Dissenting Opinion by
Watkins, J.:I must respectfully dissent.
I have noted the great lengths to which Courts, and particularly appellate Courts, properly go to protect the rights of defendants, even though they be hardened, habitual criminals. It seems to me that, at least, the same concern should be exercised when the defendants happen to be men of prior sterling character who have enjoyed outstanding reputations in this Commonwealth. This should be especially true when the charges involved are grounded in politics, and by their very nature, invite the glare of publicity that tends to arouse adverse public opinion. We should always abhor trial by newspaper, radio and television.
The special Grand Jury was called upon a petition by the Attorney General of the Commonwealth, in *281which the District Attorney of Dauphin County had joined, on October 22, 1956. The purpose was to impartially investigate irregularities that were alleged to have taken place in the administration of the Pennsylvania Turnpike Commission as set forth in the petition.
We must remember that the Attorney General is the appointive officer of the Governor, serving at his pleasure, therefore subject to his supervision and control. At the very time the hearings began and immediately thereafter, the Governor of the Commonwealth made certain public statements, excerpts of which are set forth in my concurring opinion in Com. v. McSorley, 189 Pa. Superior Ct. 223, 150 A. 2d 570 (1959), at page 240, and which I repeat again in a footnote to this opinion.1 These statements by the Governor were given *282extensive and repeated coverage by tbe press, radio and television. Tbe comments made in that concurring opin*283ion concerning the prejudice, created by tbe statements of tbe Governor as to tbe defendant McSorley, apply *284with greater force to tbe defendants herein because of tbe special reference made to them by tbe Governor. *285We think it is important enough to repeat what we said in Com. v. McSorley, supra, at page 240:
“An examination of the speeches delivered by the Governor on the eve of convening the Grand Jury and the following evening disclose a disturbing interference with orderly judicial process. The speeches themselves *286indicate without any doubt the telling effect it had upon those who heard or saw the program. Excerpts from these speeches are set out in a footnote hereto. The stations carrying these programs admittedly had a wide coverage of Harrisburg and Dauphin County and were heard and viewed by large numbers of residents of the area. The statements of the Governor were quoted repeatedly by the daily press, radio and television. It would be a tenuous assumption to state that members of the investigating Grand Jury or prospective members of the indicting Grand Jury and petit jury did not hear or see these broadcasts. While the court below stated that it had no reason to believe that the Grand Jury disregarded the admonitions relative to political speeches, it can be safely said that the indicting Grand Jury or the trial jury did not have the benefit of the court’s admonition. Coming, as it did, from the Governor himself, the speeches undoubtedly had a forceful and prejudicial effect which tainted the proceedings. And while we do not ascribe any evil motive to the Governor in malting these speeches at this time, we do say that they had a judicially undesirable effect when consideration of fairness and due process are involved and when the unbiased deliberations of an investigating Grand Jury were of utmost importance.
“We believe that the irregularities referred to interfere with the substantial rights of the accused. Under the circumstances here presented, we cannot subscribe to the contention of the Commonwealth that these irregularities were cured by the action of the indicting Grand Jury because it had actual information before it, which information was placed in the presentment. Nor is it much solace to state that the use of the minutes of the Grand Jury was improper. We cannot say that it was.”
I think it is important to emphasize a question asked of the Governor by a reporter concerning his state*287ments, as follows: Q. “Governor, yonr statements at this instance, plus your film raised a question in my mind that in view of the fact that the Dauphin County Court turned over this matter to the Grand Jury yesterday. Is there any question of this case being prejudged in your mind or influencing the jurors who are considering it right now? They go home and listen to television Governor.” Even this reporter, without legal or judicial training, realized the danger created by the Governor’s statements. His prejudgment of the guilt of all the defendants could not help but permeate the entire jury proceedings and make an unbiased investigation and unbiased deliberations impossible, because of the fact that he was the Governor and the Attorney General his appointee.
Because of all the irregularities in the Grand Jury proceedings, as discussed in detail in Com. v. McSorley, supra, I say again as regards these defendants: The motion to quash the presentment should have been granted under these circumstances. Failing so to do, the indictment should have fared no better. Cf. Commonwealth v. Gross, 172 Pa. Superior Ct. 85, 92 A. 2d 251 (1952). The factors here involved make out a clear case detrimental to the substantial rights of the defendants.
The majority, in order to create a foundation for the present conviction, has outlined the beginning and development of Manu-Mine, and by this, attempts to indicate it was a favorite of the Turnpike Commission. However, this is completely irrelevant to the issue since all previous contracts were executed and the work was done by Manu-Mine in an excellent manner and for very reasonable prices. This is admitted by the Commonwealth.
The contract entered into February 28, 1955, being the sole basis for these proceedings, that is, the support for the turnpike where it crossed the coal measures, was a matter of concern to the Turnpike Commission and *288its engineers for quite some time prior to the negotiation of the above contract, as the record clearly indicates; and was not something dreamed up on the spur of the moment as is indicated by the majority opinion. The Turnpike Commission has always adhered to the rule of maximum safety on all its turnpikes or their extensions. All of the engineers who testified agree that a slushing program to fill existing voids was necessary. The turnpike engineers and consulting engineers to the Turnpike Commission desired to achieve maximum safety. The mining engineers who expressed an opinion that 90% of the program as carried out was not necessary, adhered to the theory of taking a calculated risk on future subsidence on some areas on the Northeast extension. This indicates a difference of opinion among the engineers, and the election by the Commission to adhere to a standard they have followed for a long time would not thereby make them criminally responsible. The maximum safety rule as opposed to the calculated risk rule is practically demonstrated by the recommendation of Michael Baker & Co., successor to Greiner & Co., as consulting engineers to the Turnpike Commission, that flexible pavement rather than concrete be used on sections not flushed and having a propensity for subsidence, and the present unsafe condition for high speed travel of that portion paved with macadam corroborates the decision of the Commission for maximum safety.
