion. On the contrary, it is completely irreconcilable with Commonwealth v. Fuller, 163 Mass. 499, which requires a separate charge for each act which constitutes an offence. This bald assertion by the majority, although stated with finality, leaves to the profession a legacy of unanswered and troublesome questions. *60It should not go unchallenged. For example, one is left to wonder if Commonwealth v. Fuller is still the law of the Commonwealth, and, if it is not, what the law now is. One is left to wonder if the Commonwealth’s prosecutors are now free to put persons to trial for offences hitherto unknown to the law, based on indictments heretofore expressly condemned, and to leave it to this court, on an ad hoc basis, to determine, after conviction, whether the proceedings were properly brought. One is left to wonder what has become of “the rule requiring certainty in criminal pleading” in the Commonwealth v. Lummus, J., in Commonwealth v. Dowe, 315 Mass. 217, 220, and cases cited. One thing at least is clear. By upholding the substantive indictment the court this day sua sponte has created a new crime. “No precedent and no authority has been shown for such a prosecution, and no such prosecution has been attempted within the knowledge of the Court, although a similar law has been in force almost from the foundation of the government .... That such a prosecution is unprecedented, shows very strongly what has been understood to be the law upon this subject.” Shaw, C.J., Commonwealth v. Willard, 22 Pick. 476, 477-478.
2. The infirmities in the Commonwealth’s case are further aggravated and compounded by other factors. Among these factors are: (1) the allegation in the indictment that each of the three defendants is a principal in the commission of the alleged continuing offence of requesting bribes; (2) the fact that only Stasiun is capable of committing the crime as defined in the statute, G. L. c. 268, § 8; (3) the fact that, in the absence of certain evidence, later to be considered (see point 3, post), only Stasiun, of the three defendants, can be convicted as a principal in the commission of the defined offence; (4) the fact that the substantive indictment charging a continuing offence was tried with the conspiracy indictment, which, by definition, is also a continuing offence.
Consideration of these factors will, I believe, (a) demonstrate that on the evidence neither Manning nor Bymszewicz *61can be convicted as a principal and they therefore are entitled to judgments in their favor; (b) show that the substantive crime has not been proved as charged; (c) show that the opinion is self-contradictory, and (d) disclose additional reasons why the substantive indictment should be quashed.
The body of the conspiracy indictment is set out in the footnote.8 This should be read and compared with the substantive indictment set out in a previous footnote to this dissent.6 It will be noted that both indictments charge a continuing offence, and that both are, in every material respect, the same. The only differences are that the conspiracy indictment has the words “did conspire together,” whereas the substantive indictment does not; and that the substantive indictment has the words “and as part of the same transaction,” whereas the conspiracy indictment does not.7
This stratagem of pleading, whether artful or artless, whereby the two indictments coincide in all material respects, enabled the prosecution to apply evidence, which was admissible only on the conspiracy indictment, to the substantive indictment with the result that convictions were obtained which are, as I shall later try to show, utterly unsupportable under G. L. c. 268, § 8, which alone defines the substantive offence.
Meanwhile the majority reaffirm the accepted rule that *62“the fundamental distinction between a substantive offence and a conspiracy to commit that offence” should not be ignored, and that each “is a separate and distinct offence and each may be separately punished.” Among other distinctions recognized in this Commonwealth is that a conspiracy to commit a crime is a misdemeanor, Commonwealth v. Pel-letier, 264 Mass. 221, 227, Commonwealth v. McKnight, 289 Mass. 530, 537, and that all who participate in it are principals. Commonwealth v. Drew, 3 Cush. 279, 284.
In emphasizing the importance of the fundamental distinction between conspiracy and the substantive offence, the majority refer to certain elementary principles which must be observed, in order to avoid injustice, when a conspiracy indictment is tried with one or more substantive indictments. With the statement of principles I am in emphatic accord: ‘ ‘ Our criminal law is founded on the principle that guilt, for the more serious offences, is personal, not vicarious. One is punished for his own blameworthy conduct, not that of others. ... To ignore the distinction between the crime of conspiracy and the substantive offence would enable ‘the government through the use of the conspiracy dragnet to convict a conspirator of every substantive offense committed by any other member of the group even though he had. no part in it or even Jcnowledge of it’ ” (emphasis supplied). I respectfully suggest that the majority have failed to apply here the salutary rule which they state. I further suggest that the application of the salutary rule to the case before us would require, on the evidence, that judgments on the substantive indictment be entered in favor of Manning and Rymszewicz. With the rule in mind let us examine the evidence as to each of the three defendants.
