(dissenting in part). I join in that much of the majority opinion which reverses the judgments on the indictments against the defendants Nelson, Macarelli and Barnoski, sets aside the verdicts and orders a new trial or trials for the defendants on the indictments. *204I dissent, however, from the majority’s holding that the trial judge properly denied the defendant Nelson’s motion for a directed verdict of not guilty.1 I would order that a judgment of not guilty be entered for the defendant Nelson.
The majority correctly concludes that the Commonwealth presented sufficient evidence which, if believed, warranted the jury in finding that there was a conspiracy between Barnoski, Macarelli, Chilla and Byrne to “fix” the ninth race at Suffolk Downs on the date in question, and to obtain $1,000 in cash from Nelson to further the objective of the conspiracy. I concede further that the Commonwealth presented, and the trial judge properly admitted, evidence which linked Nelson to the conspirators in this case: the comment by either Chilla or Macarelli to Barnoski to the effect that Nelson should be notified that Byrne was “on his way”; Bamoski’s instructions to Byrne “to go down [to Brockton] and speak to no one but Nelson, and pick up an envelope with $1,000 in it... and not to answer any questions [Nelson] might ask... just to say, if [Nelson] asked... any questions, ‘Billy [Barnoski] will be in touch with you,’ and not to offer any information whatsoever”; the fact that, as Byrne was leaving for Brock-ton, he heard Barnoski “talking to someone on the phone,” describing him (Byrne) and his attire, and telling that someone that he (Byrne) was on his way; the confrontation and conversation between Nelson and Byrne in Nelson’s office in Brockton where Nelson gave Byrne ten $100 bills and said, “Are you supposed to give me the name of the horses?” and “Well, have [Barnoski] call me as soon as you get back so I can get down in plenty of time”; and, that two calls had been made from Barnoski’s telephone to Nelson’s telephone, the first at a time consistent with Byrne’s return to Bamoski’s house, the second at a time *205following Byrne’s arrest at Suffolk Downs, which may have been witnessed by Macarelli.
From all this evidence, the jury could infer that Nelson provided the money which later was used by others in furtherance of the scheme; that Nelson talked by telephone (perhaps twice) to Bamoski, who knew all the details of the scheme, and that Nelson later gave the money to a man he knew to be Barnoski’s messenger; that Nelson inquired about Barnoski’s informing him of the names of “horses,” and wanted the names so he could “get down in plenty of time”; and that Nelson or someone in Nelson’s office received a telephone call from Bamoski at a time after the arrest of Byme.
I part company with the majority at this point, however, because, in my view, this evidence, even when viewed in its aspect most favorable to the Commonwealth, was not sufficient to support the inference that Nelson had the requisite guilty knowledge. The test is whether the inference was warranted beyond a reasonable doubt. Probability is not enough; “seriously suspicious” evidence is not enough. Commonwealth v. David, 335 Mass. 686, 696 (1957). The evidence must be sufficient to reach the level of moral certainty (Commonwealth v. Russ, 232 Mass. 58,68 [1919] ; Commonwealth v. Webster, 5 Cush. 295, 319-320 [1850]; see Comment, 24 U. Chi. L. Rev. 561 [1957]), even in cases where common experience may tempt a court to accept a lesser level of proof which may be dispositive in extra-legal contexts.
The majority opinion, quite rightly I believe, points out that because secrecy and concealment are essential features of successful conspiracies (Commonwealth v. Kiernan, 348 Mass. 29, 55-56 [1964], cert, denied sub nom. Gordon v. Massachusetts, 380 U.S. 913 [1965]), proof of the crime must, often and necessarily, be circumstantial in nature. A jury case is made out unless the inference of guilt is “forbidden by some special rule of law, or is declared unwarranted because too remote, according to the ordinary course of events.” Commonwealth v. Bonomi, 335 Mass. 327, 356 (1957). Commonwealth v. Doherty, 137 Mass. *206245, 247 (1884). On the state of the proof in this case, however, other principles, not alluded to by the majority, are equally relevant and persuasive. “[I]f, upon all the evidence, the question of guilt of the defendant is left to conjecture or surmise and has no solid foundation in established facts, a verdict of guilty cannot stand.” Commonwealth v. Fancy, 349 Mass. 196, 200 (1965), quoting from Commonwealth v. O’Brien, 305 Mass. 393, 401 (1940). See Commonwealth v. Kelley, 359 Mass. 77, 88 (1971). Furthermore, “[w]hen the evidence tends equally to sustain either of two inconsistent propositions, neither of them can be said to have been established by legitimate proof.” Commonwealth v. Fancy, supra, citing Commonwealth v. Smith, 342 Mass. 180, 183 (1961), and Commonwealth v. Carter, 306 Mass. 141, 147 (1940). Commonwealth v. O’Brien, supra.
