Dissenting Opinion by
Ervin, P. J.:The factual background of this case is adequately set forth in the majority opinion and need not be repeated in this dissenting opinion. The majority opinion satisfactorily disposes of all the points raised by the appellants in these appeals with the exception of two points and, because of these two, reverses the judgments of sentence and grants a new trial to the appellants. I would also reject these two contentions and affirm the judgments of sentence.
Appellants argue that the trial judge’s following instruction to the jury was error: “You may convict the defendants upon the uncorroborated testimony of an accomplice provided his testimony satisfies you of the guilt of the defendants beyond a reasonable doubt. However, you must bear in mind that the testimony of an accomplice comes from a corrupt and often unreliable source. You must, therefore, carefully, critically and closely scrutinize any such testimony. The reason that such testimony is considered as emanating from a corrupt source is that it comes from a person or persons who admittedly are involved in, or a part of, a serious criminal offense and it must, therefore, be received with some suspicion. If, on the other hand, *216after having carefully considered the testimony of an accomplice, you are convinced that it carries with it the clear conviction of truthfulness, you may accept and act upon such testimony.”
It is argued that the statutory law of Pennsylvania prohibits the conviction of any person charged with bribery upon the uncorroborated testimony of an accomplice and that it was fundamental error for the trial judge not to have thus instructed the jury. The argument is presented notwithstanding the fact that this position was at no time asserted during the course of the trial nor was the failure to so instruct on this basis expressly excepted to. The appellants’ written requests for instructions made no such request.
The issue raised by appellants is based upon the Act of March 31, 1860, P. L. 382, §19, 18 PS §2. That section provided: “No witness shall be excused from testifying in any criminal proceeding, or in any investigation or inquiry before either branch of the general assembly, or any committee thereof, touching upon his knowledge of the aforesaid crime, [referring to bribery as defined in the Act of March 31, 1860, P. L. 382, §18] under any pretense or allegation whatsoever; but the evidence so given, or the facts divulged by him, shall not be used against him in any prosecution under this act: Provided, That the accused shall not be convicted on the testimony of an accomplice, unless the same be corroborated by other evidence, or the circumstances of the case.”
There is a serious question as to whether The Penal Code, Act of June 21, 1939, P. L. 872, §1201, 18 PS §5201, repeals this portion of the 1860 act. I find it unnecessary to reach that question in the disposition of this ease. The real question is whether the witness, John Welsh, was an accomplice. As to the charges of extortion and violation of the Magistrates’ Court Act, he was a victim and not an accomplice; Com. v. Galla*217gher, 165 Pa. Superior Ct. 553, 559, 69 A. 2d 432 (1949); Com. v. Hopkins, 165 Pa. Superior Ct. 561, 69 A. 2d 428 (1949).
As to the bribery charge, I am also firmly convinced that Welsh was not an accomplice. Judge (later Justice) Arnold, in the case of Com. v. Hopkins, supra, very clearly gave the test for determining just what an accomplice is. Commencing at page 564 of that opinion he said: “We cannot sustain appellant’s contention that each of the persons from whom the money was extorted was an accomplice of the defendant, who was entitled to a charge (requested and refused) on the quality of accomplice testimony.
“By the great weight of authority the test of determining if one is an accomplice of the accused on trial is whether or not he could be indicted and punished for the crime with which the accused is charged. One who could not be convicted of the crime with which the accused is charged is not an accomplice, regardless of how culpable his conduct may have been. See 22 C.J.S., Criminal Law, §786, page 1334; 56 A.L.R. 407, 412; 111 A.L.R. 1393. In Underhill on Criminal Evidence (4th ed.) §150, page 222, the rule is thus stated: ‘One test as to whether or not a person is an accomplice is held to be whether there is sufficient evidence to indict for the crime upon which the accused is standing trial’; citing cases from Arkansas, California, Delaware, Georgia, Idaho, Illinois, Iowa, Kentucky, Minnesota, Montana, New Mexico, Oklahoma, Oregon, Tennessee and Texas. To these must be added Utah (State v. Gleason, 86 Utah 26, 40 Pac. 2d 222) and Ohio (State v. Ruskin, 117 Ohio St. 426, 159 N.E. 568). We followed the weight of authority in Commonwealth v. Billingsley, 160 Pa. Superior Ct. 140, 50 A. 2d 703, aff. 357 Pa. 378, where the defendant was charged with attempted subornation of perjury of one House, who had testified falsely at the defendant’s in*218stance in a civil action, but who withdrew and corrected his testimony. There