(a) The evidence recounted in the opinion shows that Manning made but one request of Vermette, on January 27, 1959. There is not a shred of evidence that Rymszewicz ever knew of this request, (b) The opinion states that four or five months later (in late May or early June) Rym-szewicz made a single request of Vermette. There is not a scintilla of evidence that Manning ever knew of this re*63quest, (c) The opinion states that Stasiun himself made one direct request of Yermette in February, 1959. There is no evidence whatever that either Manning or Rymszewicz ever knew of this request, (d) The opinion states that Stasiun also made a direct request of Yermette in July, 1959, when the approval of the lease was no longer pending before the Council. There is no suggestion whatever that Manning or Rymszewicz knew of this request.
It is, of course, readily inferable that Stasiun knew of all of the requests, but surely, on any reasonable application of the rule of fundamental fairness stated by the majority, with which I completely agree, Stasiun’s knowledge of Manning’s request in January cannot be imputed to Rymsze-wicz, nor can Stasiun’s knowledge of Rymszewicz’s request in May or June be imputed to Manning. Nor can Stasiun’s own requests, on the evidence before us, be imputed to either Manning or Rymszewicz. In the light most favorable to the Commonwealth the evidence shows no continuing offence, but rather, a succession of distinct acts by Stasiun. The first was by Stasiun using Manning as his agent. The second was by Stasiun acting for himself. The third was by Stasiun using Rymszewicz as his agent. The fourth was by Stasiun alone.8
As to the substantive crime, one is not chargeable as a principal, under the law or elementary principles of fairness, with the acts done by others in which he took no part and of which he had no knowledge. See Commonwealth v. Greenberg, 339 Mass. 557, 575-577; Commonwealth v. Kier-nan, 348 Mass. 29, 49-50. Thus, even if one assumes, argu-endo, that the indictment charging a continuing offence is valid, the charge of a continuing offence has not been proved. In similar situations, applying the familiar rule that “ [t]he offence must not only be proved as. charged, but it must be charged as proved,” this court has set aside the convictions. Commonwealth v. Albert, 307 Mass. 239, 244, and *64cases cited. That result should follow here. The most that the evidence shows is a single request by Manning and a single request by Rymszewicz. Even in cases where there is a statute which defines an offence as a continuing one, guilt cannot be based upon evidence of a single act. Patnoude v. New York, N. H. & H. R.R. 180 Mass. 119, 120. Commonwealth v. Hayes, 150 Mass. 506, 507-508. Commonwealth v. Slavski, 245 Mass. 405, 418. On this independent ground the convictions of Manning and Rymszewicz, in my judgment, cannot stand.
I hope, however, that the foregoing analysis of the evidence demonstrates not only the wisdom and fairness, but, as well, the practical necessity, of adhering to the rule of Commonwealth v. Fuller, which requires that there be a separate charge for each act which constitutes an offence. The amorphous catchall indictment here presented by the Attorney General, and now approved by the majority, illustrates the difficulties which follow a departure from that rule. Almost inevitably, at the trial, the evidence to support the conspiracy indictment will be, as it was here, superimposed upon, and applied to, the substantive indictment which is almost identical in its terms. But that is not the only evil. The substantive indictment itself, alleging as it does a continuing offence in the same terms as the conspiracy indictment, has enabled the prosecution to use it independently as a dragnet to convict a defendant of every substantive offence committed by any other member of the group even though he had no part in it or even knowledge of it. See United States v. Sall, 116 F. 2d. 745, 748 (3d Cir.), cited by the majority.
It seems to me, therefore, that the opinion of the majority is self-contradictory. On the one hand, it criticizes “the use of the conspiracy dragnet to convict a conspirator of every substantive offence committed by any other member of the group even though he had no part in it or even knowledge of it. ’ ’ On the other hand, it condones a super dragnet (the substantive indictment charging a continuing offence) which accomplishes the same unjust result by the same improper and unfair use of evidence.
*65It would seem that a type of pleading which thus fosters confusion and opens the door to injustice has no place in our law. An indictment which on its face virtually requires inadmissible evidence to support it should be quashed. Accordingly, in my opinion, to insure a fair and orderly trial, to reduce confusion in the minds of the jury, and to minimize judicial error, a trial judge has the duty to insist that the prosecution adhere to the time-tested and trial-tested rules of pleading.
3. The final major point of difference with the majority centers on the holding in Commonwealth v. Mannos, 311 Mass. 94. The majority appear to say that, under the authority of the Mannos case, the evidence in the case before us warrants the conviction of Manning and Rymszewicz as principals in the crime of requesting a bribe. I cannot subscribe to that view.