I have lived in the anthracite mining region all my life and have personal knowledge of the problem of subsidence and how it affects the built-up areas and highways of the region. We have become accustomed to macadam highways that remind you of roller coasters and are always alerted to the danger of subsidence potholes. This we have come to accept as concomitant to the mining industry.
*289As a member of the Senate I served on the Anthracite Subsidence Commission of 1941, whose final report dated March 15, 1943, was made a part of this record. This report summarized by the Hon. George B. Stevenson, Chairman of the Commission, made this pertinent observation: “Prom actual experimental data acquired and from the collective thinking of competent mining engineers, we have concluded that flushing is the only practical approach to the solution of this problem. By flushing is meant the re-filling and packing of waste and other materials into the voids. Evidence appears to be conclusive that subsidence will not affect the surface if those voids are flushed which lay within a range of 300 feet below the surface.”
As recently as June 19, 1959, a special report to Governor David L. Lawrence, in regard to surface subsidence at Forty-Port, Pá., prepared by a committee of mine inspectors appointed by the Secretary of Mines, stated that, “It is our opinion that subsidences such as occurred ... in Forty-Fort will continue at periodic intervals and that the only solution, to at least minimize subsidence, is a long-range flushing program.” This is in reference to the entire built-up area where mining has taken place. In our case, the Turnpike Commission was only concerned about the area over which the turnpike was constructed. We have in effect created a built-up area by constructing a pavement designed for high speed passenger and heavy vehicle travel so that the burden of support placed on the substructure is comparable to any so-called built-up area in the region. The report further said, “Practically the entire built-up section of Wyoming Valley is undermined to a greater or lesser degree . . . eventually, subsidence will occur in practically all areas where mining has occurred.”
The report referred to was submitted by Mine Inspectors Thomas M. Beaney, Andrew Wilson and Ken*290neth C. Lee, to the Honorable Joseph T. Kennedy, Secretary of Mines and Mineral Industries. Since the report was submitted to Governor Lawrence, it must be assumed that it was endorsed by the Secretary of Mines as the current official opinion of the Department of Mines, and further that such submission constituted an official approval of the contents.
This report is significant and tremendously important since Thomas M. Beaney was one of the material witnesses who testified for the Commonwealth in these cases. He testified that the work performed by ManuMine Research and Development Company in connection with drilling and flushing along the turnpike right-of-way through the Wyoming Valley was “for the most part, with the exception of two or three areas, unnecessary and particularly all of the work done over robbed-out and completely mined areas” was unnecessary. He further testified that this was unnecessary “because, after a mine has been robbed out or a section of a mine has been robbed out, it caves. The voids are filled and overburden comes to rest, and there is no need for anything additional which may help. Nothing else will certainly help it.” The same opinion was expressed and amplified by Daniel H. Connelly, Deputy Secretary of Mines, Ralph A. Lambert, Chief Engineer, Department of Mines, James H. Pierce, President of Pierce Management and Frantz Edgar Kudlich, Associate of James H. Pierce.
These witnesses testified that 95% of the work performed was unnecessary because it occurred in robbed-out areas where mining had been completely performed; and that it has been their experience, gained through practical experience in removal of pillars, that after approximately seven (7) years, equilibrium is gained again. The report of June 9, 1959 flatly refutes these opinions for it assigns as one possibility of subsidence the robbing which occurred in 1934, 25 years before the *291subsidence in Forty-Fort. If subsidence was possible in Forty-Fort after 25 years, then it is a reasonable conclusion that similar subsidences could occur under the turnpike right-of-way. So that the so-called “seven year rule” upon which the majority places reliance is theoretical, impractical rule of thumb without the benefit of scientific support.
This report clearly indicates that there is always a danger of subsidence regardless of the length of time that has elapsed after last mining or robbing. This risk could not be assumed by the Turnpike Commission because of its standard of “maximum safety.” They recommended a long range flushing program as the remedy for preventing subsidence in built-up area. Since many of the areas inspected and included in this report were inaccessible for physical examination so that inspection could only be made by an examination and review of mine maps, it necessarily must follow that they would be inaccessible for flushing purposes except by the method recommended by Manu-Mine Research and Development Company, which has been referred to as “blind-flushing”.
As a practical matter, I question the wisdom of the construction of a modern high speed turnpike over mined-out areas without using the maximum safety rule that will require flushing the voids under the area. Certainly when we contemplate the disaster that might follow the failure of surface support on such a highway, it seems to make imperative the adoption of the rule. An example that gives a vivid picture of the result of highway subsidence is defendants’ Exhibit No. 62, pages 403 to 407, of Vol. XXI, of the record. A fine example of this condition is found on State Highway Route 122, between the Borough of Ashland, Schuylkill County and the Borough of Mount Carmel, in Northumberland County, where a four-lane divided highway, despite continuous repair, has been broken up *292by mine subsidence so that permanent signs now appear on the highway warning motorists of a 25-mile speed limit because of mine subsidence. Such a situation certainly could not be tolerated on what Pennsylvania proudly calls the greatest all-weather highway in the world. So that the action of the Turnpike Commission in following the maximum safety rule,, instead of being criminal, was in fact, the exercise of wise and prudent judgment.
As to the inception of the contract in question, the record, without contradiction, indicates that all negotiations leading to the contract were conducted between Manu-Mine officials and the engineers of the Commission. (All engineers of the Commission who were indicted were acquitted by the jury). The Assistant Chief Engineer of the Turnpike Commission (John D. Paul, an acquitted defendant) requested Manu-Mine to submit cost estimates and proposals. The preliminary draft of the contract and the cost analysis were all submitted to John D. Paul. There is absolutely no evidence that any of the Commissioners suggested or dictated any of its terms, or saw a proposed contract prior to its approval.
The contract was thoroughly discussed at the meeting of February 28, 1955, by the turnpike engineers and the consulting engineers who recommended its approval. There is nothing to indicate that Mr. Evans or Mr. Torrance knew any more or less than the other commissioners present. Except for the vague and uncertain testimony of Mr. Lawler, who testified that “they” took up the importance of the contract and “they” were faced with a deadline for completion; “they” were faced with paying interest and that “he” would say by “they” he meant Torrance, Evans and Mr. Paul.
