Commonwealth v. EVANS

154 A.2d 57, 190 Pa. Super. 179, 1959 Pa. Super. LEXIS 638

• Court: Superior Court of Pennsylvania
• Decided: August 10, 1959
• Docket: Appeals, 29 to 37
• Status: Published

Opinions

Opinion by

Rhodes, P. J.,

These appeals are by five defendants, Thomas J. Evans, James E. Torrance, Charles W. Stickler, Clayton A. Landsidle, and Paul J. McNeill from judgments of sentence of the Court of Quarter Sessions of Dauphin County. Defendants were convicted of conspiracy to cheat and defraud the Pennsylvania Turnpike Commission in connection with certain transactions involving the Manu-Mine Research and Development Company during construction of the Northeastern Extension of the Pennsylvania Turnpike.¹ In addition, Thomas J. Evans, the former chairman of the commission, and James E. Torrance, a former member and secretary-treasurer- of the commission, were convicted on separate indictments charging misbehavior in office. Charles W. Stickler, president of Manu-Mine and a principal stockholder, and Clayton A. Landsidle, general manager of Manu-Mine, were also convicted on an indictment charging the crime of cheating by fraudulent pretense, the Pennsylvania Turnpike Commission having been allegedly cheated and defrauded. Paul'J. McNeill, former finance director of the commission, was named only in the conspiracy indictment.²

The issues presented on these appeals involve the refusal of defendants’ motions to quash the indietments, the refusal of defendants’ motions in arrest of judgment, and the refusal of defendants’ motions for a new trial.

The crimes for which these defendants were convicted arose principally out of a contract dated February 28, 1955, between the commission and Manu-Mine. The ostensible purpose of the contract was to provide surface support for the right of way of the Northeastern Extension across the anthracite coal measures by means of a program of slushing material into mine void's underlying the road way area. Under the contract, Manu-Mine was engaged (1) to plan and design the slushing operation, for which it was to be paid a maximum of $9,600; (2) to supervise and inspect the slushing work, for which it was to be paid either $138 or $207 per eight-hour shift, depending upon underground conditions; and (3) to drill and case holes through which the material was to be slushed underground, for which it was to be paid $12.50 per foot of hole drilled. Manu-Mine performed work under the contract until it was suspended on February 27, 1956, prior to full completion. No voucher for the $9,600 for design work was submitted during the active performance of the contract. But for work up to December 31, 1955, payments had been made to Manu-Mine totaling $6,846,441.64, of which $6,724,718.74' was for drilling, and $121,722.90 was for inspection and supervision. Periodical estimates for additional work to February 29, 1956, were submitted in the amount of approximately $833,000, but they were not paid. Of the total amount of $7,679,441.64 “earned” by ManuMine under the contract, the profit, after all expenses, amounted to approximately $1,000,000, or more than 100 per cent of the cost. Manu-Mine was owned by defendant Stickler, Stickler’s wife, and the late Richard Evans. Stickler was a nephew of the wife of defendant Evans, and Richard Evans was his son.

In brief, it was the theory of the Commonwealth that the defendants had conspired to defraud the commission by obtaining this contract and payments thereunder for Manu-Mine; that the drilling and slushing program, inaugurated at the request and on the recommendation of Manu-Mine, was in fact 95 per cent unnecessary; and that the price for drilling was unconscionably excessive and fraudulent, especially since Manu-Mine had represented that the contract cost per foot of drilling had been computed on the basis of the cost plus only 10 per cent profit.

I. The Validity of the Indictments

On October 22, 1956, upon the petition of the Attorney General of the Commonwealth, dated September 1, 1956, in which the District Attorney of Dauphin County had joined, a special investigating grand jury was convened. The matters disclosed by the presentment of the investigating grand jury formed the basis for the bills of indictment submitted, at the direction of the court, to the regular grand jury for the January Sessions of 1957. On January 23, 1957, the regular grand jury returned indictment's against the nine defendants, five of whom have appealed after conviction, and four of whom were acquitted. Defendants moved to quash the indictments, alleging that on the evening that the investigating grand jury convened and on the folloAving evening the Governor of the Commonwealth, in broadcasts over two Harrisburg television stations, made an inflammatory speech and remarks, and that the district attorney and the 'special deputy attorney general had intruded upon the deliberations of the investigating grand jury, which was prejudicial to, defendants. The motions to quash were denied in an opinion by Judge Neely; we believe this was proper.

It is significant that the motions to quash, with the exception of that filed by defendant Torrance, do not question the form or sufficiency of the indictments, and that the matters alleged as prejudicial are extraneous to the indictments and relate principally to the investigating grand jury and not to the indicting grand jury. Ordinarily, alleged defects or irregularities in the proceedings preliminary or antecedent to the indictment may not be considered on a motion to quash. Com. v. Gross, 172 Pa. Superior Ct. 85, 92, 92 A. 2d 251. A motion to quash which is based upon the allegation of extraneous factors should not be sustained unless it clearly appears that the defendant has been harmed by some improper conduct that interfered with his substantial rights. The court below concluded that the remarks of the Governor at the time the investigating grand jury convened were not such as to harm the defendants in the subsequent return of the indictments. In this respect the court considered not only the allegations of defendants, but also the fact that the investigating grand jury was specifically admonished in the charge of the court to divorce its deliberations from any political turmoil, public clamor, or publicity, and to reach its conclusions on the basis of the evidence presented “uninfluenced by any partisanship or political considerations whatsoever.” There is nothing to indicate that the investigating grand jury did not properly follow this instruction. Com v. Brownmiller, 141 Pa. Superior Ct. 107, 113, 14 A. 2d 907. Nor is there any indication that the grand jurors heard such irrelevant remarks. If they had it would not necessarily invalidate the subsequent indictments based upon other and proper evidence. Com. v. Gross, supra, 172 Pa. Superior Ct. 85, 92, 92 A. 2d 251.

The allegation of intrusion by the district attorney and the special deputy attorney general is likewise extraneous to the indictments and is without merit.

“It is the duty of the district attorney ... to attend upon a grand jury, lay before them all matters upon which they are to pass, aid them in the examination of witnesses and give general instructions as may be required. It is highly improper, however, for the district attorney ... to take part in the deliberations of a grand jury, as it is their duty to consider alone the evidence and apply it to the case.” Com. v. Brownmiller, supra, 141 Pa. Superior Ct. 107, 118, 14 A. 2d 907, 910. The record shows that the district attorney and the deputy attorney general properly attended upon the investigating grand jury giving only general advice. There was no improper conduct or intrusion upon its deliberations.

A further consideration is that the investigating grand jury and the indicting grand jury are separate legal bodies. Although both may have considered the same alleged crimes involving the same individuals, their proceedings, deliberations, and presentments are distinct. Extraneous matters affecting one may not influence the other, and irregularities before one are not always present in the other; the two bodies are unrelated in this respect. Consequently, an indictment by a regular grand jury is not necessarily tainted by some irregularity or improper influence alleged to have affected the investigating grand jury. Com. v. Gross, supra, 172 Pa. Superior Ct. 85, 90, 91, 92 A. 2d 251. At least, the irregularity or improper influence must be shown to have also affected the indicting grand jury. Nothing of this nature appears in this ease. “No matter how irregular the investigatory proceedings before the grand jury may have been, the presentment at least furnished the district attorney with information sufficient to justify his application for leave to present a district attorney’s bill.” Com. v. Brownmiller, 137 Pa. Superior Ct. 261, 267, 9 A. 2d 155, 158.

In his appeal Torrance raises two additional matters with respect to the indictments, one possibly affecting their form and the other attacking their sufficiency. It is argued that the court failed to approve the indictments presented to the regular grand jury. On January 21, 1957, the court entered an order that the district attorney “prepare and submit to the regular January, 1957, Grand Jury now in sessions, bills of indictment covering all the matters contained in the Presentment of the Special Grand Jury of Investigation made to the Court on Friday, January 18, 1957.” Apparently no subsequent order formally approving the indictments drawn pursuant to this order was entered.

Generally, an indictment may come before a grand jury only if it is founded upon the transcript of a magistrate or an order of court evidencing leave to present it. Com. v. Wilson, 134 Pa. Superior Ct. 222, 227, 4 A. 2d 324; Com. v. Russo, 177 Pa. Superior Ct. 470, 477, 111 A. 2d 359. A district attorney’s bill would appear to be a substitute for the preliminary proceedings normally held in criminal matters. As such it should be subject to the general rule previously stated that alleged defects or irregularities in the proceedings preliminary or antecedent to indictment may not be examined on a motion to quash. Com. v. Gross, supra, 172 Pa. Superior Ct. 85, 92, 92 A. 2d 251. Nevertheless, we are of the opinion that the order of January 21, 1957, was sufficient leave of court for submission of the indictments. The order directed not only the preparation of indictments covering the matters presented by the investigating grand jury, but the submission of those indictments to the regular grand jury as well. In both respects the district attorney acted in conformity with the court’s order.

It has also been argued before us on behalf of Torrance that the indictments are insufficient as a matter of law. At No. 216, January Sessions,- 1957, Torrance and the other defendants were indicted for conspiracy to defraud and to do other unlawful acts to the prejudice of the commission in connection with the Manu-Mine contract of February 28, 1955. At No.1220, January Sessions, 1957, Torrance was indicted on three counts — the first charging misbehavior in office by corruptly participating in the negotiation and obtaining of the Manu-Mine contract; the second charging misbehavior in office by willfully and eorruptly permitting the Manu-Mine contract to become effective thereafter and by permitting payment of vast sums of money to Manu-Mine pursuant to said contract; and the third charging that he, being a turnpike .commissioner, hampered, obstructed, and corruptly interfered with the proper investigation of the Manu-Mine con: tract. Torrance claims that the conspiracy-indictment and counts 1 and 2 of the misbehavior indictment contain erroneous statements of the law relative to contracts entered into by the commission in that the practice of competitive bidding, the requirement of performance bonds, and similar contractual provisions are referred to as “legal” requirements which were not complied with in the negotiation and execution of the Manu-Mine contract; We have examined the indictments thoroughly and conclude that, even assuming that the practice of competitive bidding and the inclusion of the customary provisions of a construction contract are not legal requirements, the indictments are nevertheless sufficient. The statements in the indictments to the effect that these requirements are “legal” requirements, if erroneous, would be surplusage; the validity of the indictments is not affected by the elimination of the words “legal” or “legally.” Com. v. Bristow, 185 Pa. Superior Ct. 448, 459, 138 A. 2d 156; Com. v. Havrila, 38 Pa. Superior Ct. 292, 297. Eliminating. the words “legal” or “legally,” the indictments still charge that, in negotiating and obtaining the Mahu-Mine contract, the defendants did not comply with the usual practice of the commission regarding competitive bidding or include other contractual provisions normal to construction contracts, and that the failure to follow these normal procedures was one of the methods by which the fraud was perpetrated, the contract obtained, and the moneys paid, to the prejudice of the commission. Whether or not these procedures are legal requirements, and the significance of the failure of defendants to comply therewith will be the subject of further discussion in this opinion.

Tbe motions to quash tbe indictments were properly denied.

II. Tbe Sufficiency of tbe Evidence

' Probably the most important issue before us is the sufficiency of tbe evidence to support the jury’s verdicts that the -defendants. were guilty of the crimes charged in tbe indictments.