To determine just what the court decided in the Mannos case requires an understanding of what the charges were and, equally important, what evidence was adduced to support the charges. Mannos, a private citizen, was charged as a principal jointly with Lyons, a public officer, in four indictments, each with several counts, with requesting and accepting bribes from architects and engineers employed by the city of Cambridge, all in violation of G. L. c. 268, § 8 (pp. 95-96, 107). Since the indictments were in the conjunctive, the Commonwealth could support them by proof of either the requests for, or the acceptance of, the bribes (pp. 112-113). The proof centered on the acceptance of the bribes. “Proof of the receipt of the bribes was sufficient to constitute the crime charged. The acceptance of each bribe constituted a separate offence” (p. 113). Convictions were had on all four indictments. The evidence showed that, before Lyons had approved any of the contracts, three architects, including one Greco, had each made a corrupt bargain with Mannos (p. 112) who, the jury could find, was acting as the agent of Lyons (p. 108). Although Mannos “had inaugurated and was active in carrying out the program which resulted in . . . [the] payments by *66Greco to Lyons,” he “was not present when payments were made to Lyons by Greco.” This evidence, the court held, “would not support an indictment charging . . . [Mannas] as a principal.” His convictions on the .counts involving Greco were reversed (p. 110). On the other hand, Man-nos’s conviction as a principal was upheld on the indictments involving the other architects because “in arranging for the payment of bribes from the architects and engineers, in making the collections from them, and in turning what was collected over to Lyons, Mannos personally participated in every essential step and must be considered as a principal” (emphasis supplied) (pp. 109-110).
In the Mannos case the court was dealing, as we are here, “with a statute [G. L. c. 268, § 8] that expressly prohibits public officers from requesting or accepting bribes” (p. 108) and with an indictment charging both the public officer and the private citizen as principals. In criminal law, “one who aids and assists another person to commit an offence which only such other person can commit may be equally guilty with the latter as a principal or as an accessory before the fact, depending upon the evidence showing his relation to the actual commission of the crime. ... In this Commonwealth, the distinction between guilt as a principal and guilt as an accessory.before the fact has always been recognized” (citing authorities) (emphasis supplied) (p. 109). As distinguished from an accessory before the fact, a principal is “one who is present at the commission of a felony and is aiding and assisting the one who is actually committing the offence ... .” (emphasis supplied) (p. 109).
Having the foregoing in mind, the true rule of the Man-nos case, as I read it, is that where a private citizen is charged jointly with a public officer as a principal with the crime of requesting or receiving bribes, the evidence must show that the private citizen was present and, participating with the principal in the act which constitutes the offence charged, namely the request for, or the acceptance of, the bribe. Such evidence as to Manning and Bymszewicz is entirely lacking in' the case before us. Stasiun was not *67present when Manning made the request in January; nor was he present when Bymszewicz made the request in May or June. Neither Manning nor Bymszewicz was present when Stasiun made his request in February, 1959, or in July, 1959.
To hold in the absence of such evidence, as do the majority, that Manning and Bymszewicz may nevertheless be convicted as principals would result in the judicial legislation of a new crime, namely, “Whoever corruptly requests or accepts a bribe on behalf of a public officer shall be punished.” The Legislature has not defined such a crime. “There being no such provision in the statute, there is a strong implication, that none such was intended.” Shaw, C.J., in Commonwealth v. Willard, 22 Pick. 476, 479. The implication is stronger in the ease before us because of other reasons. Not only is there “no such provision in the statute” here, but G. L. c. 268, § 8, defines first the class of persons at whom the statute is aimed (public officers), and then, in prescribing the penalty, provides in mandatory language in the first phrase of the penalty clause that the offender “shall forfeit his office,” thereby clearly indicating that the person punishable shall be within the defined class, namely, a public officer. Of importance also, it seems to mé, are the provisions of St. 1962, c. 779, § 1, now G. L. c. 268A, dealing in part with the same subject matter. In the latter statute the classes of persons at whom the statute is aimed are carefully defined in § 1 (definitions) and, as so defined, are specifically referred to in the substantive sections which set out the acts which constitute the respective offences. For example, G. L. c. 268A, § 2 (b), provides, “Whoever, being a state, county or municipal employee . . . [the term employee includes, among others, an elected or appointed officer, G. L. c. 268A, § 1 (d), (g), (q)] corruptly asks . . . anything of value for himself or for any other person . . .” and § 3 (b) provides, “Whoever, being a present or former state, county or municipal employee . . . asks . . . anything of substantial value for himself for . . . any official act . . . by him” (emphasis supplied). It *68appears to me therefore that the court sub silentio has created a new crime in the present case.