Under the original Act creating the Pennsylvania Turnpike Commission and its various amendments and supplements, including the Act of 1951, creating the *293Northeastern Extension of the Pennsylvania Turnpike, the Turnpike Commission was an autonomous body. Under the various statutes which created it, it whs not required to submit to competitive bidding any contract, regardless of its nature or character. Neither was it required to comply and conform to the various rulés and regulations and statutory requirements which pertain to the highway department or any other branch or bureau of the State government. • ■ ■
The contract in question was not submitted to competitive bid. This was due to the fact that the engineering staff of the Turnpike Commission as well as the consulting engineers, at the meeting of February 28, 1955, when the contract was discussed, recommended its approval in its then present form. The legal-staff of the. Turnpike Commission subsequently approved-the contract both as to substance and as to form. Thus, no criminal motive could possibly be assigned to any Of the members of the Turnpike Commission who voted- approval of the contract, because it was not submitted to competitive bidding.
It was the practice of the Turnpike Commission- to submit construction contracts to competitive bids.-However, it was not an undeviating practice or custom,-for the record shows that many contracts were let without competitive bids. One was for the construction of a bridge entailing an expenditure in the millions.of.dollars. Another was for slushing under the Northeastern extension, a contract which was let in 1955. Therefore, because this contract was not submitted to competitive bid does not and cannot place any criminal motive in the minds of any of the Turnpike Commissioners.
It was the custom of the Commission to submit to the Highway Department construction contracts , for its approval. This was done through the offices of a liaison man, who at the time of this contract was Henry • Klaus. However, engineering contracts were never *294competitively bid and neither were they submitted for approval to the Highway Department nor were they ever approved by that body. Mr. Klaus, who was the liaison man, when he saw the drilling work progressing on the Northeastern extension questioned the Chief Engineer, the Assistant Chief Engineer concerning this and he was advised that the contract was engineering in nature and did not require Highway Department approval.
However, the submission of construction contracts to the Department of Highways for its approval was also not an undeviating practice or custom, for the record is replete with numerous contracts which were neither submitted nor approved by the Highway Department, all of which were construction contracts. Regardless of the nature of the contract, whether it be engineering or construction, the fact is that the contract was approved by the full body of the Commission at a regular meeting on the recommendation of the engineering staff and upon the approval of the legal department and certainly these men were entitled to rely upon the technical advice of the men they had engaged to assist them. Certainly such conduct cannot be criminal in nature.
This contract, it is argued by the majority, was disguised as an engineering contract in order to avoid the requirements as to bidding, competitive bidding, and other features. Certainly no attempt was made to disguise its nature since it was discussed completely by the engineering staff at the meeting, and its character and nature was known to all of the Commissioners and not just to the two who were indicted and convicted. It was the practice of the Commission to assign numbers to construction contracts, although engineering contracts bore no numbers. The contract in question was subsequently assigned a number by Mr. McNeill, *295the Finance Director of the Commission. There is no testimony in the record to show that any of the Commissioners or any of the defendants, other than Mc-Neill, knew of the assignment of a number or the reason one had been assigned to it. Regardless of what may have motivated Mr. McNeill in assigning a number to this contract, that does not in and of itself raise it or lower it to the status of a construction contract. There is evidence on the record that many engineering contracts were assigned numbers and treated as construction contracts and only for the purpose of facilitating payment to the contractors involved. There is also testimony on the record that many construction contracts were not assigned numbers. Therefore, this cannot be taken as a hard and fast rule and no criminal motive can be ascribed to any of the Commissioners or any of the defendants for having failed to assign a number to the contract or for having subsequently assigned one. Certainly nothing criminal in character can be inferred from such conduct.
Likewise, the contract failed initially to require performance bonds. At the instance of the Finance Director on June 30, 1955, performance bonds were furnished. It was the custom of the Commission to have construction contracts carry performance bonds. The fact that none was initially required in this particular instance was probably due to the recommendation of the consulting engineers and the engineering staff, that it was an engineering contract and no one in the Commission felt that such a bond was necessary. The fact that one was subsequently supplied is not to be taken as evidence of any criminal intent or motive on the part of anyone. It was willingly given by Manu-Mine for the purpose of protecting the Turnpike Commission and protecting the materialmen and those who were performing services for Manu-Mine under that contract. That, in itself, would not raise the nature of the *296contract to be construction in nature rather than engineering.
The majority opinion devotes some time to the estimated drilling costs as submitted by Manu-Mine. The record, however, discloses that the estimated cost of drilling as submitted in May, 1955, at $2,500,000 was to cover only two sections of the Turnpike, viz.: 37-H and 37-1. The record also discloses that this estimate was prepared by the field engineering force and certified to by Mr. Guldin, an engineer for the Turnpike Commission. (Vol. 4, page 857R)-. This estimate was subsequently increased in September, 1955 to $6,600,000 on all sections of the Turnpike, 37-H to 37-L, inclusive, and in December of 1955, an increase to $8,500,000 total. These increases were likewise submitted by the field engineers and not by Manu-Mine. (Vol. 5, 1137R). If this is so, and the record is undeniable in this respect, then it cannot be said that any of these defendants engaged in a criminal act because the estimates were not submitted by either of them and neither is there any evidence that any of the defendants had anything to do with the preparation of the estimates as submitted by the field engineering force.