We turn to a consideration of tbe motions in arrest of judgment and tbe 'sufficiency of tbe evidence to sustain tbe convictions. Tbe evidence was largely circumstantial especially as it related to tbe conspiracy. Tbe burden was upon tbe Commonwealth to overcome tbe presumption of innocence and to establish beyond a reasonable -doubt tbe crimes charged. That tbe evidence was wholly or. largely circumstantial i's not fatal if it appears that the evidence is such as reasonably and naturally justifies an inference of guilt of the accused. and is of such volume and quality as to overcome-tbe presumption of innocence and satisfy the jury of tbe accused’s guilt beyond a reasonable doubt. Com. v. Bausewine, 354 Pa. 35, 40, 46 A. 2d 491; Com. v. Nasuti, 385 Pa. 436, 445, 123 A. 2d 435; Com. v. Clinton, 391 Pa. 212, 218, 137 A. 2d 463; Com. v. Ott, 154 Pa. Superior Ct. 647, 652, 36 A. 2d 838. A conviction will not be allowed to stand if it is based solely upon suspicions and conjectures. Com. v. Clinton, supra, 391 Pa. 212, 218, 137 A. 2d 463. “Where conviction must be based on circumstantial evidence, as it must here, the theme of guilt must flow from the facts and. circumstances proved, and be consistent with them all.” Com. v. Clinton, supra, 391 Pa. 212, 218, 137 A. 2d 463, 466. The Commonwealth, however, is “ ‘. . . not required to present direct and positive testimony of a collusive agreement to do something unlawful. The nature of the crime attempted usually makes it susceptible of no other proof than by circumstantial evidence . . .’ ” Com. v. Musser Forests, Inc., 394 Pa. 205, 211, 146 A. 2d 714, 717.

In a conspiracy trial, where fraud is involved, there is a wide latitude allowed in the introduction of evidence. Consideration should be given to the background of the arrangements made by defendants and their methods of association; where a criminal scheme has numerous actors and shifting scenes of action the conspiracy is often made out by the association of detached facts and by the reasonable inferences deducible therefrom. Evidence of the acts and circumstances in fulfillment of the object of the conspiracy is relevant. Com. v. Berman, 119 Pa. Superior Ct. 315, 326, 181 A. 244; Com. v. Sanderson, 40 Pa. Superior Ct. 416, 472, 473; Com. v. Bartell, 184 Pa. Superior Ct. 528, 548, 136 A. 2d 166; Walter J. Scanlan & Son v. Sherbine, 382 Pa. 376, 379, 114 A. 2d 900. Moreover, “the actions of the conspirators will be sufficient evidence to prove that a conspiracy exists.” Com. v. Musser Forests, Inc., supra, 394 Pa. 205, 210, 146 A. 2d 714, 716.

With these principles in mind we shall consider the evidence. The Manu-Mine Research and Development Company was incorporated in March, 1951. The incorporators included Stickler, Richard Evans, and several other individuals. In its first year of business ManuMine sold paint and preservatives and suffered a loss in all its operations of approximately $300. During this year it had received nominal orders for paints or sealing compounds from the commission. From this time on Manu-Mine experienced progressively greater financial success almost exclusively as a result of business with the commission.³ By October 31, 1953, ManuMine had a total gross business since its inception of $160,000 of which $126,000 was received from the commission. By this date only Stickler and Richard Evans of the original incorporators remained. The favorable relationship between Manu-Mine and the commission became evident about this time. Jerome LaManna who was the accountant for Manu-Mine inquired of Stickler how Manu-Mine obtained work from the commission without bids, and Stickler informed him that the business was not contract work but a purchase order. It is noted in this regard that Richard Evans, vice president and stockholder of Manu-Mine, had no desk at its office and apparently participated in the running of the business only to the extent of attending board meetings and advising Stickler on insurance matters. Nevertheless, he received a salary and bonus commensurate with full time executive employment.

In the year 1954 total sales of Manu-Mine were $815,000 of which $757,000 or 90 per cent was received from the Turnpike Commission. The stockholders at this time, and thereafter, were Stickler, who owned over 50 per cent, Mrs. Stickler, and Richard Evans. For the year 1955 the total amount of business transacted by Manu-Mine was $5,200,000 of which $4,800,000 or 90 per cent was received from the commission. By October 31, 1955, the stock of Manu-Mine, which had a value of $100 in 1951, had a value of $42,600 per share. For the year 1956, the year in which ManuMine was suspended from the February 28th contract Manu-Mine did a total business of $4,500,000 of which $2,800,000 or 63 per cent came from the commission.

In October, 1953, the commission gave a contract to Manu-Mine to study the mining conditions underlying each of four proposed alternate right of way lines for construction of the Northeastern Extension as it crossed the anthracite coal measures and to make recommendations as to the best line to follow. In February, 1954, the commission employed Manu-Mine to furnish an estimate of the value of coal under the proposed route of the Northeastern Extension. On July 7, 1954, the commission entered into a contract with Manu-Mine to patrol the line of the proposed turnpike in the anthracite area and to obtain and furnish aerial photographs of the right of way. On the same date the commission engaged Manu-Mine to do exploratory drilling, research, and engineering work in the anthracite area for the purpose of ascertaining the underground conditions and recommending corrective action.⁴

While the engineering services and work under the contract of July 7, 1954, were being performed by Manu-Mine, the contract which formed the Essential basis for these indictments came-into being. . On February 28, 1955, a contract was. given to Manu-Mine without competitive bidding to lay out and- design ;a slushing program to provide surface support for the turnpike as it crossed the anthracite measures, to ..drill holes into the underground voids at a price of f 12.50 per foot through which material was to be slushed underground, and to supervise the operations of the contractors who were engaged by the commission to supply the material and slush it into the underground voids through the holes drilled by Manu-Mine. The negotiation of this contract had its inception at the instance of Manu-Mine. It appears that in -December, 1954, Stickler, Landsidle, and Harry Luke, project, engineer of Manu-Mine, gave consideration to- proposing to the commission that Manu-Mine do the drilling- for the slushing program. Stickler and Landsidle decided they could do the drilling work, and they prepared a draft of the contract , to submit , to.-the; commission-, Landsidle and Luke met with John D. Paul, assistant chief engineer of the commission, on- December 30, 1954, at which time they discussed the proposed- con? tract and Paul requested that estimates .of the cost of the work be furnished. Early in January, 1955, a meet? ing was held at the Hotel Sterling, in Wilkes-Barre, attended by Evans, Torrance, Stickler,..John D. Paul, and others for the purpose of examining the right of way line of the turnpike and to make some determination with respect to crossing the coal measures. Arthur B. CleaveSj a geologist who was at that time employed by the commission on a part time basis and also by Manu-Mine, testified that at this meeting Evans berated him because a local newspaper had carried a story to the effect that Manu-Mine was going to receive a contract from the commission in connection with the slushing program. The commission, and in particular Evans, was upset by the premature publicity; Evans told Cleaves, “What is the matter with you? I thought you were supposed to see that Manu-Mine didn’t get into any problem's like this.” This unwanted publicity resulted when Luke told a newspaper reporter about January 4, .1955, that Manu-Mine would receive a contract from the commission for this slushing program. Luke furnished the newspaper with certain details of the transaction, such as the fact that the work had to be completed by 1956.

On January 6, 1955, Landsidle submitted to the commission a draft of the contract for services and work in the slushing program, a cost analysis of the various items under the contract, including the $12.50 per foot drilling price, and estimates of the cost of drilling and slushing across the anthracite measures. On January 13, 1955, Landsidle and Luke met with John D. Paul and discussed the time necessary to complete the «slushing program. Paul informed them that their proposed drilling program would take two years and that this was unsatisfactory since construction had to be completed by February, 1956. Landsidle knew then that the proposed drilling program was inadequate.

Thereafter, on February 14, 1955, Manu-Mine submitted supplements to the initial draft of the contract.

The preliminary copy of the contract submitted by Manu-Mine was drafted into final form at the commission, with certain minor changes and the supplements, and was approved by the commission at its meeting on February 28, 1955. After its approval the contract was executed by Evans, Torrance, Theodore S. Paul, the commission counsel, Stickler and Landsidle.

The circumstances of the adoption of the ManuMine contract at the February 28, 1955, meeting of the Turnpike Commission were testified to by Joseph J. Lawler, the then recently appointed Secretary of Highways and ex officio member of the commission. This was apparently the second meeting of the commission that Lawler attended. Prior to the meeting on February 28th, Lawler had not heard of Manu-Mine, did not have knowledge of the work to be performed under this contract, and did not know who the officials of Manu-Mine were or their relationship with Evans. The general provisions of the contract, which was designated as a contract for engineering services, were outlined at the meeting by John D. Paul. In the course of the discussion it was stressed to Lawler that it was important that the contract be approved expeditiously to meet the completion of construction of the Northeastern Extension because of the interest payments to be made on the bonds which had been sold for its construction. Evans and Torrance indicated that it was in the best interest of the commission that the contract be approved and pointed out to Lawler that Manu-Mine had an international reputation, that it was an outstanding firm, and that it was the only firm in existence that was qualified to do that type of work. Lawler stated that he did not question the contract because he respected the other members of the commission since they had experience at the commission and had previously done business with Manu-Mine. The contract was approved by the vote of all of the commissioners, that is, Evans, Torrance, McSorley,..Watson, and Lawler.

Subsequently, Manu-Mine began work under the contract, and" in May, 1955, submitted its .first periodical estimate for payment. It continued. to perform work until its suspension, after an investigation, on February 27, 1956. For the work performed Manu-Mine submitted periodical estimates for payment.in the total amount of $7,679,441.64, of which $6,846,441.64 was paid. Of the amount paid $6,724,718.74- was for drilling at $12.50- per foot.

Under the Act of 1937 which created the Pennsylvania Turnpike Commission and made it. an instrumentality of the Commonwealth^ and the Act of-1951 which authorized the Northeastern Extension to-the Pennsylvania Turnpike, the commission is given the power to contract, provided, however, that contracts relating to construction are required to be approved by ’ the Department of Highways and. such construction must be performed under the- supervision of that department.⁵ For the purpose of scrutinizing construction contracts which required approval of -the Department of Highways and. for the giving of such approval the Department of Highways maintained at the commission a liaison officer. The department kept a file in its own office of commission contracts which it approved. Before giving his approval, the Department of Highways’ liaison officer would' check the contracts,the .quantities, unit prices and similar matters. If the contracts were found to .be satisfactory it was his practice as a rule to approve for the Department. of Highways the construction, contracts entered into by the commission. The liaison officer, Henry .Kloss, a registered professional engineer, in March or April, 1955, ihispeeted- the drilling being done by Manu-Mine on the Northeastern Extension; When he-learned that the drilling was not exploratory drilling, that is test drilling, but'was drilling for purposes of slushing or flushing, he questioned John D. Paul, the commission engineer, concerning the contract undér which the drilling was done. He was informed by Paul that the contract was not necessarily construction but that it was part of an engineering proposition. The ManuMine contract was never submitted to KLoss for. approval; it was not approved by the Department of Highways and was hot on file at the department.

The commission as a general rule uses a standard form of construction contract. The Manu-Mine contract, however, was in the special form of engineering contracts. Engineering contracts as distinguished from construction contracts are not required by law to have the approval of the Department of Highways.