4. I conclude with these observations:
a. All of the troubles which attended the trial and our consideration of the case have flowed from a kind of indictment which has never been approved by this court. In the single instance when it was attempted, it was not tolerated. Commonwealth v. Fuller, 163 Mass. 499. Most of the trouble certainly would have been avoided by adherence to our simple, well established rules of criminal pleading.
b. It was error not to quash the substantive indictment since it alleged an offence unknown to the law. “No court has jurisdiction to sentence a defendant for that which is not a crime. It is the duty of . . . [this] court to consider such a point of its own motion.” Rugg, C.J., in Commonwealth v. Andler, 247 Mass. 580, 582. The defendants here have raised the question consistently. To require them to stand trial again for that which is not a crime would shock judicial conscience and result in an abuse of judicial process. See Commonwealth v. Andler, 247 Mass. 580, 582.
c. It was error to deny the motions for directed verdicts. The prosecution failed to prove, as charged, the continuing offence.
d. In any event, on the evidence, judgments should be entered for Manning and Rymszewicz on the substantive crime since (1) only one act has been proved against them, and (2) the act proved does not show that they acted as principals, as charged.
5. Inasmuch as a new trial is to be had on the conspiracy indictment, the validity of which is not questioned, no useful purpose would be served by now discussing the convictions obtained under it.
The words do appear in some of our decisions, but in these decisions there was no charge, as here, of a continuing offence. See, e.g., Commonwealth v. Mannos, 311 Mass. 94. Also, the indictment does not allege, and the Commonwealth makes no contention that it can be construed as alleging, that Manning or Bymszewiez incited, advised or solicited Vermette to commit a felony by offering a bribe to Stasiun in violation of G. L. c. 268, § 7. As to this see Commonwealth v. Flagg, 135 Mass. 545, 549, and Commonwealth v. Kaplan, 238 Mass. 250, 255.
‘ ‘ The jurors for the said Commonwealth on their oath present, That Ernest C. Stasiun, then an executive officer of the Commonwealth, to wit: a member of the executive council of the said Commonwealth, Michael J. Man*56ning and Richard B. Rymszewicz at various times between January 31, 1959, and July 31, 1959, the exact dates being to the said jurors unknown, at ISTew Bedford, in the County lof Bristol, and as part of the same transaction, at divers other places, did corruptly request gifts and gratuities and promises to make a gift from Paul R. Vermette under an agreement and with an understanding that the vote, opinion and judgment of the said Ernest 0. Stasiun would be given in a particular manner and on a particular side of a question, cause or proceeding which was or might by law be brought before him in his oficial capacity, and as a consideration for work and service in connection therewith. ’ ’
Wells v. Commonwealth, 12 Gray, 326. Commonwealth v. Peretz, 212 Mass. 253, 254. Commonwealth v. Runge, 231 Mass. 598, 600, cited by the majority.
The term “continuing offence” is, oí course, also used in larceny and kidnapping cases in reference to the carrying away or asportation of the goods or person as being a renewal or continuation of the original trespass for the purpose of conferring venue or jurisdiction in the county or State into which the goods or person has been taken. Commonwealth v. Macloon, 101 Mass. 1, 5. Commonwealth v. White, 123 Mass. 431, 433. Commonwealth v. Parker, 165 Mass. 526, 539.
‘ ‘ The jurors for the said Commonwealth on their oath present, That Ernest C. Stasiun, Michael J. Manning, and Bichard B. Bymszewicz did conspire together at New Bedford, in the County of Bristol, and divers other places at divers times between January 31, 1959, and July 31, 1959, the exact times being to the said jurors unknown, to corruptly request and to corruptly accept gifts and gratuities and promises to make a gift from Paul B. Vermette under an agreement and with an understanding that the vote, opinion and judgment of the said Ernest 0. Stasiun, then an executive officer of the Commonwealth of Massachusetts, to wit a member of the Executive Council, would be given in a particular manner and upon, a particular side of a question, cause or proceeding which was or might by law be brought before him in his official capacity.”
See footnote 2.
The conspiracy indictment also has the words 1 ‘ and to corruptly accept, ’1 which do not appear in the substantive indictment. That difference is not here relevant.
This request was in July, 1969, and was not per se an offence within the statute because at the time of the request the lease, having already been approved, was no longer pending before the Executive Council.