The majority opinion devotes considerable time in arguing that the price charged by Manu-Mine for the drilling under this contract was grossly exorbitant. It is true, that under the contract, Manu-Mine did make a large profit. However, the cost analysis submitted by it to the Commission was, based upon actual performance of a JOY-32 drill which was used by ManuMine under its exploratory contract of July 7, 1954. Even the expert witnesses of the Commonwealth concede that the cost analysis submitted for the work performed under that contract and performed by the JOY-32 drill, were accurate and correct, as to drilling rate and as to the cost of drilling the holes. During the negotiations, leading to and culminating in the con*297tract of February 28, 1955, it was contemplated that a JOY-32 drill would be used for this work. However, Manu-Mine did succeed in securing tbe B-58 drill, also manufactured by the Joy Company. The use of these drills was contemplated about the middle of February, 1955, but there is nothing in the record to indicate that Manu-Mine indicated to the Turnpike Commission or its engineering staff that it intended to use a drill other than the JOY-32. There was no experience on this type of drilling with a B-58 drill prior to the performance of this particular contract. The uncontradicted testimony is that a B-58 drill was used in the anthracite area for drilling shallow holes in stripping excavations for the purpose of blasting the overburden. The average depth of such holes was forty (40) feet, although there were some instances of test holes having been drilled to one hundred and one hundred fifty feet. There was no experience as to holes having been drilled in excess of one hundred fifty feet, although many of the holes under the Northeast extension were drilled to three hundred and three hundred fifty feet. There was no experience with a B-58 drill as to the average that could be drilled per shift or per machine. Certainly, the record does not show that any of the defendants had such prior knowledge as to the performance of this drill. That it did perform well cannot be disputed. However, its performance should not and cannot be used for the purpose of ascribing a criminal motive to any of the defendants, since it was unknown at the time of the execution of the contract what the performance rate would be.
I concur with the majority in the discharge of the defendant Mr. McNeill. I concur wholeheartedly in the opinion of Judge Woodside with regard to the defendant Mr. Torrance and feel that the opinion is equally applicable to Mr. Evans, another one of the defendants. In the case of Mr. Evans there is less evidence on the *298record which would establish guilt or criminal motive or other connection with any wrongdoing in these actions than any of the other defendants. What Judge Woodside has said concerning the testimony of Mr. Lawler is equally applicable to Mr. Evans.
The only other two matters in the testimony which could remotely connect Mr. Evans with either a conspiracy or misbehavior in office is his relationship by marriage to the defendant Stickler. It should be noted that this relationship is rather remote, since Mr. Stickler was the nephew of Mr. Evans’ wife. It should also be noted that this relationship was known to everyone in the Turnpike Commission. Mr. Evans made no attempt to conceal it nor to hide it, and when the contract was being negotiated the engineering department and the legal department, as well as the Commissioners, excepting perhaps Mr. Lawler, knew of the relationship between them. The fact that Mr. Evans was Eichard Evans’ father can give rise to no criminal or corrupt motive on the part of the defendant. There is no testimony on the record that Mr. Evans, or any other defendant, knew of his son’s stockholding interest in Manu-Mine. He was an emancipated son, who had his own home and was fifty years of age. It would be not an inference, but an assumption, for this Court, and the trial court, and the jury to say that Mr. Evans knew of his son’s stockholding interest. We believe it would be highly conjectural to convict a defendant on testimony so weak as this.
The other incident referred to which might have some bearing on the guilt or innocence of Mr. Evans was the so-called Sterling Hotel incident. It arose on cross-examination of a defense witness, Mr. Luke, when he was asked by the Commonwealth’s officers concerning a newspaper article to be read into evidence. It is clear that this testimony was hearsay. However, Luke denied and reiterated his denial on many occasions that *299he did tell the reporter that Manu-Mine was to receive the contract. He stated that the newspaper reporter magnified his very few remarks and denied that he made the remarks attributed to him. Mr. Evans, according to Dr. Cleaves, stated to the doctor that he was to have taken care that Manu-Mine did not get into trouble like this. However, is that statement sufficient to raise the inference that Mr. Evans was engaged in a criminal conspiracy or that he was corruptly motivated in negotiating or entering into the contract so as to amount to a misbehavior in office? Can it give rise to a fact that the contract was a fraud? I think not.
It is of extreme importance to note that Mr. Evans left the Turnpike Commission on June 30, 1955 at which time the estimated drilling cost under ManuMine’s contract on 37-H and 37-1 was $2,500,000 and the estimated cost for slushing on those two sections was $2,000,000, a total of $4,500,000. The increased estimates for drilling and for slushing were made in September and December of 1955, long after Mr. Evans had left the Turnpike Commission. If the program increased in magnitude and if false representations were made after Mr. Evans left the Turnpike Commission, certainly he cannot be held responsible. From the time of the execution of the contract until Mr. Evans left the Commission there were but three payments made to Manu-Mine under this contract and he voted to approve all three payments. He was not a party to subsequent approval, which were made by the Turnpike Commissioners who succeeded him. It is significant in both the conspiracy and misbehavior indictments that fourteen different people approved every payment received by Manu-Mine. None of-them have been charged with conspiracy or with misbehavior in office. These people include engineers, inspectors, attorneys, finance people, accountants, as well as the new chairman of the *300Commission, who visited the scene of the work and the Secretary of Highways, who had a representative of his department assigned to the work.
The most amazing thing about those cases is that only Commissioners Mr. Evans and Mr. Torrance have been charged with wrongdoing. This, of course, must come from Governor Leader’s statement that it was a Republican conspiracy and these two men are Republicans. The members of the Commission at the time of the contract were Evans, Torrance, McSorley, Lawler and'Watson. The contract was approved on February 28; 1955 on motion of McSorley, seconded by Watson. Can this Court conclude that men of this type, all of whom had prior public service in the Commonwealth, who had received their-appointments from the Governor of Pennsylvania and had their appointments confirmed by the' Senate of Pennsylvania, would be pulled literally by their respective noses in approving a contract involving million's of dollars at the behest of Mr. Evans and Mr. Torrance. To me this is unbelievable;
On' December 12, 1955, on recommendation of Mr. Pepper, of the Commission’s legal department, another contract'was approved by the Commission for the Mami-Miné Company. The motion for the approval of this cohtraet was made by Mr. Lawler and seconded by Mr. To'rraricé' and passed unanimously by the Commission. This contract was for additional work on the Northeast extension. It was declined by the Manu-Mine company because the company did not have sufficient personnel to do the additional work. At that time Mr. Evans was no longer a member of the Commission as his term expired June 30, 1955. Evidently at that time Mr. Torrance was carrying the so-called conspiracy, solo.