The use of an engineering form for this contract is significant in other respects. It was the general procedure at the commission, notwithstanding the fact that there is no such legal requirement in the statute, that contracts for construction, as distinguished from engineering contracts, be let after bids are obtained. The general practice was that specifications would first be -drawn up and advertisements for' bids be placed. The contract was then awarded to the properly qualified low bidder. This practice was varied in some instances in that some construction contracts as well as engineering and other contracts were negotiated. It is significant that the Manu-Mine contract negotiations were instituted by Manu-Mine without prior specifications having been prepared by the commission. ■

It was also the practice at the commission that the contractor be required to provide a performance bond and a labor and materialmen’s bond, and that the contract contain a provision for the retention of 10 per cent of the periodical payments made during the course of the performance of the contract in order to assure the commission that the work would ultimately be performed and the materials supplied. None of these requirements or provisions were contained in the ManuMine contract. Of the forty-one roadway and tunnel construction contracts let on the Northeastern Extension, exclusive of the Manu-Mine contract, all but one were competitively bid, were drawn to the standard form of construction contracts used at the commission, and had the usual protective provisions. Contracts for the construction of the interchange buildings, for some of the bridges, for roadway lighting, and for maintenance buildings were submitted for bids. Contracts for the supplying of materials were generally not bid because they did not relate to roadway construction as such. And many of the contracts relating to the supplying of equipment and materials that were not competitively bid nevertheless contained the protective requirements of a performance bond, a labor and materialmen’s bond, and a retention clause. It is clear beyond reasonable doubt that the Manu-Mine contract was disguised as an engineering contract to avoid competitive bidding and the scrutiny of the Department of Highways which would have been required in the normal course of events had it been designated and treated as the construction contract that it was. That it was in reality a construction contract except for some minor detail is clear from the evidence. The Commonwealth called a number of expert witnesses of considerable experience in mining and construction engineering in general who testified that the drilling of holes for slushing, constituting the major portion of this contract and for which all but a small amount of the funds paid to Manu-Mine was attributable, was construction work.⁶ The subsequent handling of the Manu-Mine contract by defendants and the commission corroborated the Commonwealth witnesses. Although the contract had been treated as one relating to engineering, services in the negotiations and at its adoption by the commission, it was considered construction in its performance and in the payments made to ManuMine for the work done thereunder. The amounts paid to Manu-Mine were drawn from the construction fund, not from the engineering fund. The periodical estimates for payment submitted by Manu-Mine were submitted on the regular contract form of the commission for construction work and Manu-Mine was referred to therein as the “contractor.” The certificate on each of the periodical estimates signed by Landsidle as general manager of Manu-Mine states that the work has been performed in accordance with the “terms and conditions of the corresponding construction contract documents.” The contract later received a number in the sequence of construction contracts, and the standard construction performance bond and a labor and materialmen’s bond were requested and related back to the time of the contract.

This initial disguise was employed to perpetrate and conceal the fraud of obvious magnitude. When the Northeastern Extension to the Pennsylvania Turnpike was authorized by the. Legislature it became necessary that an engineering report be prepared with estimates Of'- the probable cost of construction in order that bonds could be sold to raise funds for construction. The J::'E.= Greiner Company,- the consulting engineer to the Commission, prepared A report which it submitted to the éommission with a - covering letter of March 22, 1954..- The total initial construction cost of the Northeastern Extension estimated in the budget was $149,-000,000, to which was added a contingency fund in the amount of $19,000,000. The; preliminary budget for construction of the Northeastern Extension had nothing-'.by way of allocation of- funds for drilling and slushing work. The Greiner report stated only that the anthracite measures required some special consideration since'the sub-surface' conditions were indeterminate and there remained a propensity for future subsidence; ' The ’covering letter, however, stated that the problems that might be encountered in the anthracite measures would require some special investigation and study but that they, were not expected to exceed those comparable' in character and magnitude heretofore successfully solved on existing portions of the turnpiké. The cost of .slushing mined areas was- recognized only to the. extent that it was a possible contingency, but there was no estimate of that cost provided. It also appears that in addition to the $19,000,000 contingency, fund there was, by October, 1954, an indicated surplus in construction costs-of $13,000,000 due to the fact that certain types of excavation contracts were actually bid at a lóWér figure than was originally estimated.

'' The estimate of the total cost" of /the drilling and slushing submitted by Manu-Mine with its January 6, 1955, letter indicated- a total cost of the program of approximately $4,120,000 of which approximately $3,-380,000 was for drilling at the rate of $12.50 per foot. When Manu-Mine submitted its first periodical estimate for payment the cost of drilling on two sections was estimated at $2,500,000. Thereafter the total cost of drilling appearing on the periodical estimates increased first to $6,600,000 and then by December, 1955, to $8,600,000. The total cost of drilling and slushing would have been over $13,500,000.

The cost per mile proposed and charged by ManuMine for support of the turnpike in this area was $3,-000,000 as compared to a cost per mile of approximately $1,000,000 for the actual roadway.

The fraud perpetrated by this slushing program was twofold. The slushing program was unnecessary to the extent of about 95 per cent and the price charged by Manu-Mine for drilling was grossly exorbitant. The expert witnesses called by the Commonwealth, who had considerable experience in mining and engineering in the anthracite area, testified that slushing is necessary to render surface support in a first mined area, that is, where pillars of coal are left by the mining operation. But in robbed out areas, that is, where the pillars are removed, the roof of the mine and the surface above it collapses, subsides, and reaches an equilibrium in approximately seven years when the ground comes to rest. The experts stated that the drilling of boreholes and slushing of silt into such areas would not give any additional support to the surface. They testified that the program of Manu-Mine calling for slushing and drilling of boreholes in those areas which had been subjected to second mining, which involved most of the anthracite measures included in the ManuMine program, was unnecessary.⁷ Manu-Mine used a system of controlled slushing in places where the underground voids were accessible, but the largest amount of drilling was done in areas which were not accessible; in such areas generally Manu-Mine drilled holes on a geometric pattern of five holes abreast every fifty feet along the turnpike right of way.⁸ The drilling of holes in a geometric pattern resulted in most of the holes being driven into pillars of coal or otherwise not reaching voids. George D. Oswald, who was employed by the Sullivan Trail Coal Company and Rogers Construction Company in performing the actual slushing into the voids, testified that the holes drilled by ManuMine were collapsed or filled with dirt and rock and unable to take more than a token amount of slushing material. He estimated that approximately 60 per cent of the holes would not take the material or more than a negligible amount while the remaining 40 per cent took considerably less than the estimated amount because the holes were collapsed or blocked. Although the purported purpose of the contract was to drill holes into the voids which were to be filled with silt and thus prevent subsidence, the majority of the holes were useless, except to form the basis for the periodical estimates submitted by Manu-Mine. Even the witness Cleaves, who was called by defendants, testified that the drilling of holes for blind flushing in a geometric pattern on 50-foot centers was absurd. That the drilling and slushing program was unnecessary to the extent that it was performed by Manu-Mine, or even a substantial portion thereof, was clearly demonstrated beyond reasonable doubt.

It thus appears that the drilling and slushing program was unnecessary to the extent of about 95 per cent of that performed by Manu-Mine, while the price charged for drilling was grossly exorbitant.

The draft of the contract sent by Manu-Mine to the commission proposed a price per foot of drilling of $12.50. In justification thereof Manu-Mine submitted a cost analysis showing that at a rate of drilling of 28 feet per day the price represented the cost for each foot drilled plus a profit of 10 per cent. The price charged was directly related to the number of feet that could be drilled in each shift by the drill, which was then designated as a Joy No. 32 air blast drill. Actually, in the major performance of this contract, ManuMine used a much heavier drill, a B 58 drill, which was common to the anthracite area, and which experienced a production rate averaging 179 feet per shift. Some apparently went as high as 448 feet per shift. Since the price had been fixed on the basis of 28 feet per shift per drill, the effect of increasing the production to an average of 179 feet per shift was to tremendously increase the income without a proportionate increase in expenses, leaving a profit far in excess of the 10 per cent submitted in the cost analysis. Under the cost analysis the profit per shift would have been about $32, whereas under the actual performance the profit reached $1,400. The Commonwealth’s expert witnesses testified that the cost per foot of drilling should have been between $4.50 per foot and $5.95 per foot.⁹ Tbe Commonwealth’s witnesses were corroborated by tbe fact that on March 21, 1955, less than a month after the contract with the commission, Manu-Mine bid $3.19 per foot on a drilling job in Carbondale for holes identical in size, to similar depth's through the same type earth strata, through the same type of broken ground, and through multiple seams of coal. ManuMine lost the job because its bid was too high. The exorbitance of the price paid to Manu-Mine by the commission is clear beyond question. When the cost analysis was submitted, Stickler and Landsidle did not intend to use the Joy No. 32 drill, upon which they based the cost analysis, in the performance of this contract.¹⁰ Landsidle testified that the entire drilling arrangement using the heavier B 58 drills was planned and known to Manu-Mine before the signing of the February 28, 1955, contract. Still the $12.50 price based on the false cost analysis was incorporated into the final contract and was the price paid for the drilling billed.

We are of the opinion that the evidence clearly and beyond a reasonable doubt demonstrates the conspiracy to defraud. The lack of direct evidence of any conspiratorial meeting and agreement between the defendants to perpetrate this fraud has been more than adequately replaced by the wealth of circumstantial evidence which is of such volume and quality as to reasonably and naturally justify the inference of their guilt and to overcome the presumption of innocence. Except in two instances the evidence establishes their guilt on all charges.

While there is no direct evidence of an explicit or formal agreement to commit the fraud, such evidence is not essential, for proof of this criminal partnership is the obvious conclusion arising from the circumstances attending the activities of the defendants. Com. v. Musser Forests, Inc., supra, 394 Pa. 205, 146 A. 2d 714. Viewed in its entirety the record demonstrates the subtle but effective manner in which Manu-Mine came to profit to such an extent by its favorable position with the commission. From its humble beginnings Manu-Mine rose with meteoric speed to a position of great financial success almost exclusively through the co-operative attitude of the commission.

In the initial stages of planning for the construction of the Northeastern Extension the problem of subsidence was not expected to be one of significant magnitude. But when Manu-Mine had entered the scene and began its initial exploratory work the problem of subsidence and what to do about it began to become a major problem. Without prior specifications drawn by the commission or its staff, Manu-Mine proposed the program which ultimately worked to its great profit. Its proposal and the contract it obtained as a result thereof were cleverly disguised as a rather innocuous appearing engineering contract, when in reality the essence of the contract was construction work. So certain was the fact that Manu-Mine would obtain this contract that it indulged itself an anticipatory announcement in the newspaper article released prematurely by Luke, which so dismayed Evans. The contract was then expeditiously run through the formality of the February 28, 1955, meeting with the aid of Evans and Torrance accompanied by their assurances that the work was necessary and that Manu-Mine was the only firm to do it. Manu-Mine then began work under the contract. It used equipment which had a drilling rate far in excess of the 28 feet per day upon which its drilling price of $12.50 per foot was based. Even the Joy No. 32 drill mentioned in the cost analysis produced an average of 51 feet and a maximum of 78 feet per shift. Manu-Mine drilled holes which served no useful purpose other than to form the basis for periodical estimates for payment. The vast majority of the holes drilled were unnecessary, would not take material, and were of no benefit in the slushing program. For these as well as the few holes that had usefulness it charged the exorbitant price which had fraudulently been obtained and justified by the false cost analysis.

Evans, who had been a commissioner since May 17, 1939, is inextricably a principal in the conspiracy. The substantial success of Manu-Mine, which was owned largely by his son and the nephew of his wife, resulted solely from business given to it by the commission without competitive bidding. His introduction of the commission geologist Cleaves to Stickler, his permitting Cleaves to be employed by both the commission and Manu-Mine, his berating of Cleaves, and his evident disturbance because of the premature publicity given the Manu-Mine contract, his conduct at the February 28, 1955, meeting where together with Torrance he impressed upon Lawler the urgency of letting this contract to Manu-Mine (the company of reputed international fame), all taken together with the circumstances of the disguise of this contract, the actual futility of tbe program, and tbe exorbitant price charged, more than adequately establish bis guilt.

