Opinion by
Woodside, J.,Concurring in Part and Dissenting in Part:
I concur with the majority in the discharge of McNeill, the arrest of judgment on the one count against Torrance, the sustaining of the indictments and the refusal to arrest the judgments in the cases of Evans, Stickler and Landsidle.
I dissent in that I would arrest the judgment on the other charges against Torrance, and I would grant a new trial to Evans on all indictments, and to Stickler and Landsidle on the conspiracy indictment.
Arrest of Judgment
When the net is cast widely, as in a grand jury in vestigation, it is likely to envelop some who do not deserve the fate. Of the nine persons indicted in this case, the trial jury acquitted four and convicted five. We are discharging one of the five. In my opinion, another of the appellants should be discharged because the evidence against him is insufficient to support the charges. In a trial as long and as involved as this one, it is difficult to keep each phase of the case in proper perspective.
Acknowledging the dangers of an oversimplification by condensing over 5000 pages of testimony into a half dozen pages, I shall attempt to get to the heart of the offenses for which the appellants have been sentenced, and to examine the connection of one of them with the *270wrong done the Commonwealth. In doing so, we uncover an injustice which should be corrected.
Examining the evidence in the light most favorable to the Commonwealth, we find that on February 28, 1955, the Pennsylvania Turnpike. Commission entered into a contract with Manu-Mine Research and Development Company.
Stickler, Landsidle, T. J. Evans and Torrance stand convicted of conspiracy to cheat and defraud the Commonwealth through this contract.- The evidence establishes that Stickler (a nephew of Mrs. T. J. Evans) as president and Landsidle as general manager of ManuMine obtained this contract through false pretense, and cheated and defrauded the commission by virtue of it. They, along with Richard Evans, now deceased, son of defendant T. J. Evans, shared handsomely in the approximate $4,000,000 profit which Manu-Mine made from the contract.
All five members of the commission voted to approve the contract. In retrospect, it seems as though all of them should have recognized that such action was contrary to the best interests of the commission. It must be said in their defense, however, that the contract was recommended to them by the commission engineers, the consulting engineers, the commission counsel and other commission officers and employees who had negotiated, prepared or examined the contract.and were familiar with the work to be done. Public officials must frequently rely upon their deputies and assistants. They cannot be held criminally responsible for the negligent or criminal acts of their deputies and assistants under circumstances such as this.
Of the five commissioners, Evans and Torrance alone were indicted, tried and convicted. Evans was chairman of the commission, and member with longest service, and, according to the Commonwealth’s contention, the dominating influence on the commission. His *271relationship with Manu-Mine is apparent. Torrance had no connection, directly or indirectly, with the company.
To prove a criminal conspiracy the evidence must rise above mere suspicion or possibility of guilty collusion. Commonwealth v. Burdell, 380 Pa. 43, 49, 110 A. 2d 193 (1955).
A conspiracy involves an agreement. Commonwealth v. Rosen, 141 Pa. Superior Ct. 272, 279, 14 A. 2d 833 (1940). See Act of June 24, 1939, P. L. 872, §302, 18 PS §4302. The agreement need not be formed by express words, but may be inferred from concerted action. Commonwealth v. Antico, 146 Pa. Superior Ct. 293, 22 A. 2d 204 (1941); Commonwealth v. Horvath, 187 Pa. Superior Ct. 206, 144 A. 2d 489 (1958).
The indictment charges that the defendants “agreed among themselves to cheat and defraud . . .” Was Torrance a party to this agreement? There is no direct evidence that he was. Only by inferring it from the circumstances can we find that he was a party to it. Guilt must be proved, not conjectured. There must be a reasonable inference of guilt based on facts and conditions proved. A conviction can not rest solely on suspicion or surmise. Commonwealth v. Bausewine, 354 Pa. 35, 41, 46 A. 2d 491 (1946).
What are the circumstances to which the Commonwealth and the majority of this Court point as establishing that Torrance was a part of this unlawful agreement to defraud the Commonwealth?
First, he “attended the January 1955 meeting at the Hotel Sterling in Wilkes-Barre.” Evans, Torrance, Paul, Cleaves, and other officers and employes of the Turnpike were in Wilkes-Barre to examine the location of the Wyoming Interchange. The trip was publicized and newspaper men were present. It became relevant to this case only because while at the Sterling Hotel, Evans berated Cleaves for giving the newspapers a story that Manu-Mine would get a contract for slush*272ing, and told Cleaves that he was supposed to see that “Manu-Mine didn’t get into any problems like this.” The conversation was evidence against Evans, but not against Torrance who was not involved in it and had no connection with it. There is nothing in the testimony from which it can be inferred that. Torrance was in any way associated with anything improper in Wilkes-Barre.