Mr. Lawler’s answer, on cross-examination, pinpoints the answer to all the questions raised by the conspiracy indictment:
*301“Q. Do you. mean to tell us that you voted for and did vote for the awarding of the contract and the doing of the work without knowing what was involved? A. I depended upon the legal counsel, I depended upon our engineering staff, I depended upon our consulting engineers. That is why the Turnpike has retained these people to advise and instruct us Commissioners.”
The votes of Mr. Torrance and Mr. Evans were motivated by the same reasoning. It is inconceivable that Mr. Lawler, a former Assistant Postmaster General for the United States, Mr. Watson, a former County Commissioner of Philadelphia, and Mr. McSorley, a wealthy and successful business man from Pittsburgh, would be dupes to a conspiracy involving millions of dollars.
It is strange that all of these men never suspected any fraud or any wrongdoing. It is strange, too, that these same people in December of 1955, to which Mr. Evans was not a party, voted unanimously to give Manu-Mine another contract. Mr. Evans had nothing to do with any payments made to Manu-Mine after his term on the Commission had expired. There is no justification then, in assuming that Mr. Evans was criminally motivated or corrupt in entering into this contract because of the size and the magnitude of the payments made to Manu-Mine by other Commissioners, long after he was not a member. In retrospect, it may seem rather odd and strange that this work would continue and arise to such proportions, but certainly, looking at it prospectively, can anyone say that Mr. Evans or any member of the Turnpike Commission or any member of the engineering staff, or the accountants, or the lawyers, too, had any conception of what it eventually might lead to. I would arrest judgment and discharge the defendants, Mr. Torrance and Mr. Evans.
I would grant a new trial to all of the defendants because, in my opinion, the many trial errors that were committed amounted to a denial of a fair trial and the *302violation of the due process clause of the United States and Pennsylvania Constitutions.
The first trial error is the joint trial of obviously repugnant indictments. The false pretense indictment was repugnant to both the conspiracy and misbehavior in office indictments. The conspiracy indictment charges a criminal confederation on the part of the nine-named individuals to cheat and defraud the Turnpike Commission by entering into the contract of February 28, 1955. The misbehavior cases charge Mr. Evans and Mr. Torrance with corruptly negotiating and executing the contract and corruptly permitting payments to be made thereunder to Manu-Mine. The false pretense indictment, on the other hand, charges Stickler and Landsidle with making false representations to the Turnpike Commission, thereby obtaining the Commission’s approval and the signatures of Mr. Evans and Mr. Torrance as officers, with criminal intent to cheat and defraud the Turnpike Commission.
The fact that the Commission may have been defrauded as a result of the representations cannot alter the indisputable fact that the deception was practiced upon the Turnpike Commissioners, and their engineering and legal staffs. If Mr. Evans and Mr. Torrance were induced to execute the contract by virtue of false representations made to the engineering staff or to them, it negatives any participation by them in a criminal conspiracy and contradicts any corrupt or illegal motive as charged in the misbehavior indictments.
If the conditions preceding and succeeding the execution of the contract were falsely represented by Stickler and Landsidle, how can it be said Mr. Evans and Mr. Torrance or any of the Commission staff were corruptly motivated, much less engaged in a criminal conspiracy? Clearly, the one offense is repugnant to the other two and therefore the testimony submitted in *303the false pretense ease would not be material or relevant to the conspiracy and misbehavior indictments and did not show a general course of conduct all tending to the same general end. Com. v. Dixon, 179 Pa. Superior Ct. 1, 115 A. 2d 811 (1955); Com. v. Novak, 165 Pa. Superior Ct. 576, 69 A. 2d 186 (1949); Com. v. McCord, 116 Pa. Superior Ct. 480, 176 A. 834 (1935); Com. v. Quinn, 144 Pa. Superior Ct. 400, 19 A. 2d 526 (1941).
The proof in the false pretenses case would not support the allegations set forth in the other two indictments. As a result, much that was admitted generally without cautionary or limiting instructions by the trial court, and some was conditionally admitted, and some limited to some defendants and not to others, and some was admitted and made applicable to one or two indictments and restricted as to the others. One reading this record could not help but be confused by the limitations and restrictions placed thereon by the trial court. How then, can a lay jury, without the benefit of a written record, at the end of a lengthy and complicated trial, discriminate as to the various defendants and conflicting indictments and determine which testimony is applicable to each?
If a severance had been allowed, then much of the prejudicial testimony deemed admissible as to Stickler and Landsidle would not have been allowed. The fact that Manu-Mine had purchased a fur coat for the wife of Stickler, that it had paid for a house and for furnishing the same for Mr. Stickler, and for a trip to Honolulu for Stickler and his family, was not material to any of the charges other than possibly the false pretense case. It has no bearing upon either the conspiracy or misbehavior charges, although admitted as applicable to the former. Its prejudicial effect on the jury, of course, cannot be measured but its intended effect was obvious — to create an atmosphere of nefarious activities on the part of one defendant which could have *304no evidentiary value as to the conspiracy or misbehavior charges.
In my opinion, the consolidation of these obviously repugnant indictments was prejudicial and constitutes reversible error.
Another glaring error, prejudicial in nature, admitted over defense objections, was the testimony of the chief counsel for the Pennsylvania Department of Highways, who read to the jury the applicable statute setting forth the required procedure pertaining to the Highway Department in advertising and awarding contracts for highway construction. When the testimony was offered the trial judge admitted it conditionally and not until all the evidence was offered was a ruling on its admissibility finally made. (The Turnpike Commission was specifically exempt from the procedural requirements of the Act of 1945, P. L. 1242, Sec. 103, 36 PS 670-103). The submission of this testimony to the jury was tantamount to telling the jury that the Turnpike Commission was governed by the same legal and procedural requirements in awarding contracts as controlled the Highway Department.