the only evidence of defendant’s attempted subornation of House came from the uncorroborated testimony of the latter. Appellant-defendant claimed that House was an accomplice. We said (page 145) : ‘. . . the suborned and the suborner . . . are not accomplices as to the procurement or suborning of the witness to commit perjury, because a suborner cannot be guilty of suborning himself [citing authorities].’2 The patent culpability of House (in attempting perjury) did not make him an accomplice of Billingsley as to the latter’s attempted subornation of House.” The footnote (page 565 n. 2) sets forth other examples of interest: “A girl under sixteen is not an accomplice of a defendant charged with consensual rape upon her: Commonwealth v. Feist, 50 Pa. Superior Ct. 152; nor is an abortion victim an accomplice: Commonwealth v. Bricker, 74 Pa. Superior Ct. 234; Commonwealth v. Sierakowski, 154 Pa. Superior Ct. 321, 35 A. 2d 790. The victim of one charged with violation of the White Slave Act is not an accomplice: U. S. v. Sorrentino, et al., 78 F. Supp. 425. An alien unlawfully entering the United States is not an accomplice of one unlawfully bringing the alien into the country: Emmanuel v. U.S., 24 Fed. 2d 905, certiorari denied, 278 U.S. 643; Campbell v. U.S., 47 Fed. 2d 70; a bawdy house inmate who relayed defendant’s inquiries to the proprietress is not an accomplice of a defendant transporting a girl for purposes of prostitution: Commonwealth v. Fusci, 153 Pa. Superior Ct. 617, 35 A. 2d 93.”
Welsh was the giver of the bribe and the appellants were the receivers of the bribe. The charge of bribery against these appellants is based upon the Act of June 24, 1939, P. L. 872, §303, 18 PS §4303 (The Penal Code) and not the common law offense. This provision is as follows: “Whoever shall directly or indirect*219ly, or by means of and through any artful and dishonest device whatever, give or make any promise, contract or agreement, for the payment, delivery, or alienation of any money, goods or other thing, in order to obtain or influence the vote, opinion, verdict, award, judgment, decree, or behavior of any member of the General Assembly, or any officer of this Commonwealth, judge, juror, justice, referee or arbitrator, in any bill, action, suit, complaint, indictment, controversy, matter or thing whatsoever, depending or which shall depend before him or them, is guilty of bribery, a misdemeanor, and on conviction thereof, shall be sentenced to pay a fine not exceeding five hundred dollars ($500), or to undergo imprisonment by separate or solitary confinement at labor not exceeding one (1) year, or both.
“The member of assembly, or officer, judge, juror, justice, referee, or arbitrator, who shall accept or receive, or agree to accept or receive such bribe, is guilty of receiving a bribe, a felony, and on conviction thereof, shall be sentenced to pay a fine not exceeding one thousand dollars ($1,000), or to undergo imprisonment by separate or solitary confinement at labor not exceeding five (5) years, or both.”
Appellant Marmon could not have been proceeded against for common law bribery: Com. v. Bausewine, 354 Pa. 35, 37, 46 A. 2d 491 (1946). The appellants were charged with receiving a bribe, a felony. Welsh, at best, could have been found to have offered a bribe, a misdemeanor. Welsh could not have been convicted of the crime of receiving a bribe. Whether Welsh is an accomplice does not depend upon the degree of his culpability in this matter. He certainly could not be indicted and punished for the crime with which the appellants are charged and therefore is not an accomplice.
*220The majority opinion, as well as the appellants, rely greatly upon the case of Com. v. Kilgallen, 379 Pa. 315, 108 A. 2d 780 (1954), wherein the Supreme Court, in considering the extent of immunity conferred by art. Ill, §32 of the Pennsylvania Constitution, states: “The crime of bribery applies to the giver and to the taker of the bribe. Each is the accomplice of the other.” It should be noted that the question of what constitutes bribery under the Constitution is broader than that contained in the statutory definition. Furthermore, the statement is pure dictum because Kilgallen was the alleged receiver of the bribe. The case was not one in which the giver of the bribe was testifying against the receiver. All the Kilgallen case decided was that since Kilgallen could be subjected to a bribery indictment, he could not be compelled against his will to testify before an investigating grand jury and that any testimony given by him before the investigating grand jury could not be considered by an indicting grand jury.
The appellants also argue that the trial judge erred in permitting certain rebuttal testimony. Appellant Marmon had discharged Walker and had then instructed the police officers to arrest Crittenden. At the time she ordered the arrest of Crittenden, she had all the evidence against Crittenden before her, because it was presented on that Friday in the case against Walker. Yet the very next day, she discharged Crittenden on the same evidence.