Thus, in my view, it is at least as reasonable to infer (a) that Nelson provided money and sought the names of horses for a purpose (in so far as he knew) unrelated to the “fixing” of a race as it is (b) to infer that he was involved in the unlawful scheme to fix the race. The possibilities of an innocent purpose are many, but those which most readily come to mind center around the use of the money and the names of the horses in connection with wagering and “tips.”2 These many possibilities, which admittedly should be considered in light of the jury’s undoubted privilege to infer that Nelson’s providing the money and uttering the words “so I can get down in plenty of time” meant that Nelson wanted the names of certain horses so he could “get a bet down,” must be weighed along with, in particular, Byrne’s testimony that he had been instructed to refuse to answer Nelson’s questions or to provide Nelson with any information.3 Further, I cannot *207even begin to speculate as to the possible pretexts or representations which may have been made by the other men to Nelson.4 All of this is considered in the light that there was no evidence of prior unlawful dealings or agreements between Nelson" and the others.
I have considered this case with relation to other cases in which this court concluded that the proof was not sufficient to warrant a conclusion that the defendant was a participant in a conspiracy as charged.
In Commonwealth v. David, supra at 695-696, we held that a verdict of not guilty should have been directed for one defendant (Young) because the evidence, though “seriously suspicious,” was insufficient to “reach the point of providing the proof which would warrant a verdict of guilty.” The evidence showed that Young sold 20,000 gelatin capsules (peculiarly suitable for use in distributing heroin) to the persons who planned to distribute the drug; that he participated in removing the labels from the boxes containing the capsules for the purpose of concealing the source of the materials; that he knew two of the three men implicated in the scheme to distribute heroin; and that he lied to narcotics agents and the police about certain facts when interrogated. Nevertheless, we said: “Assuming that a conviction would be warranted by evidence of the sale of the capsules by Young with actual knowledge of the conspiracy, we think that here the jury would not be warranted in finding that such knowledge had been proved beyond a reasonable doubt.” Id. at 695.
In Commonwealth v. Benesch, 290 Mass. 125, 129-132 (1935), we held that a defendant (Davison) was not shown to be a conspirator in an unlawful plan to defraud purchasers of investment trust shares by false representations as to the purchase of underlying securities, although it was shown that his relationship to the investment trust was extensive; that he was aware at one time of wrongful *208manipulation of some of the shares; and that he was on the payroll of the trust and from time to time drew large sums of cash from its accounts for his own benefit. We said: “Whatever inferences might be drawn with reference to Davidson’s connection with the Trust, there is nothing in the evidence to support a finding that he knowingly and intentionally joined... in a conspiracy____” Id. at 131.
Similarly, in Commonwealth v. Anthony, 306 Mass. 470, 479-481 (1940), it was held that where a series of larcenies occurred from customers’ accounts held by a stockbroker partnership, it could properly be inferred that the partner who was the “inside man” of the firm participated in the crimes, but it could not properly be inferred that the second partner (Anthony), who was the “outside man,” knew of, approved, participated in or was in any way involved in any conspiracy.
In Commonwealth v. O’Rourke, 311 Mass. 213, 220-221 (1942), we held, in a case alleging conspiracy to make and use false nomination papers for elective office, that the defendant (O’Rourke), who was daily involved with the handling and delivering of the papers, was not shown to be a member of the conspiracy, although the inference of guilt was warranted against the other defendants solely on circumstantial evidence, including the appearance of the papers. See Commonwealth v. Chagnon, 330 Mass. 278, 282-283 (1953); Commonwealth v. Lopes, 318 Mass. 453, 455 (1945).
In summary, I think that the jury would not be warranted in finding beyond a reasonable doubt that Nelson was a coconspirator. His conduct was highly suspicious. Nevertheless, in my opinion, the evidence against him “does not bridge the gap between suspicion and proof” (Commonwealth v. O’Rourke, supra at 220), and did not warrant his conviction.
I need not and do not take issue with the majority’s disagreement with the reasoning of the Appeals Court with regard to the Commonwealth’s burden of proving Nelson’s awareness of the details of the conspiracy as specified in the bill of particulars. See United States v. Feola, 420 U.S. 671, 692 (1975); Blumenthal v. United States, 332 U.S. 539, 557 (1947).
Even if the contemplated wagering was unlawful, it would not be material as proof of the indictment here which charged conspiracy to fix a race.
It is not appropriate in this context to consider Byrne’s testimony in fragmented fashion. Thus the exculpatory nature of this portion of his testimony is significant in supporting my conclusion that the case against Nelson should fail, as no more than conjectural.
It is not inconsistent with this premise that Nelson’s defense was of an alibi nature, and that he denied any knowledge of the encounter described by Byrne; Nelson’s right to the directed verdict accrued before he himself testified. Commonwealth v. Kelley, ante, 147, 150 n.l (1976).