What purpose could the testimony serve? Did it aid in any way to prove any of the charges in any of the indictments? Where is its evidentiary value? This error was not innocuous and harmless as the majority opinion holds. It was substantial and prejudicial. Its purpose was to convey to the lay jury the implication that the Turnpike Commission was bound by the same law as the Highway Department. The trial court was in doubt as to its admissibility for it reserved its ruling until the very end of the trial. The testimony should have been immediately rejected. The trial court compounded its original error in refusing to charge as requested by the defendant that the Turnpike was not statutorily obliged to let any contract, regardless of its *305nature, only after competitive bidding. It was, therefore, only natural for a jury to conclude that the procedural requirements applicable to the Highway Department were applicable also to the Turnpike Commission. This was prejudicial error.
Another manifest prejudicial error was the reception of rebuttal testimony offered by the Commonwealth at the close of the defendants’ case. Five former inspectors of Manu-Mine were permitted to testify, over objection, that they were engaged in a separate conspiracy with officials of Rogers Construction Company, a prime contractor with the Turnpike Commission, whereby the witnesses gave false weight slips to Rogers’ employees for slushing material never received. Each of them stated that knowledge of this scheme was not communicated to the officials of Manu-Mine or any of the defendants. In fact, as a result of a private investigation conducted at the instance of Manu-Mine each of the witnesses denied, under oath, that they were engaged in any fraudulent scheme. Under the guise of attacking the credibility of the defendant Stickler and defense witness Luke, who stated that they knew of no wrongdoing or irregularities in the slushing program. The testimony was admitted. If the testimony was germane to any of the offenses being tried it was admissible only to attack the credibility of a witness and not to establish the fact of other collateral wrongs. The statement _to be rebutted was the knowledge or lack of knowledge of Stickler and Luke as to the irregularities, and not the existence or nonexistence of the irregularities. Since each of the rebuttal witnesses admitted that the defendants were ignorant of the fraud, the testimony should have been excluded.
The prejudicial effect of this testimony is apparent because it related to an independent series of crimes, not germane to the cases on trial: Com. v. Saulsbury, 152 Pa. 554, 25 A. 610 (1893); Shaffner v. The Com*306monwealth, 72 Pa. 60 (1872). It was error to admit as substantive evidence of an existing conspiracy, separate and distinct acts and declarations of persons, not defendants, or shown in any way to have been connected with them, not made in their presence without the knowledge of any of them. Wyatt v. U. S., 23 F. 2d 791; Com. v. Duffy, 49 Pa. Superior Ct. 344 (1912); Com. v. Lynch, 49 Pa. Superior Ct. 370 (1912). One of our most fundamental and prize principles in the administration of criminal law is that a distinct crime, except under special circumstances, cannot be given in evidence against the defendant tried for another crime because the person w’ho has committed one offense is not proof of another. Its effect is to create prejudice in the minds of the jury.
The rebuttal testimony was not germane to any of the issues on trial and raised a collateral ladder to the incalculable prejudice of the defendants. Com. v. Petrillo, 341 Pa. 209, 19 A. 2d 288 (1941); Com. v. Burdell, 380 Pa. 43, 110 A. 2d 193 (1955). In my opinion the admission of this highly prejudicial testimony into the record was a denial of due process and prevented, along with the other trial errors, the defendants from receiving a fair trial.2
*307The most glaring prejudicial error was the admission into evidence of the Grand Jury testimony of John I). Paul, former Assistant Chief Engineer of the Turnpike Commission and. an acquitted defendant. It was admitted on the theory that it was a confession or an admission against the declarant. If the statement served that purpose, our review of the record fails to disclose any paragraph remotely resembling an admission of guilt on his part. It was rather an accusatory declaration, particularly against Mr. Evans, containing hearsay, conjecture and clear misstatement of facts. Had the Commonwealth attempted, to offer the same testimony by other witnesses, most of it would have had to be excluded for failing to meet the standards of admissibility. However, under the confession theory, the Commonwealth accomplished by indirection what it could not have hoped to do directly.
If we permit the majority opinion in this respect to become the law in this State, then the Commonwealth can conduct criminal trials by ex parte proceedings or on depositions of witnesses without opportunity on the part of the accused to cross-examine. It is a clear vio*308lation of constitutional rights. The cases relied on in the majority opinion to substantiate its opinion are easily distinguished from the situation confronting us. In all of those cases there was direct testimony of the conspiracy or of the crime involved. In Com. v. Berman, 119 Pa. Superior Ct. 315, 181 A. 244 (1935), one of the codefendants testified as a Commonwealth witness and implicated all of the defendants, including Berman (appellant) as well as Cummings, whose prior declarations were read as against him. There was other testimony supporting the conviction of Berman if Cummings’ statement were entirely excluded. That is not the picture we have before us. Without the Grand Jury testimony of John D. Paul, the convictions cannot stand against any of the defendants, for the record does not establish the guilt of any of them beyond a reasonable doubt.
We do not believe that the cautionary instructions of the trial court limiting the Grand Jury testimony to John D. Paul to the declarant alone is sufficient to remove the obviously prejudicial character of his testimony. As we have previously stated, much of it contained hearsay, conjecture and plain misstatements of fact. It is full of leading questions asked by the Commonwealth amounting to actual testimony by the District Attorney and the Attorney General. In my opinion the statement should have been scanned and all hearsay, conjecture and misstatements have been eliminated, either by the Commonwealth or by the trial court when it became evident that it did not contain a confession or an admission.
Such has been the practice in many counties throughout the Commonwealth when a confession or admission against interest is offered on the part of one defendant. The names of other codefendants and material therein, which is applicable not to the defendant doing the confessing but only to others, has been elimi*309nated by the Commonwealth before submitting it to the jury. In" some instances the court itself has stricken out the irrelevant and possibly prejudicial portions. See Com. v. Epps, 298 Pa. 377, 148 A. 523 (1930); Fife, Jones & Stewart v. The Commonwealth, 29 Pa. 429 (1857). In Com. v. Novak, supra; Com. v. Fugmann, 330 Pa. 4, 198 A. 99 (1938), and in United States v. O’Malley, 117 F. Supp. 895, the respective Courts refused to admit testimony of this character. The latter case is of particular importance for the facts very nearly parallel the instant case. In that case the Circuit Court granted a new trial because of the obvious prejudicial character of the statement of one of the defendants which was permitted to be read into evidence and which the Court limited by striking out portions thereof as being not applicable to the defendant who was convicted. It is a naive theory that prejudicial effects can be overcome by cautionary and sterilizing instructions to a jury. All practicing lawyers know this to be a fiction.