Second, Torrance voted to approve the contract; but so did the other commissioners, whom the Commonwealth did not charge with any misconduct and who.the Commonwealth admits were misled. If . this was evidence that Torrance was a party to the conspiracy, it was evidence that all the other commissioners were parties to the conspiracy, yet no person contends that they all were.
Third, they conclude that at the commission meeting of February 28, 1955, Torrance “urged” the adoption of. the Manu-Mine contract, and said that ManuMine had an international reputation. Whether ManuMine had an international reputation or not is a collateral issue not worthy of mention here, except to note that it becomes a serious matter if the extent of ManuMine’s reputation is to be the basis upon which a 70 year old public official with prior excellent reputation is to be imprisoned. But what did Torrance say about this contract? Secretary of Highways Lawler, explaining his vote for the contract, testified what “they” said; at the meeting of February 28, 1955, but never specified a single statement as having been made by Torrance.1
*273Present at tbe meeting were five commissioners, staff engineers, consulting engineers, commission counsel and others. Lawler’s testimony was: “Q. Did other members talk to you about this contract? A. No sir.” It cannot be inferred from Lawler’s testimony that Torrance “urged” the adoption of the contract, and it is upon Lawler’s testimony alone that the Commonwealth relies to establish that he did.
*274But suppose Torrance did urge the adoption of the contract. The investigating grand jury, or the trial jury, or this Court concluded that numerous people, including at least three of the commissioners, and five employes, among them engineers and a lawyer, made honest mistakes and were misled into approving the contract. There is every reason to conclude that Torrance, too, was misled. An official act of a public official is presumed to have been performed in accordance with the law and in good faith and with the proper motive. Matson v. Margiotti, 371 Pa. 188, 88 A. 2d 892 (1952); Commonwealth v. McSorley, 189 Pa. Superior Ct. 223, 150 A. 2d 570 (1959). How can an act itself presumed to have been done in good faith, be the basis of an inference that it was done with corrupt motive?
This brings us to the only evidence which, at first blush, throws suspicion upon Torrance. He accepted a gift from Stickler, and accepted work on his farm by Manu-Mine for which he did not pay. This conduct demands careful scrutiny.
On December 21, 1954, Torrance received from Stickler a gift certificate which he used on May 5, 1955, along with some of his own money to purchase a suit of clothes. The Commonwealth argues that from this it is to be inferred that he was a co-conspirator with Stickler, Landsidle and Evans in defrauding the commission of millions of dollars. Of course, he is not guilty if he did not conspire, whether the acceptance of the gift certificate for Christmas was ethical or not.
If the facts are consistent with the defendant’s innocence, and can reasonably be explained on a theory other than that of guilt, the Commonwealth has not overcome the presumption of the defendant’s innocence. Commonwealth v. Bausewine, supra, 354 Pa. 35, 40, 46 A. 2d 491 (1946).
It is evident, if one stops to think about it, that the logical inference to be drawn from Torrance’s use of *275the gift certificate is that lie was not involved in the conspiracy. If he was a party to. a conspiracy, to defraud the-commission of. millions of dollars, would he have accepted a suit of clothes as his share of the spoils of the conspiracy? If he was even suspicious that a conspiracy existed or that a fraud was contemplated, would he, in the light of his age, reputation and experience, have permitted the finger of suspicion to he pointed to him for the sake of a suit of clothes? The only reasonable inference, which can be drawn from his acceptance of the gift certificate is that he -knew nothing of the conspiracy and the fraud. It would be illogical to infer from his use of the certificate that he was a party to a conspiracy to defraud the commission of millions of dollars.2
Innocent acts create suspicion, when one becomes involved with unsuspected conspirators. Torrance is a farmer. He built a trench silo in an old quarry on his farm at a cost of approximately $500. While attending the Farm Show, he was discussing this with Stickler who had an exhibit at the show. Stickler asked Torrance to permit him to insert in the silo, then already built and ready for use, a type of wall which Manu-Mine hoped to market for silos. Torrance agreed, and Manu-Mine inserted the wall. Torrance invited photographers and newspaper men to his farm to see the work which had been done by Manu-Mine. They took pictures of the silo, and described the new wall naming Manu-Mine as the builder. These pictures and news articles were published in national farm journals, newspapers and magazines. It cannot reasonably be inferred from this that Torrance agreed with Stickler to defraud the commission. If the work that ManuMine performed on Torrance’s farm was related to the *276conspiracy, Torrance would not have called in the press to publicize his connection with a company whose officers were conspiring to defraud the commission of millions of' dollars. Instead of being evidence of his complicity in the conspiracy, it is evident,that he was not a party to it. If he had any suspicion that a conspiracy existed involving Manu-Mine, or that its officers were defrauding the commission, he would not have permitted its employes to work on his farm, let alone advertise the fact in national publications that they were there doing work on his property.