Torrance, who bad been a commissioner since September 2, 1943, is likewise shown to have been one of tbe participants in tbe conspiracy. Torrance attended tbe January, 1955, meeting at tbe Hotel Sterling in Wilkes-Barre. Torrance together with Evans urged at tbe February 28th meeting tbe adoption of tbe Manu-Mine contract and recommended tbe Manu-Mine company as one of international repute. Torrance accepted a gift certificate from Manu-Mine at Christmas, 1954, and earlier bad permitted Manu-Mine to improve a trench silo on bis farm without cost to him. Torrance admitted that be knew that Stickler was tbe nephew of tbe wife of Evans, but denied knowing that Bichard Evans was connected with Manu-Mine.¹¹ Considering tbe many years of experience that Torrance bad at tbe commission and bis knowledge of its practice to have construction contracts competitively bid, considering tbe fact that Torrance knew of the relationship between Evans and Stickler, considering his friendly relationship with Stickler by reason of the work performed on Torrance’s farm and the gift certificate, considering Torrance’s joining with Evans in impressing Lawler with the urgency of the work and the purported good reputation of Manu-Mine in this field, together with the circumstances of the disguise of this contract, and the actual futility of the program, the guilt of Torrance is clearly established. He participated not only passively in his failure to question the contract or insist upon the customary procedures and protective provisions but he actively participated in its adoption.

By May 25, 1955, when Manu-Mine submitted its second periodical estimate for payment showing a total drilling to that time of over 21,992 feet, it was obvious that the rate of drilling had substantially increased, that this was a construction job, and that the total cost of the drilling program was becoming excessive. The magnitude of this enterprise was evident then and should have provoked inquiry on the part of Evans and Torrance.¹² Their making payments thereon and thereafter is an added circumstance demonstrative of their guilt in the conspiracy.

The defendant Paul J. McNeill was the finance director of the commission during the period of negotiating, obtaining, and performing the Manu-Mine contract. The evidence, however, fails to show that Mc-Neill participated in any way in the negotiation and the obtaining of the Manu-Mine contract which is one of the essential fraudulent acts charged in the indictment. While it is true that a person who is not initially involved in the conspiracy may join that conspiracy in some later stage of its performance (Com. v. Rogers, 187 Pa. Superior Ct. 471, 482, 144 A. 2d 662), the evidence does not establish anything on the part of McNeill which aided in perpetrating the fraud or its concealment. On the contrary the evidence shows that McNeill recognized the contract as one for construction, set it up in the budget as being paid out of the construction fund and at his instance required Manu-Mine to furnish a performance bond and a labor and materialmen’s bond for the protection of the commission. That he approved the payments to be made without the usual 10 per' cent retention and on the basis of the billed footage may be explained as to him by the fact that he did not participate in the initial conspiracy to obtain the contract and was apparently applying the contract literally according to its provisions. In fact, a Commonwealth witness, Franklin V. Summers, assistant director of finance under McNeill, testified that he approached McNeill when he noticed that C. J. Guldin, district construction engineer, was deducting a 10 per cent retention, and that he, Summers, stated to McNeill that according to the way he read the contract the retention was not called for; Mc-Neill simply confirmed his interpretation of the contract in this respect. The actions of McNeill were not entirely consistent with his guilt, but in some respects may have indicated an attempt to protect the interest of the commission. If McNeill were acting in furtherance of the conspiracy and for its concealment, he probably would not have given the contract the attributes of a construction contract or have belatedly required the protective bonds at a cost of $30,000 to Manu-Mine. Although we recognize that McNeill’s acts and conduct displayed questionable judgment and created a suspicion as to his intentions and his connection with Manu-Mine, we cannot say that they established his guilt as charged in the indictment beyond a reasonable donbt. The judgment of sentence as to McNeill on the indictment charging conspiracy will be reversed and defendant will be discharged.

Stickler and Landsidle are so obviously implicated as to require little comment. Stickler built his company and his own personal profit almost at the sole expense of the commission. Stickler was quick to recognize the profitable possibilities available at the commission. The series of contracts let to Manu-Mine in connection with the selection of the route across the anthracite coal measures, the patrolling thereof, the preparation of data and the making of exploratory survey all evidence the favoritism utilized by Stickler. Landsidle, although he had no ownership interest in Manu-Mine, was its general manager and actively participated in the project resulting in the defrauding of the commission. Stickler and Landsidle discussed the drilling work and decided that they would propose to the commission that they be given the contract; they negotiated with the commission and when they were questioned about the price proposed for drilling they submitted a cost analysis that was fictitious and based upon a drill which they did not at that time intend to use in the performance of the work. They performed a grossly excessive amount of drilling which was useless to the extent of as much as 95 per cent and for this they charged the commission the exorbitant price obtained by their fraudulent cost analysis. They claimed to have been performing engineering work, still when they realized the very substantial increase in the drilling rate and the sharp rise in profit therefrom they as engineers did not attempt to inform the commission of this development.

Both Stickler and Landsidle profited to a large extent from their fraud. As we have previously indicated Manu-Mine had a profit after all expenses amounting to approximately $4,000,000 under this contract, or more than 100 per cent over cost. If overhead expenses, which included substantial bonuses to employes, advertising costs, and other such expenses, are excluded, the operating profit was over $5,000,000. Included in some of the overhead expenses was furniture in the amount of $10,000 purchased by Stickler for his home; gifts to Torrance and John D. Paul; a portion of the cost of two fur coats for the wife of Stickler; and a trip by Stickler and his family to Honolulu. For the year 1955 Stickler received a salary of $32,300 plus a bonus of $35,000; Eichard Evans received a salary of $10,500 and a bonus of $20,000; and Landsidle received a salary of $13,496 and a bonus of $26,700. As we have said, the stock owned by Stickler, his wife, and Eichard Evans increased from $100 per share to over $42,000 per share. That Landsidle was not an owner of Manu-Mine is unimportant. He actively participated with Stickler in the negotiation of this contract; he signed and submitted the fraudulent cost analysis; he signed and submitted the periodical estimates for payment; and he personally profited from the fraud through his substantial salary and bonus.

The evidence is sufficient to convict Stickler and Landsidle of conspiracy; it sustains as well their convictions of the crime of fraudulent pretense in obtaining the contract and in obtaining or attempting to obtain payments thereunder. The crime of fraudulent pretense is completed when there co-exists a false pretense, an obtaining of property of value thereby, and an intent to cheat and defraud. Com. v. Hancock, 177 Pa. Superior Ct. 585, 592, 112 A. 2d 407. In the course of negotiating for this contract Stickler and Landsidle submitted at the request of John D. Paul, the commission engineer, a cost analysis to substantiate their price of $12.50 per foot of drilling. It is unnecessary to detail the matters outlined in that analysis except to state that it purported to justify the $12.50 per foot cost of drilling on the basis of the actual cost to perform the work with a Joy No. 32 drill at a rate of 28 feet per drill per shift plus a profit of 10 per cent. The cost analysis was false. Stickler and Landsidle submitted the analysis at a time when they knew they were not going to use the drill; they knew prior to the adoption of the contract that they were going to use. a heavier drill and in fact had planned for its operation. They knew that the work could not be accomplished by the drill that they proposed although it was submitted none the less in justification of the price. “A criminal false pretense has been said to be ‘the false representation of an existing fact, whether by oral or written words or conduct, which is calculated to deceive, intended to deceive, and does, in fact, deceive, and by means of which one person obtains value from another without compensation.’ ” Com. v. Gross, 161 Pa. Superior Ct. 613, 618, 56 A. 2d 303, 306. The submission of a cost analysis in justification of a price about to be inserted in a contract is a representation of an existing fact; it is a representation of the facts and circumstances of the operation upon which the price is based. Cf. Com. v. Hancock, supra, 177 Pa. Superior Ct. 585, 593, 112 A. 2d 407. Both Stickler and Landsidle prepared and were familiar with the cost analysis which was signed by Landsidle. It was admitted that they intended the commission to rely upon the analysis. An additional consideration is the fact that in August, 1956, after Manu-Mine had been suspended from the work, Stickler, Landsidle, and Luke prepared another cost analysis in justification of the $12.50 price. That Stickler and Landsidle intended to deceive and that they did deceive are clear beyond question; the $12.50 price which they had “justified” was incorporated into the agreement. Stickler and Landsidle obviously obtained something of value; they obtained initially the contract and thereafter, because of their initial fraud, continued to obtain payments under the periodic estimates. As to those estimates which were not paid, they were guilty of an attempt to commit the crime of fraudulent pretense.

The guilt of Evans and Torrance on counts 1 and 2 of the misbehavior in office indictments is substantiated by the evidence. Both Evans and Torrance were charged with misbehavior for corruptly participating in the negotiation and obtaining of the Manu-Mine contract, for willfully and corruptly permitting the Manu-Mine contract to become effective thereafter, and for permitting payment of vast sums of money pursuant thereto. Misbehavior in office is a common law offense. Com. v. Brownmiller, supra, 141 Pa. Superior Ct. 107, 120, 14 A. 2d 907. The offense occurs when there is a breach of a positive statutory duty or the performance by a public official of a discretionary act. with an improper or corrupt motive. Com. v. Peoples, 345 Pa. 576, 579, 28 A. 2d 792; McNair’s Petition, 324 Pa. 48, 55, 187 A. 498. Evans and Torrance here were charged with the performance of a discretionary act with an improper or corrupt motive. A discretionary duty must be exercised with reason as opposed to caprice or arbitrary action; the term discretion “ ‘imports the exercise of judgment, wisdom, and skill, as contradistinguished from unthinking folly, .heady violence, and rash injustice.’ ” Com. v. Brownmiller, supra, 141 Pa. Superior Ct. 107, 120, 14 A. 2d 907, 913. In its penal sense misbehavior in office does not encompass mere errors in judgment or departures from sound discretion, but an official must perform those official duties which require the exercise of a sound discretion to the interest of the Commonwealth and hot capriciously, arbitrarily, and with a willful and corrupt design. Com. v. Brownmiller, supra, 141 Pa. , 14 A. 2d 907. The willful and corrupt motive need not arise from personal benefit. See Com. v. Brownmiller, supra, 141 Pa. Superior Ct. 107, 121, 122, 14 A. 2d 907. In this instance Evans and Torrance, both of whom had many years of experience at the commission, permitted the blatant disguise of this contract, ignored their normal protective procedures, and in fact actively participated in inducing Lawler to go along with the contract by stressing its urgency and the qualifications of Manu-Mine to do the work. This they did for the benefit of Evans’ relatives, arbitrarily casting aside what should have been a proper concern for the interests of the commission. There is no reasonable conclusion other than that they favored Manu-Mine in this contract, as they had with other contracts in the past, without regard to their official obligation to the commission. This was willful and corrupt.

It is also- clear that the conspiracy charge and the charges of misbehavior in office were separate and distinct and did not merge or require an election on the part of the Commonwealth. The charges and proofs of misdemeanor in office were broader than the statutory offense of conspiracy. See Com. v. Falls and Sykes, 107 Pa. Superior Ct. 129, 134, 162 A. 482; Com. v. Kline, 107 Pa. Superior Ct. 594, 604-607, 164 A. 124; Com. v. Ackerman, 176 Pa. Superior Ct. 80, 83, 106 A. 2d 886. The fact that both offenses related to and grew out of one transaction is not controlling; the test is whether the proof of each charge requires an additional fact which the other does not. Com. v. Falls and Sykes, supra, 107 Pa. Superior Ct. 129, 133, 162 A. 482.¹³

Torrance was also charged, in the third count of the indictment charging misbehavior in office, with hampering, obstructing, and corruptly interfering with the proper and legitimate investigation of the contractual activities of Manu-Mine with the commission. Torrance argues that there is no such crime either common law or statutory. In the alternative it is argued that if there is such a crime the evidence does not sustain his conviction thereof. The Commonwealth contends that the indictment charges a common law crime under the doctrine of Com. v. McHale, 97 Pa. 397, 408. The doctrine of the McHale case is based upon the authority of Blackstone and propounds a comprehensive classification of conduct which may amount to common law offenses. According to this doctrine conduct which especially affects the Commonwealth, which is against the public peace, morals, or economy, or the due regulation and domestic order of the state, is considered a common law offense. It is stated that “ . . the individuals of the state like

members of a well-governed family, are bound to conform their general behavior to the rules of propriety, good neighborhood and good manners, and to be decent, industrious and inoffensive in their respective stations. This head of offenses must therefore be very miscellaneous, as it comprises all such crimes as especially affect public society, and are not comprehended under any of the four preceding series [of common law offenses].’ ” Com. v. McHale, supra, 97 Pa. 397, 408. Conduct is indictable as a common law offense under this doctrine even in the absence of specific common law precedent or statutory declaration. See Com. v. Cano, 182 Pa. Superior Ct. 524, 532, 533, 128 A. 2d 358. The McHale doctrine is applicable to such conduct which is inherently offensive to the public peace, morals, and economy. Com. v. Cano, supra, 182 Pa. Superior Ct. 524, 535, 128 A. 2d 358. We think that the willful and corrupt hampering, obstructing, and interfering with a proper and legitimate investigation to the scandal, dishonor, and prostitution of public justice amount to a common law offense within the doctrine of the McHale case.