It is significant that despite the trial judge’s instructions limiting this testimony. to the declarant alone, that he still used portions of the Paul testimony in his charge to the jury against the other defendants. It is also significant to note that the lower court devotes considerable time in its opinion to the Paul testimony in order to substantiate the conviction of these defendants. It used John D. Paul’s testimony to prove a conspiracy and to uphold the verdict, and this Court, in its majority opinion, is doing exactly the same thing. The obvious reason is because without this testimony there remains no set of circumstances from which a reasonable inference of guilt can arise. In the interest of justice it is my opinion that we should categorically state and condemn such a practice by the Commonwealth, and not to permit testimony of this character to be introduced into evidence.
*310It is significant to note, too, that John D. Paul, the confessor, had more to do with the negotiation and the effectuation of the contract than any of the other defendants, and it is a strange coincidence that he should have been acquitted and those who the record discloses had little to do with either the negotiation or putting into effect the contract should have been convicted.
To summarize, in my opinion, I would discharge all the defendants because of the invalidity of the indictments; failing this, I would reverse the judgments of sentence and discharge Mr. McNeill, Mr. Evans and Mr. Torrance because of insufficiency of the evidence and award a new trial to Mr. Landsidle and Mr. Stickler ; failing this, I would grant a new trial to all of the defendants on the ground that any one of the trial errors, discussed in this opinion, is sufficient to prejudice the constitutional rights of these defendants and prevent a fair trial, but that certainly the multitude of trial errors contained in this record taken cumulatively, together with the trial atmosphere, constitute a situation which amounts to a denial of due process and where the ends of justice demand a new trial.
Speech of October 22, 1956 made in television broadcast:
“You’ve seen tbe headlines — you’ll see more. Investigation meanwhile goes on. The latest example of how the Republican leaders did business is the Turnpike scandal. A special Grand Jury is now investigating this development. We’re proud of our Turnpike, justifiably so. It’s one of the great highways of the world. And we have a right to be angry that anyone would use it to swindle. Yet this has been done. Certain people set out to steal $20,000,000 from it and they got $9,000,000 before we could stop them. Their front was a company called Manu-Mine Research and Development. Their officers were close relatives of the Chairman of the Republican Turnpike Commission — his son, his nephew and his niece by marriage. Together they owned almost all the stock in the Company. Now how did they go about getting this $9,000,000 from us.
“It was really very easy. Without competitive bidding they got a job digging holes in the ground and then filling them up again. Experts found these holes were useless and the prices charged for digging them and filling them were outrageous.
“As soon as we found out about this our Democratic Commissioners asked the Attorney General to investigate the matter. And Attorney General Cohen petitioned for a Grand Jury investigation. The investigation is now taking place.
*282“Now let’s go back for a moment to examine exactly how ManuMine and its officers who knew the right Republican leaders, pulled off this swindle.
“Manu-Mine set up shop modestly with a nominal capital of $4,300 and as I told you before we stopped the deal, it had been paid over $9,000,000 by the Turnpike Commission. The secret of its success as we’ve seen was simple — Manu-Mine had an inside track with the Turnpike Commission and as a result it did 96.8% of its business with the Turnpike. Now, on most jobs like this one that Manu-Mine worked on, you have competitive bidding. Manu-Mine never had to bid against anybody, it never had to negotiate,, it was employed as a consultant. As a consultant it recommended itself as contractor and then as an inspector of its work that it performed.
“I have here a report by Manu-Mine and the Turnpike Commission. This report cost us $117,000,000 and the gist of it was to propose a contract with — you guessed it — Manu-Mine. Now about that job. Experts say that it was unnecessary. It was made work and the price was jacked up sky-high. Now this isn’t what I say or what anyone in my administration says — this is in the impartial report by the Pierce Management Company of Scranton.
“Here is the report and here is what it says:
“ ‘In our calculations as to the reasonable unit price for drilling, we approached it from two view points. One, assumed eon-tractor-controlled equipment. Two, assumed contractor-rented equipment. In both cases, basing the volume of drilling upon the original estimates, we allowed for overhead, a reasonable profit and the cost of casing.
• With contractor-owned equipment we estimated a reasonable unit price to be $4.77 per linear foot. With rented equipment, we estimated a reasonable unit price to be $5.95 per linear foot.’
“Manu-Mine was paid $12.50 per linear foot. Now you know the story. As much of it as we know of it. You’ll know more when the Grand Jury reports its finding. But the important thing to remember is this is no isolated case: that the Republican leaders have an unfortunate history of scandal that is now coming out after years of being covered up. We’ve only scratched the surface. We will not stop until we have made sure that the guilty have been found out and brought to justice. But more than that we will introduce a Legislative program in Harrisburg which will see to it that such *283dishonest and improper practices can never happen again and that’s why I ask you to vote for a Democratic House of Representatives •and a Democratic Senate in Harrisburg this fall so that we can pass the legislation needed to prevent dishonesty in your State Government . . .”
Statements of October 23, 1956 made in television broadcast:
Don Wear: “John Seotzin would you begin questioning Governor Leader tonight.”
John Seotzin: “Governor, I caught you on a television program last night. I’m not sure what station it was — it may have been this one. It was a tailend of a political film in which you renewed all your charges about Manu-Mines of Reading fleecing the Turnpike Commission of more than $9,000,000 under Republican control. The film reminded me of a statement you made early last September when you sent Attorney General Cohen in .the Dauphin County Court to ask for a Grand Jury investigation of these charges. At that time you said you were sorry to break these charges on the eve of a political campaign and that you said this wasn’t a matter concerning Republicans or Democrats, that all you wanted to do was get the truth. Obviously you’re out to make political hay in a film like you had last night. Now how do you reconcile these two divergent statements?”