’ Torrance did not know that Richard Evans was an officer in Manu-Mine and held stock in the company. The Manu-Mine contract was recommended by the commission’s engineers, and the consulting engineers. It was approved by the commission’s lawyer. Payments under it. were approved by the commission’s comptroller. Commission inspectors approved the work. Ten months after the February 28, 1955 contract was made, 14 different people were approving payments up to $900,000 each. under the contract. Of these Torrance alone has been indicted, convicted and sentenced. What possible ground can there be to conclude that Torrance was guilty of criminal conduct thereby, while the other 13 were not? The engineers, the inspectors, the lawyers, the comptrollers, the accountants, the new chairman who visited the scene of the work, the Secretary of Highways who had a full time liaison employe at the commission office and a staff of engineers, lawyers and investigators at his command — for 10 months, none of them suspected a conspiracy or a fraud, or if any did, he said nothing about it. Because Torrance did nothing, is it to he inferred that he, out of all these, is alone criminally responsible for the fraud? The commission continued to operate under the contract, without any of the commissioners discovering the fraud for almost a year. If the fraud was so well designed that it mis*277led the professional men who dealt with it, and on whom the commissioners relied, may we not infer it misled Torrance? It misled the businessmen on the commission. There is no justification in assuming that it did not mislead Torrance, also. All the evidence indicates that he knew nothing of the conspiracy, and had no connection with the fraud. It seems, of course, as we look at it today, that the commissioners and many of their employes should have been suspicious of the contract and should have detected the fraud sooner, but that is a fault of all the commissioners, and many of their employes, but not a criminal act of Torrance.
The majority has arrested the judgment of sentence, I think properly, on one of the indictments against Torrance. In my opinion the judgments of sentence against Torrance in the other two indictments should also be arrested.
If we look further, however, we shall find that the injustice to Torrance did not stop with his conviction, but was carried into his sentences. Even those who may disagree as to his innocence on these charges, must agree that any part which he could have had in the conspiracy and fraud had to be far less active and far less rewarding than that of the other three who stand convicted of conspiracy. Torrance received a sentence of 2 to 4 years in jail; Landsidle received a sentence 1 year 10 months to 3 years 11 months; Evans received a flat sentence of 2 years and a consecutive sentence of 1 to 2 years, and Stickler received a flat sentence of 5 years. The Board of Parole can release Landsidle after 1 year and 10 months, Evans after 1 year and 1 day and Stickler after 1 day, but Torrance cannot be released from prison until after he has served 2 years. Thus Torrance faces the longest minimum sentence of any. The courts and the law look upon the maximum as “the” sentence, but those who serve them always look *278upon the time which the court says they must serve as “the” sentence.
There were a score or more of people who through culpability, negligence, or mistaken judgment permitted the fraud to be perpetrated. Under no possible view of the case could Torrance be classified as the most culpable or even the most negligent, but he will be the last of all of them permitted to seek a parole unless the Board of Pardons or the appellate courts decide otherwise.
I think the evidence was insufficient to sustain the conviction of Torrance, and I would discharge him.
New Trial.
We all agree that it was error to have witnesses read statutes of the Commonwealth to the jury.3 The majority excuses the error on the ground it was not prejudicial. Ordinarily, it would not be prejudicial for a witness to read to the jury a statute, which the trial judge might properly read to it in his charge. But, the law relating to the Highway Department which was read to the jury by a witness in this case differs from the law relating to the Turnpike Commission which was applicable to the procedure here in question. I agree, therefore, with Judge Watkins that it was not only glaring error to have the statute read by a witness but that doing so must have misled and confused the jury and was prejudicial to those defendants who were former Turnpike Commissioners or officers.