However, we are of the opinion that the evidence does not sustain the charge against Torrance in this instance. It appears that on February 27, 1956, the commission met with the Governor of the Commonwealth in connection with the investigation of the slushing program. At this meeting the Attorney General expressed the desire to coordinate the investigations of the contracts for drilling, casing and slushing which were being conducted (1) by the State police, (2) under orders of the Attorney General, and (3) by the Secretary of Mines and Mineral Industries. Commissioners McSorley and Lawler were in general agreement with the plan but Torrance took exception to this method of procedure, and stated that the investigation should be made by the commission itself in as much as the building of the turnpike system was a responsibility of the commission. At the time of this meeting the Department of Mines had already begun its investigation. Thereafter, on March 5, 1956, McSorley took virtually the same position in a letter written to the Attorney General. There is no indication that Torrance did not otherwise co-operate in the investigations that were being conducted or that the investigations were hampered, obstructed, or subjected to interference. The Commonwealth also relies on the. fact that Torrance sent copies of the reports of the investir gations by the Department of - Mines and the- State police to Manu-Mine. This was done, however,, with the knowledge and approval of the commission- counsel or the Commission Chairman McSorley, and was made known at the commission meetings.'. The evidence does not establish the offense charged; the conviction on count 3 of the indictment charging Torrance with' misí behavior in office will be reversed. .. ...

III. Alleged Trial Errors

: Numerous matters raised on these appeals relate to alleged trial errors and are set forth in support of defendants’ motions for new trial. Included in this phase of the case are errors alleged to have occurred in the refusal of bills of particulars, in the consolidation of indictments for trial,' in refusing defendants requests for offers of proof, in the admission of evidence, in the refusal of defendants’ points for Charge, and in the charge of the court.

In reviewing the alleged errors it is well to recognize that “Mere error in the abstract is not sufficient to warrant a retrial, and where the conclusion is inescapable that the error did not influence the - jury against the accused, or deprive him of his legal right to a fair trial, a new trial will not be granted.” Com. v. Linkowski, 363 Pa. 420, 424, 70 A. 2d 278, 280. The errors must be found to have been prejudicial.

Defendants assert that it was prejudicial to refuse their motions for bills of particulars. Where an indictment is sufficient as a matter of law but does not furnish sufficient information to enable the defendant to prepare his defense, the court may order a bill of particulars to be filed. Com. v. New Bethlehem Borough, 15 Pa. Superior Ct. 158, 164; Com. v. Hershman, 171 Pa. Superior Ct. 134, 139, 90 A. 2d 314. The indictments in the instant case are sufficient in law and set forth specifically the offenses charged. A reading of the indictments demonstrates that the crimes are clearly defined, and that the details thereof are set forth with reasonable particularity. A bill of particulars, even when required, is not meant to be a specification of every item of evidence to be adduced by the Commonwealth. Com. v. Buccieri, 153 Pa. 535, 547, 26 A. 228.¹⁴

Upon motion of the district attorney, to which the defendants objected, the court permitted the consolidation of the indictments for trial. The general rule is that the court in its discretion may consolidate two or more indictments for trial where the offenses charged are similar, related, or connected unless substantial prejudice will result to the accused. Com. v. Krzesniak, 180 Pa. Superior Ct. 560, 567, 119 A. 2d 617. The consolidation of a conspiracy indictment with other related charges will normally not be disturbed where it appears the evidence that was admissible on the crimes charged in the other indictments tended to support the conspiracy charge. Com. v. Dixon, 179 Pa. Superior Ct. 1, 5, 115 A. 2d 811. The consolidation for trial of indictments charging conspiracy and misdemeanor in office has been recognized. Com. v. Ackerman, supra, 176 Pa. Superior Ct. 80, 85, 106 A. . And, in general, defendants charged with conspiracy should be tried together. Com. v. Antico, 146 Pa. Superior Ct. 293, 311, 22 A. 2d 204.

Defendants contend that the conspiracy indictment and the fraudulent pretense indictment against Stickler and Landsidle were repugnant, and that the joint trial of these indictments resulted in prejudice in the admission, segregation, and limitation of various portions of evidence. The conspiracy indictment charged the nine defendants with an unlawful combination to defraud the commission, particularly with respect to the Manu-Mine contract of February 28, 1955, and the payment of money in accordance therewith. The fraudulent pretense indictment, in the first count, charged that Stickler and Landsidle made willful misrepresentations to the commission, its employes, and agents as a result of which they unlawfully obtained the February 28th contract from the commission, and the signatures thereto of Evans, Torrance, and Theodore S. Paul with intent to cheat and defraud the commission. The indictments are not repugnant simply because Evans and Torrance were named as principals in the conspiracy indictment and as the agents of the commission, who signed the same contract, in the fraudulent pretense indictment. The defrauded party in the latter indictment was the Pennsylvania Turnpike Commission, a separate legal entity. Act of May 21, 1937, P. L. 774, §4, 36 PS §652d. Evans and Torrance were not the victims in the fraudulent pretense indictment; their signatures represented the legal authority of the commission, which they were charged with abusing. An entity such as the commission must of necessity act through it officers. But, if a third party colludes with some or all of the officers of the entity to obtain a contract signed by the officers on its behalf, there is none the less a fraud perpetrated upon the entity. The collusion of the officers or agents of the commission with third persons is not attributable, to the commission. See Com. v. Sanderson, supra, 40 Pa. Superior Ct. 416, 469; Com. v. Kirk, 141. Pa. Superior Ct. 123, 127, 14 A. 2d 914; Todd v. Shelly, 384 Pa. 423, 429, 120 A. 2d 906; Fifth Street Building and Loan Association v. Kornfeld, 315 Pa. 406, 416, 172 A. 703. See, also, Fletcher Cyclopedia, Corporations, vol 3, §804, p. 54.

Since the indictments charge offenses which were not repugnant but in fact part of and related to the general scheme, their consolidation was not an abuse of discretion. The evidence submitted with respect to the fraudulent pretense indictment would.in material respects be relevant and material to the conspiracy charge. “Although the offense of criminal conspiracy is complete the moment the agreement is made whether acts be done in pursuance of it or not, it is still proper for the Commonwealth- to show subsequent acts and circumstances in fulfillment of the conspiracy.” Com. v. Bartell, supra, 184 Pa. Superior Ct. 528, 548, 136 A. 2d 166, 177. The fraudulent pretense indictment charged the separate crimes of Stickler and Landsidle which were among the means used to accomplish the object of the conspiracy. The crimes of conspiracy and fraudulent pretense are separate and distinct. Com. v. Kline, supra, 107 Pa. Superior Ct. 594, 599, 164 A. 124; Com. v. Downer, 159 Pa. Superior Ct. 626, 633, 49 A. 2d 516.

Evans and Torrance assert that count 1 of the fraudulent pretense indictment is diametrically opposed to count 1 of the indictments charging misbehavior in office which charge misbehavior. in participating in the negotiation and execution of the Manu-; Mine contract. These indictments are not repugnant for the reasons just discussed. Count 1 of the fraudulent pretense indictment charges that the' commission,, not Evans and Torrance,, was defrauded by reason of false pretense. The same is true on the claim that count 2 of the indictments charging misbehavior in office and the balance of the counts in the fraudulent pretense indictment are repugnant. Count 2 of the indictment charging misbehavior' in office charges misbehavior in permitting the Manu-Mine contract to become effective and in permitting payments to be made thereunder. Counts -2 to 17 of the fraudulent pretense indictment charged Stickler and Landsidle with obtaining the various periodical payments under the contract by means of false=pretense. As we view it, these charges against Stickler and Landsidle and the charge against Evans and Torrance-in permitting payment are part and parcel of the same transaction, the means used to accomplish the object of the conspiracy. That the individual role of Evans, Torrance, Stickler, and Landsidle may have resulted in separate crimes growing out of the general conspiracy is no cause for complaint. -

. The court below stated in its opinion:¹⁵ “In the cases at bar the four indictments involve only three types of offenses which ‘either grew out of the alleged conspiracy or otherwise were closely related.’ The con-, spiracy to cheat and defraud the Pennsylvania Turnpike Commission of its moneys was accomplished when Stickler, Landsidle and Bichard Evans obtained huge sums of money by fraudulent pretenses. By their misbehavior in office Commissioners Evans and Torrance contributed to the accomplishment of the object of the conspiracy.”

Torrance further claims that the consolidation of the indictments for trial resulted in prejudice in the admission of evidence on the misbehavior indictment. It is alleged that certain evidence was admissible only on the conspiracy charge but that the trial judge refused to limit such evidence to that charge.

It is generally recognized that where a separate offense is related to, or grows out of, the conspiracy the evidence admissible on the separate offense tends in most instances to support also the conspiracy indictment. See Com. v. Dixon, supra, 179 Pa. Superior Ct. 1, 5, 115 A. 2d 811; Com. v. Quinn, 144 Pa. Superior Ct. 400, 404, 405, 19 A. 2d 526. But the novel question raised here by Torrance is whether the converse is true, that is, whether the evidence admissible on the conspiracy charge is also itself admissible on the separate indictments, and, if not, whether it was error not to limit the evidence to the conspiracy charge. The answer must depend upon the particular offense charged in addition to the conspiracy. Here two counts of the indictment charging misbehavior in office against Torrance concerned his participation in the conspiracy in the negotiation and procurement of the Manu-Mine contract, and in his permitting payments to be made ais a result of the conspiracy. Evidence which would establish the conspiracy, within which Torrance was an actor, was relevant therefore to the separate misbehavior charge involving his participation therein. It was not necessary that every item of evidence on the conspiracy charge be directly applicable to the misbehavior charge, or otherwise require a limiting instruction by the trial judge. The crimes, although separate and distinct, were related. To establish the conspiracy was to aid in establishing that Torrance, who participated therein, had misbehaved in office in respect to the negotiation and execution of the contract and the making of payments thereunder.

Evans raises a similar contention, except that in his case the trial judge repeatedly instructed the jury that certain evidence was not to be considered on the misbehavior indictment. Generally, the trial judge gave these instructions when the evidence related to matters occurring after Evans left the commission upon the expiration of his term. Evans now contends that as the evidence in many instances was limited to the conspiracy charge it could only have the effect of confusing the jury; he thus concludes that the indictments should not have been consolidated. We see no such results. Evans admits that the rulings were “correct from a legal standpoint.” The repeated instructions could only have had the effect of impressing upon the jury that Evans was not to be held on the misbehavior charge for matters occurring after he left office.