Governor Leader: “Well, I think the people, John, are entitled to know the facts. And when there is conspiracy or at least an alleged conspiracy in Pennsylvania, that some group full of wilful politicians are trying to lift from the Turnpike Commission more than $9,000,000, I think the people of this State have a right to know the facts. We’re laying those facts before them and I think it’s one of the things that — I guess almost everything, in spite of the fact that we sometimes try, I think almost everything that an official or governmental official does can be looked upon as polities and I believe that the people ought to know the facts in this case. There are a lot of people involved and we’ve laid the facts before them as ably as we can. But certainly there’s a great deal more to this than I’ve laid before them in that television film and I think that the people of this state are going to be completely and thoroughly shocked at what happened. The moral tone and the ethical standards of this government as exemplified by what happened down there at the Turnpike Commission when they get the results of the Grand Jury that is now convened here in Dauphin County.”
*284Don Wear: “Go ahead John.”
John Seotzin: “Governor, your statements at this instance, plus your film raised a question in my mind that in view of the fact that the Dauphin County Court turned over this matter to the Grand Jury yesterday. Is there any question of this case being prejudged in your mind or influencing the Jurors who are considering it right now? They go home and listen to television Governor.”
Governor Deader: “No, I don’t think there is any danger.”
John Seotzin: “No?”
Governor Deader: “Because the information that we put in there is already common knowledge, has already been published all over the State in newspapers. We haven’t given any of the penetrating, the depth of information that are being presented to the Grand Jury. This is just superficial compared to the things that will be forthcoming, it seems to me, to the Grand Jury. We have been very cautious. There’s a great body of information that we have at our finger-tips obviously or we would not have asked for this investigating Grand Jury here under, incidentally, a Republican District Attorney in Dauphin County. We would not have asked for it if we did not have a great body of information. What we have said so far we have merely scratched the surface but I do believe the people of this Commonwealth are entitled to the information and ought to know the facts.”
John Seotzin: “But my point, Governor, is, when you keep renewing your charges they are bound to have some influence on these jurors who are analyzing this evidence. Det me give an illustration. What if I went out and interviewed a hundred people downtown and I published the results of what they thought about this case. Say some of these decided Manu-Mines was guilty and some of these decided they were not guilty.”
Governor Deader: “They wouldn’t have the facts John. The facts that have been presented so far have been very limited. It’s up to the Grand Jury to determine whether or not they are guilty but the superficial facts that we presented there are just the beginning. There’s no doubt that we haven’t backed them up with all the great, vast body of information that has been collected over the past six or nine months and that’s the information that’s now being presented to the Grand Jury. I have more faith in those members that they’re going to judge the cases either on the basis of what *285they’ve read in your newspaper or what they’ve seen in my telecast.”
John Scotzin: “One more question.”
Don Wear: “Go ahead, John.”
John Scotzin: “If I publish those facts that I found in the poll, I think that the Dauphin County Court would take a dim view of me and probably call me in and reprimand me for that on the basis that it may be prejudicial.”
Governor Leader: “Well, I don’t think — I don’t think they’re going to be influenced that easy. If I didn’t believe that the great body of information we have was enough to — ah—it makes a few-things that you said in your papers and that I said in that telecast look ah' — small because we have only scratched the surface. It’s all superficial. The real ease is being presented down there, I’m sure, is being presented ably and well by one of the former Assistant District Attorneys of the City of Philadelphia. There is great and vast body of information and research and investigation and facts backing up that case and I have great confidence in the way it’s being presented and the ability of the Grand Jury to interpret it and to come to a logical decision.”
John Scotzin: “Governor, conceivably the inquiring Grand Jury could determine that you have no case and throw it out and , then nobody is going to be indicted?”
Governor Leader: “Well, yes it’s conceivable.”
John Scotzin:: “The judge in his charge to 'the jury told them there should be no presumptions. of the guilt or innocence of anybody in these proceedings.”
Governor Leader: “I guess that’s the way they all start and that’s the way law — the tradition of our law and justice in this country is said. And I think it will be interesting to see the developments in that Grand Jury and also be interesting to watch the developments in the Delaware Joint Toll Bridge investigation where there was also a lot of money being spent, extravagances and where they had Miss TNT from Gay Paree on the payroll as a part time secretary.”
As recently as April 16, 1959, this Court in Com. v. Steinberg, 189 Pa. Superior Ct. 381, at page 385, in an opinion by Judge Hirt, said: “A defendant on trial for crime, however guilty, may insist that the Commonwealth establish his guilt, by competent evidence in strict compliance with the law, unaffected by implication or innuendo flowing from collateral matters. . . . But when the court, over objection, permitted the Commonwealth in rebuttal to develop testimony on matters foreign to the issue trying, for the purpose of contradicting defendant Steinberg on an issue of his credibility, he clearly was prejudiced and the admission of this testimony over the appellant’s objection was reversible error. A witness may be contradicted only on matters germane to the issue trying. Commonwealth v. Kettering, 180 Pa. Superior Ct. 247, 252, 119 A. 2d 580; Commonwealth v. Graham, 170 Pa. Superior Ct. 343, 347, 85 *307A. 2d 632; Commonwealth v. Petrillo, 341 Pa. 209, 225, 226, 19 A. 2d 288.”
This is exactly the situation that exists in the instant case where testimony concerning an independent series of crimes not germane to the cases on trial was admitted for the alleged purpose of attacking the credibility of the defendants. In an even more recent case decided by this Court on July 3, 1959, Com. v. Towber, 190 Pa. Superior Ct. 93, in an opinion, also written by Judge Hirt, the Steinberg case was cited with approval and it was again held that a defendant cannot be contradicted by showing particular instances of misconduct disconnected with and collateral to the issue being tried. And in this case, at page 99, Judge Hiet said: “Nor was the admission of such evidence justified on the theory stated in the opinion of the lower court that: ‘. . . the truth of this matter was not in issue but only whether the defendant had made the same.’ ”