That sequence of events led to an extremely damaging inference that appellant Marmon had some ulterior motive in causing Crittenden to be arrested on Friday (knowing all the evidence against him) and then discharging him the next day. It provided support for the Commonwealth’s position that appellant Marmon’s inconsistent action was motivated by the intervening bribe. Appellant Marmon tried to avoid the fatal in*221ferenee that she held Crittenden one day and discharged him the next because of the intervening bribe by giving an explanation for her instruction to the officers, as follows: “That was because the Assistant District Attorney had requested — he said, ‘This is what you should do.’ ” A few moments later, appellant Marmon testified: “I went by what the Assistant District Attorney said. That is all I can tell you, is what the Assistant D.A. had said at the hearing. And I believe that the Assistant D.A.’s are at these hearings to guide the magistrate that don’t know.” The District Attorney then further cross-examined appellant Marmon to try to bring out that she, in fact, did. not necessarily follow the assistant district attorneys’ recommendations.
Thus, a key question in the entire case was Mrs. Marmon’s reason for instructing the police officers to hold Crittenden and then later discharging him. The Commonwealth contended her reason was to enable her to extort a bribe of $100. Appellant Marmon tried to explain it away by saying “I followed with whatever they had asked me to do”, referring to advice from assistant district attorneys.
In the factual context of this case, it became crucial to show that appellant Marmon frequently disagreed with assistant district attorneys. That fact would show that her instruction to the police to hold Crittenden could not be explained in terms of following the assistant district attorneys’ recommendations, but her action was motivated by the bribe.
To prove that appellant Marmon did not follow “with whatever they [assistant district attorneys] had asked me to do,” the district attorney property introduced into evidence numerous cases where appellant Marmon had acted directly contrary to what the assistant district attorneys had requested. The Commonwealth did not seek to introduce into evidence the evi*222dence in those cases in question, but sought only to introduce into evidence the narrower fact that appellant Marmon acted contrary to the assistant district attorneys’ requests which showed her guilty state of mind and proved her defense was fabricated.
The Commonwealth also properly offered rebuttal testimony to contradict appellant Marmon’s assertion that she never held anyone for more than $300 bail for court on a numbers case. This testimony was offered by appellant Marmon to show that Welsh could not possibly have any basis for saying that she had demanded $100 or $1,000 bail for court. On direct examination appellant Marmon’s counsel asked the question and she answered as follows: “Q. Did you on that morning say to Mr. Welsh, ‘It’s a hundred dollars or a thousand dollars bail for court’? A. No, sir. Now, I would like to tell you something. This was a numbers case and I believe all the while I was on the bench no numbers case was ever held over $300 bail for court. So I don’t know where he would ever get a figure like $1,000 bail. Number cases to me were never, never really that important that you would hold them in high bail.” In rebuttal, the Commonwealth proved that there were numerous cases where appellant Marmon had held defendants in numbers cases for more than $300 bail for court.
The rebuttal testimony was properly admitted in evidence to impeach appellant Marmon’s credibility on an important and material issue in this case. See Flowers v. Green, 420 Pa. 481, 218 A. 2d 219; Com. v. Turner, 371 Pa. 417, 88 A. 2d 915 (1952); Com. v. Truitt, 369 Pa. 72, 85 A. 2d 425 (1951); Com. v. Duca, 312 Pa. 101, 165 A. 825 (1933); Blauvelt v. Delaware, L. & W. R. Co., 206 Pa. 141, 55 A. 857 (1903); Com. v. Weber, 167 Pa. 153, 31 A. 481 (1895); Wright v. Cumpsty, 41 Pa. 102 (1861); Com. v. Kettering, 180 Pa. Superior Ct. 247, 119 A. 2d 580 (1956); Com. v. Graham, *223170 Pa. Superior Ct. 343, 85 A. 2d 632 (1952); Com. v. Shultz, 115 Pa. Superior Ct. 177, 175 A. 288 (1934); Com. v. Benedict, 114 Pa. Superior Ct. 183, 173 A. 850 (1934); Com. v. Bell, 88 Pa. Superior Ct. 216 (1926), affirmed 288 Pa. 29, 135 A. 645.
On the question of rebuttal evidence, the court below carefully instructed the jury on its limited purpose as follows: “Members of the jury, I am quite certain you realize that this testimony is not for the purpose of establishing some wrongful act that is not involved in this case, it is for the purpose of contradicting a portion of her testimony, and on that basis if you believe it does then it does go to her credibility and the weight that you are going to attach to her testimony.”
The evidence was sufficient to support the verdicts. I would affirm the judgments of sentence entered below.
Wright and Spaulding, JJ., join in this dissenting opinion.