Stickler and Landsidle raise a like contention with respect to the fraudulent pretense indictment. They likewise argue that the consolidation was prejudicial because certain evidence in the conspiracy case prejudiced them on the fraudulent pretense indictment notwithstanding the limiting instructions of the trial judge. Our examination of the record discloses no substantial harm resulting in this manner from the consolidation. One instance indicated by defendants concerned the introduction into evidence of the testimony of John D. Paul before the investigating grand jury as an admission against himself. The trial judge repeatedly cautioned the jury that the testimony was to be considered against Paul and no other defendant. Another instance concerned the testimony of five Manu-Mine inspectors as to certain irregularities in the slushing program. This testimony, offered in rebuttal, was limited to contradicting certain defense witnesses. It was thoroughly and repeatedly explained to the jury that it was received solely for that limited purpose. We cannot see how Stickler and Landsidle were prejudiced under the circumstances. The instructions were adequate and clear. For the most part the evidence demonstrated the general course of conduct tending to the same general end. Com. v. Dixon, supra, 179 Pa. Superior Ct. 1, 5, 115 A. 2d 811.

! • That the consolidation of these four indictments, charging in substance three offenses, did not result in Such confusion of the jury as to convict regardless of the evideiicé is indicated to some degree by the fact that four of the nine defendants, were acquitted in the trial. Cf. Com. v. McHugh, 187 Pa. Superior Ct. 568, 574, 145 A. 2d 896.

A related contention of defendants is that the verdicts oh the fraudulent pretense indictment and the verdicts oh the conspiracy indictment are inconsistent and repugnant because Evans and Torrance are alleged tó be the victims in the fraudulent pretense indictment and the conspirators in the other. We have shown, in discussing the consolidation of these indictments for trial,'that they are not inconsistent or repugnant. It was not necessary to a conviction of Stickler and Land-sidle on- the fraudulent pretense indictment that the jury find -that Evans and Torrance were deceived by the- false representations. The indictment charged that the willful misrepresentations were made to the commission, its employes, and agents. Evans and Torrance ' were not the only agents of the commission. Moreover, the jury acquitted Theodore S. Paul whose signature also appeared on the contract. Having found that Theodore S. Paul was not a conspirator, the jury may .have found that he, as- well as other employes of the commission, was deceived by the false representations. ■ • • "

Defendants allege error in the refusal of the trial judge to require the Commonwealth to make offers of proof before reception of the testimony of all but the first few witnesses. Within the discretion of the trial judge, a party producing a witness may be called upon to'state what is proposed to be proved by his testimony so that the court may determine whether it will be incompetent, irrelevant, or inadmissible. Morgan v. Browne, 71 Pa. 130, 136; Scott v. Lindgren, 97 Pa. Superior Ct. 483, 487. See, also, Henry, Pennsylvania Evidence, vol. 2, §727, p. 157. Tbe practice of requirr ing an offer is intended to aid tbe fair- and' orderly trial of tbe case; its practical enforcement depends largely upon tbe circumstances at tbe moment tbe question arises. Myers v. Kingston Coal Company, 126 Pa. 582, 601, 17 A. 891. Where persistent offers of proof are requested and would bave tbe effect, if granted, of unnecessarily delaying tbe trial and disturbing its normal course, refusal would not appear to be improper. Tbe court below in its opinion explained tbe exercise of discretion: “We were convinced at tbe trial that to require the Commonwealth to make an offer before affording it an opportunity to' ask a question on tbe subject concerning which the witness was called, would bave obstructed rather than aided tbe fair and orderly progress of tbe trial. Moreover, in a trial lasting over seven weeks it is not likely that tbe defendants were taken by surprise because of the lack of offers.” It is obvious that requiring an offer of proof before each Commonwealth witness testified would prolong tbe trial unreasonably. Although defendants may bave been refused offers of proof prior to tbe testimony of each witness, they still bad tbe right to object to specific questions asked of tbe witnesses when it appeared that such questions might elicit incompetent, irrelevant, or inadmissible testimony. We are of tbe opinion that tbe trial judge did not abuse bis discretion in refusing tbe requests for offers of proof. See Hill v. Canfield, 56 Pa. 454, 457.

Defendants next allege certain errors in tbe admission of evidence.

Defendants contend that tbe trial judge erred in permitting two witnesses to testify as to the law of Pennsylvania applicable to tbe commission and its power to contract. At the beginning of the trial, the Commonwealth called Harrington Adams, a deputy attorney general, who read into evidence section 4 of the Act of May 21,1937, P. L. 774, No. 211, 36 PS §652d, which created the Pennsylvania Turnpike Commission and made it an instrumentality of the Commonwealth. Adams also read the provision in section 4 giving the commission the power to contract, with the proviso that contracts relating to construction shall be approved by the Department of Highways and that such construction be under the supervision of the Department of Highways. Adams then read into evidence the portions of the Act of September 27, 1951, P. L. 1430, as amended, 36 PS §660.2, 660.6, which created the Northeastern Extension of the Pennsylvania Turnpike and gave the commission the power to contract for its construction subject to the same approval and supervision by the Department of Highways.

John R. Rezzolla, Jr., chief counsel for the Department of Highways, also testified as to the statute. Over objection, Rezzolla read into evidence sections 401 to 406 of the State Highway Law, Act of June 1, 1945, P. L. 1242, 36 PS §§670-401 to 670-406, relating to the construction of State highways, to the requirement of advertising for proposals, to the awarding of contracts on competitive bids, and to the manner of execution of construction contracts. Over objection, Rezzolla explained the procedures within the Department of Highways relative to advertising for bids and the method of awarding contracts on bids. Likewise, Rezzolla testified that, as to contracts of the commission which are required to have the approval of the Department of Highways, the department has a liaison officer at the commission whose duty it is to render such approval, and that the Manu-Mine contract was not approved in that manner. On cross-examination, Rezzolla testified that the standard requirements in the State Highway Law, such as advertisement for bids, apply only to contracts of the Department of Highways and do not set forth the standards to be followed by the commission in awarding its construction contracts. He further testified that none of the construction contracts of the commission approved by the Department of Highways were handled by the department in the same manner as its own construction contracts; and that the approval by the Department of Highways of commission contracts did not necessitate such procedure.

It is the general rule, as contended by defendants, that the trial judge, not expert witnesses, should give instructions to the jury on domestic law and its application to the case. Com. v. Giltman, 64 Pa. 100, 105; Com. v. Walker, 178 Pa. Superior Ct. 522, 528, 116 A. 2d 230. But we perceive no harmful effect in having the actual provisions of the law read into evidence, as here, from the pamphlet laws. Contrary to defense contentions, the witnesses, by reading the provisions to the jury, did not give an opinion or interpretation of the laws as applied to this case. While it may also be true that the provisions of the State Highway Law, as read by Rezzolla, were not applicable to commission contracts, this fact was brought out by defendants on cross-examination and cured any error in permitting that law to be read. It is our opinion that any error in this instance was a harmless one. Com. v. Fugmann, 330 Pa. 4, 17-19, 198 A. 99. The trial judge did not charge the jury that the provisions of the State Highway Law applied to commission contracts; in fact, he affirmed and read a point of defendants for charge to the effect that the provisions of the State Highway Law relating to advertisement for bids did not apply to the commission.

The Commonwealth issued a subpoena to Clyde J. Siegfried, controller of Manu-Mine, to present certain corporate books and records. The records were- in tbe possession of Stickler. When Siegfried was called as a witness and questioned as to whether he had such records, counsel for Stickler stated that it was not desired that anything be concealed and that the records shown to be relevant would be produced. The trial judge ordered the records requested by the Commonwealth to be produced and the witness thereafter testified therefrom. It is alleged that the manner of calling for the production of the records was prejudicial, and that the trial judge had no power to order a defendant to produce' corporate records.

It is true of course that the Commonwealth may not call upon a defendant, in the presence of the jury, to produce incriminating evidence against himself. Com. v. Valeroso, 273 Pa. 213, 216, 116 A. 828; Com. v. Hubbard, 65 Pa. Superior Ct. 213, 216. But the privilege against self-incrimination in this respect does not. extend to corporate records. “It is settled that a corporation is not protected by the constitutional privilege against self-incrimination. A corporate officer may not withhold testimony or documents on the ground that his corporation would be incriminated. : . . Nor may the custodian of corporate books or records withhold them on the ground that he pérsonally might be incriminated by their production.” Curcio v. United States, 354 U. S. 118, 122, 77 S. Ct. 1145, 1 L. Ed. 2d 1225, 1229. The books and papers of a corporation are not the property of the officers and may be used against them. McElree v. Darlington, 187 Pa. 593, 595, 41 A. 456.

That the colloquy between counsel' and the trial judge took place before the jury' was due primarily to- counsel. Counsel interrupted the questioning of Siegfried relative to the subpoena by stating that the documents were in the possession of Stickler, and that they would be produced if shown to be relevant. Counsel -could easily have made the remarks at side bar beyond the hearing of the jury if it were so desired. The contention is without merit.

It is next argued that the trial judge erred in admitting into evidence as business records the engineering tabulations attached to Commonwealth’s exhibits 30 to 49, inclusive, and in .the use made of these exhibits. Exhibits 30 to; 49 are the periodical estimates for payment submitted by Manu-Mine under the contract. Attached to those periodical estimates are the measurements taken by the commission inspectors which indicate that their measurements of certain holes showed a depth short of. the footage billed by Manu-Mine.. Despite the short-off billed footage appearing on the estimates, MqnmMine was paid for the amount billed without deduction of the shortage. On the basis of the exhibits and the testimony in connection therewith, the trial judge submitted to the jury the question whether Manu-Mine had sent in estimates and received payments for- holes actually short-of-billed footage.,

It is contended that these tabulations were improperly admitted as business records; that the testimony actually indicated that there was no shortage: in the. drilled footage; and that to submit this question to the jury was to permit a conviction .of defendants on a charge for which they were not indicted.

We think the tabulations were properly admitted as business records under the Uniform Business Records as Evidence Act of May 4, 1939, P. L. 42, 28 PS §91b. Business records are competent evidence, in so far as they are relevant, if they are propérly authenticated.' The Act does not make records relevant or competent per se. It must be shown that the evidence has relevancy to the-issue being tried, and the trial judge must be satisfied that the sources of information, method, and time of preparation were such as to justify its admission. Haas v. Kasnot, 371 Pa. 580, 586, 92 A. 2d 171. The custodian or other qualified witness must testify to the identity of the document, the mode of its preparation, and whether it was made in the regular course of business at or near the time of the event. The engineering tabulations attached to the periodical estimates meet these tests of authenticity. The witness Franklin V. Summers, who was the assistant director of finance and audit under Mc-Neill at the time of the Manu-Mine project, testified that these engineering tabulations accompanied the periodical estimates submitted by Manu-Mine to the commission, and that they were prepared by the district construction engineer, C. J. Guldin, or under his direction. Guldin testified that he attached the engineering tabulations to the Manu-Mine periodical estimates indicating, inter alia, the short-of-billed footage, and that these records were prepared on the basis of the records turned in by the inspectors. The Commonwealth did not call the inspectors who measured the holes but the defense did. The inspectors testified that they measured the holes, and that these measurements were turned into the field office which was in charge of Guldin.

The records and the testimony, in connection therewith indicated that the billing of Manu-Mine was in excess of the depth found by the measurements of the commission inspectors. It is argued that there was a valid reason for the discrepancy and that the explanation, coming from the Commonwealth witnesses, indicated that the commission was not cheated or defrauded. With this we do not agree. The tabulations on exhibit 30 carried a notation that the holes short-of-billed footage were due to placing casing into the drilled holes which knocked loose dirt and rock therein; that certain of the holes were clogged due to deposits of material from a nearby stream; and that the drilling contractor “will clean ont short holes before slushing operations are started.” Summers testified that he was of the impression that the short-of-billed footage indicated that a stoppage had occurred which would be cleaned out by the contractor and that the hole had actually been drilled to the depth indicated by the billed footage. Guldin testified to the same effect, and stated that, to the best of his knowledge, there was not a single hole billed which had not been drilled to the depth shown in the billed footage. However, except for spot checks of the holes short-of-billed footage, no complete re-cheek was made to determine whether the holes originally short or blocked were subsequently opened to the billed depth. The inspectors testified similarly.