Furthermore, I agree with what Judge Watkins said concerning the testimony which Paul gave before the grand jury. We all agree that Paul’s grand jury testimony was not admissible against any of the appellants. The question here is whether the jury used this *279testimony to the prejudice of the appellants. We start with the presumption that it did not, because the trial judge told it not to. But, as I see it, this is a presumption which circumstances can rebut, and the use of this testimony throughout the proceedings by both the trial court and the Commonwealth, overcomes the presumption that the jury did not use it against the appellants.
Upon the acquittal of Paul this testimony was completely out of the case. It should not thereafter have been mentioned by court or counsel except to determine whether it sufficiently prejudiced the case of the other defendants to warrant granting them a new trial.
To emphasize how impossible it was for the jury to follow the court’s instruction not to use this testimony, we need only note that the court itself in its opinion used over 700 words to review Paul’s testimony while stating the facts upon which it relied to sustain the conviction of the appellants. Even in the argument before this Court, the district attorney made extensive use of Paul’s grand jury testimony to support the conviction of- the appellants, particularly Evans. If the judge and the district attorney continue to use Paul’s testimony to determine and argue the guilt of the appellants, it is conclusive proof to me that Paul’s testimony could not possibly have been ignored by the jury in passing upon the appellants’ guilt.
The evil of the use of this testimony against the appellants is that (1) they had no opportunity to cross-examine their accuser; (2) they had no opportunity to contradict in rebuttal what was said about them; (3) they had no opportunity to object to and prevent the use of hearsay and other incompetent testimony given by Paul to the grand jury. The unfairness of this is so glaring and so basic that it requires the granting of a new trial. At a new trial, Paul could be called as a Commonwealth witness and could testify to the facts contained in his testimony before the grand jury so far *280as they are relevant to the appellants’ cases. The defendants would then have the right to cross-examine him and to rebut any untruthful testimony and to have the trial judge limit the testimony to that which is competent. This would give the appellants the fair trial to which they are entitled, and enable the Commonwealth to obtain the conviction of those whom the evidence would show to be guilty.
As I view it, Paul’s testimony and the reading of the statutes prejudiced Evans to a much greater degree than it prejudiced Stickler and Landsidle. The statute misled the jury as to the duties of the Turnpike Commission of which Evans was Chairman. Paul’s testimony was directly concerned with excusing any misconduct on his part by placing the blame on Evans. I would, therefore, grant Evans a new trial on all charges, and Stickler and Landsidle a new trial on the conspiracy indictment.
This was Ms testimony: “Q. At that meeting that you have just discussed as taking place on February 28, 1955, was there any discussion of a contract between the Pennsylvania Turnpike Commission and Manu-Mine Research, and Development Company? A. There was. Q. Will you tell us who discussed the contract, what it consisted of, that is, the discussion? A. First they took up the importance of approving this contract because they were faced with *273the completion of the construction of the Northeastern Extension as far as the payment of interest on bonds was concerned. Q. Who was discussing it? A. The various members of the Commission: Mr. Torrance or Mr. Evans and others. Q. What happened, if anything? A. They said we were faced with paying interest; unless we could get the job completed. Therefore, it was to 'the best interest of the Commission that we would approve this contract. Q. Was anything done about it? A. Yes — well, before the motion was made to approve the contract, it was pointed out to me, as a member of that Commission, that the Manu-Mine Corporation has an international reputation, it was an outstanding firm; they impressed upon me that it was the only firm in existence at this time that was qualified to do that type of work. Mr. Burch: If the Court pleases, I ask that that answer be stricken on the basis that he was referring to people as ‘they’ without identifying who said what throughout this answer. Mr. Dowling: The next question is: Who made the statement? The Court: Unless the identity of ‘they’ is established we will have to sustain the objection, I understand the District Attorney to say that he proposes to establish the identity of ‘they’ by his next question. By Mr. Dowling: Q. Who made the statement that you have referred to? A. I would say Mr. Torrance, Mr. Evans, the chief construction engineer, Mr. Paul. Q. What was done pursuant to that discussion; what happened after this discussion, if anything? A. Well, after the discussion took place, it was moved by Mr. MeSorley, and I don’t know who seconded the motion that the contract be approved.” (Emphasis ours) Furthermore, in cross-examination Dawler was asked “Who do you specifically remember participating in the discussion” to which he failed to answer responsively and the Court admonished “we direct- you -to answer the question as to who participated in the discussion — that is the heart of- the question — if -you remember.” Lawler answered “I don’t remember too much of a discussion.”
One of the .engineers who was acquitted received a television set as a Christmas .present from Stickler in 1954.
Even the Commonwealth, does not cite a single authority to support this action.