The testimony of the inspectors and of Guldin and Summers was not the sole evidence in this regard.

The witness George D. Oswald, who was employed by Sullivan Trail Coal Company and Eogers Construction Company in performing the actual slushing into the voids, testified that he found the holes collapsed or filled with dirt and rock and unable to take more than a token amount of slushing material. He stated that about 60 per cent of the holes would not take the material, or more than a negligible amount, while the remaining 40 per cent took considerably less than the estimated amount of material; the holes were collapsed or blocked. Oswald added that, in certain instances when Manu-Mine discovered holes collapsed or blocked, it would simply drive several lengths of casing into the hole, causing more blockage, with the result that such hole would take only about a ton of silt as compared with the estimated 2,200 tons of silt per hole contemplated in the slushing program.

It must be remembered that the entire purpose of the Manu-Mine contract was ostensibly to drill holes down to the voids which were to be filled with silt. The holes were the means by which the silt was to be introduced into the voids. It is therefore immaterial whether the holes were originally drilled to the depth billed; the holes could serve no purpose under the contract unless they were cased to the full depth and were suitable for introducing the silt into the underground chambers. Since the holes did not meet this purpose to the fullest extent, or even to an appreciable extent, the billing for the total amount shown on the drillers’ logs was properly considered evidence of the fraud perpetrated through the conspiracy and under the contract.

Submitting these questions to the jury did not result in the conviction of defendants of a crime for which they were not indicted, as in Com. v. Graham, 170 Pa. Superior Ct. 343, 345, 85 A. 2d 632, and Com. v. Vardelle, 70 Pa. Superior Ct. 241, 244, 245. The conspiracy indictment charged that defendants contrived to defraud the commission, inter alia, “by cunning and stealth permitting the perpetration, camouflaging and nondiscovery of multitudinous acts whereby the Turnpike Commission was charged with and defrauded of millions of dollars . . .” In a conspiracy indictment, particularly one involving fraud, there is a great latitude in the reception of evidence relevant to the scheme devised and the means used to accomplish the objective. Com. v. Sanderson, supra, 40 Pa. Superior Ct. 416, 472, 473; Com. v. Berman, supra, 119 Pa. Superior Ct. 315, 326, 181 A. 244; Walter J. Scanlan & Son v. Sherbine, supra, 382 Pa. 376, 379, 114 A. 2d 900; Glessner v. Patterson, 164 Pa. 224, 229, 30 A. 355; Com. v. Bartell, supra, 184 Pa. Superior Ct. 528, 548, 136 A. 2d 166.

. Defendants allege that it was prejudicial error for the trial judge to admit into evidence the investigating grand jury testimony of John D. Paul, one of the defendants who was acquitted by the jury. The testimony was presented to the jury as an admission against Paul. The Commonwealth offered it against all defendants, but the trial judge was of the opinion that testimony given before the investigating grand jury was not in furtherance of the conspiracy and did not promote or advance the common unlawful object. Therefore, before the testimony was introduced, the jury was instructed that it was restricted to John D. Paul and was not to be considered against any of the other defendants. The testimony was lengthy. It is the contention of defendants that notwithstanding the fact that the trial judge instructed the jury that this testimony was to be considered as an admission against John D. Paul only, it nevertheless contained material which was so prejudicial to the other defendants as to have been improperly admitted. It is argued that such testimony of Paul was not admissible at all because it was not an admission but an attempt by Paul to exculpate himself while inculpating the other defendants; that those portions containing references to the other defendants should not have been read to the jury along with the admissions of Paul; and that the trial judge, although he gave cautionary instructions to the jury when the testimony was received and in the course of his charge, nevertheless improperly utilized the testimony to the prejudice of the other defendants in discussing their role in the conspiracy and fraud.

The testimony of Paul was a detailed recitation of his knowledge of the functioning of the Turnpike Commission, particularly with reference to the ManuMine contract. As such it necessarily would involve statements concerning the other defendants. The testimony was certainly admissible against Paul. It contained admissions notwithstanding the fact that it was not an unqualified confession of guilt. “An ‘admission’ as applied to criminal cases has been defined as a ‘statement by defendant of a fact or facts pertinent to the issues and tending, in connection with proof of other facts or circumstances, to prove the guilt, . . . but which is, of itself, insufficient to authorize conviction; it is a circumstance which requires the aid of further testimony to generate a reasonable conclusion of guilt.’ . . . Voluntary statements made by a defendant, although they may not amount to a confession of guilt, can be used against him if they tend to explain issues on trial, . . .” Com. v. Elliott, 292 Pa. 16, 20, 140 A. 537, 538. Generally, where the Commonwealth desires to prove certain admissions of a defendant, it is not necessary to put in evidence his entire previous testimony. Com. v. House, 6 Pa. Superior Ct. 92, 104. But the entire testimony may be received as an admission where the defendant is charged with participation in a complicated criminal endeavor involving many related facts, incidents, and circumstances, most of which are set forth in the prior testimony. In such a case his entire testimony may be viewed as a whole to ascertain the full extent of defendant’s admission as to his participation in the criminal plot. The testimony of Paul provided a thorough picture of this complicated conspiracy and his participation therein, whether innocent or guilty; it was properly admitted as a whole against him. The fact that the jury subsequently acquitted him does not retroactively affect the admissibility of his prior testimony. Com. v. Berman, supra, 119 Pa. Superior Ct. 315, 323, 326, 181 A. 244.

In a joint trial the acts and declarations of a conspirator made after the conspiracy has ended are admissible against that defendant so long as the jury is properly instructed on the limited purpose and effect of the admissions. This is true notwithstanding that the admission may make reference to the other defendants. Such was the situation in Com. v. Berman, supra, 119 Pa. Superior Ct. 315, 329, 181 A. 244. We there stated (page 329 of 119 Pa. Superior Ct., page 249 of 181 A.): “A statement by one of several codefendants which is in the nature of a confession is admissible in evidence under proper instructions, although such a statement may indirectly influence the minds of the jury against the other defendants on trial. . . . The mere fact that evidence legally admissible against one of several defendants may prejudice his codefendant is no reason for its exclusion. . . . The Cummings statement set forth what he said he knew of the conspiracy charged, and his version of his connection with it. Such a voluntary statement by a defendant is admissible against him, although it may not contain an unqualified admission of guilt. . . . The statement by Cummings, that the scheme with which he was connected proved unfair and unethical and a scheme to defraud customers, was relevant and admissible, although he endeavored to impute the fraud to what he called the ‘Berman group.’ . It might properly be inferred from his statement that he knew more about the scheme than he disclosed. The evidence being relevant, it was immaterial that the statement contained an expression of opinion by Cummings which might be detrimental to the appellant, a codefendant; and it wa's admissible if sufficiently limited by - proper instructions.” See, also, Com. v. Dolan, 155 Pa. Superior Ct. 453, 458, 38 A. 2d 497; United States v. Griffin, 176 F. 2d 727, 729, certiorari denied 338 U. S. 952, 70 S. Ct. 478, 94 L. Ed. 588.

The contention that, at the time the admission was offered, there was not sufficient other evidence of the conspiracy is without merit. The admission was introduced almolst at the end of the Commonwealth’s case. There was sufficient proof of the conspiracy at that time. As said in Com. v. Zuern, 16 Pa. Superior Ct. 588, 604: “The proof of the conspiracy at the point in the trial when the declarations are sought to be introduced, need not be conclusive, but only slight, in order to permit the introduction.”

At the inception of the reading of the testimony of John D. Paul, the trial judge admonished the jury that “this witness is about to be questioned concerning certain testimony alleged to have been given by one of the nine defendants in the conspiracy case, John D. Paul. The testimony you are about to hear, we emphasize, is restricted to John D. Paul alone. It applies to him alone and to no other defendant. You will keep that in mind as the testimony is given, and that applies in all of the cases that are before you for trial.” This admonition was repeated later at the request of defense counsel. In the charge the trial judge instructed the jury on at least five occasions that the testimony of John D. Paul was restricted to him alone and was not to be considered against the other defendants. In addition, at the request of Evans in his points for charge, the trial judge reiterated the admonition on two occasions. We think the instructions were adequate. There was sufficient evidence presented to substantiate the conviction of the four remaining defendants, unaffected by the admission of the Paul testimony. We do not believe that the circumstances are such that the jury disregarded the admonitions of the trial judge. See Com. v. Fugmann, supra, 330 Pa. 4, 17-19, 198 A. 99; Com. v. Novak, 165 Pa. Superior Ct. 576, 581, 69 A. 2d 186. The verdicts indicate otherwise.

Moreover, it is not entirely clear that the statement of Paul was not admissible against all defendants on the basis that it was a declaration by a co-conspirator made at a time when the conspiracy had not ended. See Com. v. Wilson, 394 Pa. 588, 607, 148 A. 2d 234. At the time the statement was made and even at the time of trial, there was a suit pending in the Dauphin County court by Manu-Mine to collect the unpaid balanee for the work performed under the contract, the fruits of this conspiracy. This could be considered evidence that the conspiracy was still in effect at the time Paul made his statement. See Com. v. Strauss, 89 Pa. Superior Ct. 82, 91; Com. v. Girardot, 107 Pa. Superior Ct. 274, 277, 278, 163 A. 362. However, there is doubt in our minds, as there was in the mind of the trial judge at the time the testimony was offered, as to the applicability of that rule to this case; we do not base our conclusion thereon. See Krulewitoh v. United States, 336 U. S. 440, 69 S. Ct. 716, 93 L. Ed. 790. It would appear that the testimony of Paul was not given in furtherance of the conspiracy. See Com. v. Wilson, supra, 394 Pa. 588, 607, 148 A. 2d 234.

We note also that no specific exceptions were taken to the charge of the court in respect to the manner of the use of the Paul testimony. Objection had been made to the introduction of the testimony. Com. v. Black, 186 Pa. Superior Ct. 160, 166, 142 A. 2d 495.

Another contention of defendants is that the trial judge erred in permitting the Commonwealth to introduce certain rebuttal testimony at the close of the defense. The Commonwealth called five former ManuMine inspectors to rebut testimony given by Harry Luke and Stickler that they had no knowledge of irregularities in the slushing operations. Luke was the chief project engineer of Manu-Mine. The irregularities referred to were those in which one of the slushing contractors, Rogers Construction Company, a partnership consisting of Joseph Rogers and Amos Rogers, fraudulently induced the inspectors of Manu-Mine to give false weight slips for the amounts of materials which were allegedly slushed into the voids through the holes drilled by Manu-Mine.

Luke had testified on direct examination that, in connection with the performance of his duties on the construction of the Northeastern Extension, he knew of no one who entered into any unlawful agreement or undertook to do any illegal or improper acts. He reiterated this on cross-examination.

Defendant Stickler testified on cross-examination that it was the alleged irregularities concerning the slushing which caused the Manu-Mine separation from the commission, and that he was of the opinion that these irregularities were not substantiated or the charges justified. The Commonwealth witness Oswald testified, as we have indicated, that the holes drilled by Manu-Mine would not accept an appreciable amount of the silt which Eogers had contracted to supply to the commission, and that as a result some way had to be found to dispose of the material. They devised the scheme of bribing the Manu-Mine inspectors to give the false weight slips and to permit the dumping of truck loads of silt about the countryside. See Com. v. Rogers, supra, 187 Pa. Superior Ct. 471, 175, 144 A. 2d 662; allocatur refused.

The Commonwealth offered the testimony of five former Manu-Mine inspectors, who were involved in the Eogers fraud, for the purpose of attacking the credibility of Luke and Stickler. The trial judge, over objection, permitted the testimony. The jury was instructed that it was not evidence that any offense was committed by any of the defendants, and that it was to be considered for the sole purpose of aiding the jury in passing upon the credibility of Luke and Stickler with respect to their testimony about the irregularities in the slushing program. The testimony of these five rebuttal witnesses was to the effect that, as ManuMine inspectors, they had entered into the agreement to give fictitious weight slips for loads of silt not delivered and to look the other way when silt was dumped about the countryside. They testified that they knew that the commission consequently was making payments to Eogers which were not properly due and that the commission was cheated by their conduct. None of the witnesses imputed knowledge of these irregularities to Luke or Stickler.

Defendants contend that this was highly prejudicial testimony in that it was not proper rebuttal to the testimony of Luke and Stickler, and that its effect was to permit the jury to hear evidence of crimes which were not charged in the indictments and in which no defendant was a participant.

A witness cannot be contradicted on matters which are not germane to the issue being tried, that is, on á collateral matter. Com. v. Potrillo, 341 Pa. 209, 223, 19 A. 2d 288; Com. v. Burdell, 380 Pa. 43, 50, 51, 110 A. 2d 193. Whether the evidence relates to a matter which is collateral depends upon its admissibility for some purpose independent of the contradiction. Com. v. Petrillo, supra, 341 Pa. 209, 224, 19 A. 2d 288. It is equally true that evidence of crimes other than those charged in the indictment is not admissible unless it serves one of the recognized purposes of evidence of that nature. Likewise, in Com. v. Wable, 382 Pa. 80, 84, 114 A. 2d 334, 336, it was said: “. . . evidence of other crimes is admissible when it tends to prove a common scheme, plan or design embracing the commission of two or more crimes so related to each other that proof of one tends to prove the others . . .” The testimony of the inspectoi’s concerned a fraud in which they and Rogers engaged apparently without participation by any of these defendants.

Separate and disconnected' acts and declarations of persons who were not defendants, or shown in any way to have been connected with them, made in their absence without their knowledge may not be admitted in the trial of the defendants. Com. v. Duffy, 49 Pa. Superior Ct. 344, 355. But this was not a case of introducing other distinct crimes which might prejudice the trial of these defendants. The testimony of the

Manu-Mine inspectors was not limited to the commission of crimes. They testified to facts existing in the slushing operation which, by reason of the contract, was under the direct supervision of Manu-Mine.¹⁶ Oswald had testified that the Eogers fraud and conspiracy arose because the holes drilled by Manu-Mine were in such condition that the material which Eogers was supplying could not be used for the contemplated purpose. The fraudulent scheme was devised by Eogers and the Manu-Mine inspectors to charge for the undelivered silt or dispose of it and to receive payment from the commission for material not used in the slushing program. That this evidence showed criminal conduct on the part of the Manu-Mine inspectors and Eogers does not affect the admissibility of the facts concerning the failure of the drilling and supervising program of Manu-Mine to meet its ostensible purpose. We have previously noted that there is wide latitude in a trial on an indictment for conspiracy to defraud. Certainly the inability of the holes drilled by Manu-Mine to accept more than a negligible amount of the silt contemplated in the slushing program, and the fraudulent acts of the inspectors were the direct result of the original conspiracy and fraud perpetrated in obtaining the Manu-Mine contract and in the performance thereof. The evidence presented by the Manu-Mine inspectors was directly related to the conspiracy. The testimony of these inspectors was an elaboration upon and corroborative of that of Oswald which had been presented in the Commonwealth’s case in chief. The testimony did not relate to a collateral matter but to one germane to the issue, and it was proper to permit it in rebuttal. Where evidence would have been admissible in the Commonwealth’s case in chief it may properly be received in rebuttal for the purpose of contradicting the testimony offered by the defendant. This is a matter which is largely within, the discretion of the trial judge. Com. v. Adams, 174 Pa. Superior Ct. 504, 508, 102 A. 2d 202. It is noted that the trial judge clearly limited the testimony to the narrow issue of credibility on one phase of the defense testimony.

It is next argued that the trial judge erred in permitting the Commonwealth witness James H. Pierce to interpret and comment upon the contract of February 28, 1955. Pierce, an engineer of considerable experience in mining, and construction engineering in general, testified on behalf of the Commonwealth as an expert. Defense counsel objected to this testimony. He gave as bis opinion that the language in the contract, with the exception of one portion thereof, was constructural; in fact, that it was a construction contract. He stated further that the contract was an unusual one in that it contained no specifications, that there was no limitation .on the number of feet to be drilled, that there was no re-negotiation clause in view of the cost analysis submitted by Manu-Mine, no. escalation clause, no usual retention clause, and no. requirement of a performance bond. We think the testimony of this expert, as well as that of the other experts who testified on behalf of the Commonwealth, was admissible. “Expert testimony is admissible in all cases, civil and criminal alike, when it involves explanations and inferences not within the. range of ordinary training, knowledge, intelligence and experience.” Com. v. Nasuti, 385 Pa. 436, 443, 123 A. 2d 435, 438.

Certainly tbe contract of Manu-Mine was unusual. It was tbe contention of tbe Commonwealth that tbe contract related to construction although it was made to appear to be an engineering contract as a means devised by the conspirators to defraud the commission. Under the law construction contracts of the commission are required to bear the approval of the Department of Highways. Other evidence indicated that it was a general procedure of the commission that construction contracts be submittéd for bids, have a retention clause, and require a performance bond. If this contract was disguised as an engineering contract to avoid the normal procedure of competitive bidding, to avoid the normal manner of approval by the Department of Highways, and consequently to avoid discovery of the fraud, then it was important that the question of its true nature, engineering or construction, be thoroughly investigated. The fields of construction and engineering as they relate to surface support, drilling, and slushing are certainly not within the realm of common knowledge, intelligence, and understanding; they require specialized training. The Commonwealth therefore properly introduced evidence in the form of the testimony of experts to establish that this was in reality a construction contract in whole or in major part. Drilling for the purpose of reaching the voids to be flushed was, in the opinion of the experts, construction work; and it was on the basis of the price charged for drilling and the amount of drilling done that Manu-Mine received virtually all of the payments under this contract. We recognize that it is normally the duty of the court to interpret a contract; however, when that interpretation requires technical and expert knowledge the testimony of experts may be received to aid in that interpretation. Actually Pierce was not interpreting this contract or the Act of the Legislature; he was testifying from his expert knowledge and experience as to the nature of the loorh to be performed under the contract, as to the manner in which that work was disguised by the wording of the contract, and as to the lack of provisions which appear in the usual construction contract for work of this nature. Cf. Com. v. Sanderson, supra, 40 Pa. Superior Ct. 416, 467. The testimony was properly admitted and submitted to the jury in connection with the means devised by the conspirators to succeed in their plan. That these requirements were not technical legal requirements is of little significance in view of the fact that the commission had adopted them as a general practice in the case of construction contracts.

Defendants further contend that there was error in submitting to the jury the question whether the contract of February 28, 1955, was a construction contract. The trial judge instructed the jury to determine whether the contract was an engineering or construction contract and to consider, if it were a construction contract, whether it should have been competitively bid. Defendants assert that the instructions had the effect of making the jury’s verdicts depend upon whether or not the jury considered the contract a construction contract. They argue that under the instructions, if the jury considered the contract a construction contract, it would be obliged to convict since the contract was not awarded after competitive bidding. Actually the nature of this contract was a. basic issue. The failure to have had the contract submitted for. bids was likewise an important factor in the fraud.

The Commonwealth experts had testified that the drilling, the major portion of the work under the contract, was clearly construction. The evidence, of the Commonwealth also established that, with some exceptions, the contracts on the Northeastern Extension relating to the construction of the roadway, its grading, drainage, and structures, were competitively bid, and were approved by the Department of Highways in the normal manner established at the commission. It was shown that many contracts that were not competitively. bid, such as those for items of equipment, paint, and traffic signs, nevertheless contained the requirement of. a performance bond and a labor and materialmen’s bond, and a retention clause. Even though there may have been no. legal requirements for competitive bidding, the inclusion of performance and labor and materialmen’s bonds, retention clauses and similar provisions, the fact of the matter is that the commission had made a practice, which it admittedly varied at times, that its contracts be competitively bid, be accompanied by the ordinary bonds, and provide for a retention clause. Defendants attempt to use the lack of any legal requirement of these provisions to justify their action. That was for the jury. In the trial of a case of this nature involving fraud such matters are relevant. This conspiracy to defraud was perpetrated in the negotiation, the obtaining, and the performance of the contract of February 28, 1955. Where advantage is taken of technicalities to perpetrate a fraud, they may not be set up in defense thereof after conviction; a fraudulent conspiracy being shown, defendants cannot now hide behind the fact that these omitted contract provisions were not legal requirements. Defendants’ acts and deeds in obtaining the contract, in its execution, and in its performance are relevant considerations in determining the existence of the conspiracy and the nature of the fraud. . The peculiar nature of the contract, its disguise, its failure to have the usual provisions, its failure to have been competitively bid under the circumstances, the nature of the work performed under the contract, the price charged therefor were all matters for the consideration of the jury in determining whether this was actually a conspiracy to defraud. See Com. v. Sanderson, supra, 40 Pa. Superior Ct. 416, 471, 472.

The subsequent handling of this contract corroborated the Commonwealth’s theory. The Manu-Mine contract was treated- as an engineering contract in the negotiations and was adopted by the commission as an engineering contract. Afterwards, in the course of its performance, it was treated as a construction contract. For example, the periodical estimates for payments were submitted on the regular contract form of the commission for construction work and Manu-Mine is referred to therein, in the various certificates, as “contractor.” The certificate on each of the periodical estimates signed by Landsidle as general manager of Manu-Mine is to the effect that all of the work has been performed in accordance with the “terms and conditions of the corresponding construction contract documents.” Some time after its execution the contract received a number in the sequence of construction contracts, and a standard construction performance bond and a labor and materialmen’s bond were requested and dated back to the time of the contract.

We are unable to agree that defendants were harmed by the submission to the jury of the question whether this was a construction contract. Actually if the trial judge had charged as a matter of law that the contract was definitely a construction contract or definitely an engineering contract, as defendants contend should have been done, it would have been error for the trial judge not to have said that this was a construction contract. All the testimony and the circumstances concerning the nature of the work done and the method of handling this contract after it was obtained point unequivocahly to the fact that it was a construction contract.

It was not error to submit to the jury the question whether this contract should have been competitively bid. The evidence showed that, with one exception, all of the roadway construction contracts on the Northeastern Extension were competitively bid. It was also demonstrated that with some exceptions other contracts were competitively bid. This was not an invariable practice, but it was generally followed and was a relevant consideration in this case. The jury was not instructed that, if it found that the Manu-Mine contract wais a construction contract, it then, as a legal requirement, must have been competitively bid. The trial judge instructed the jury that it was to consider whether it should have been so bid. The failure had bearing on this case in demonstrating the method used by the conspirators to avoid the discovery of their fraud and to avoid the possibility that some other contractor might obtain the drilling contract, particularly since the price charged was shown by the evidence to have been exorbitant. Clearly this was a matter for the jury to consider in determining Avhether or not these defendants were guilty of the conspiracy to defraud. The awarding of this contract, in view of the general practice of the commission relating to construction contracts, was a significant factor in the scheme devised by defendants.

Defendants complain that the trial judge refused their points for charge relating to the absence of a statutory duty upon the commission to advertise for competitive bidding. It is true that the trial judge refused such a point for charge. However, the jury was charged that the provisions of the State Highway Act relating to the advertising for public bidding did not apply to the Turnpike Commission; that the Northeastern Extension Act specifically authorized the commission to enter into all contracts necessary for the performance of its duties, and that the only limitation on its power was the requirement that construction contracts be approved by the Department of Highways.

The trial judge also charged that the evidence showed that the commission had exercised its discretion in contracting; and that in some instances construction contracts were let on competitive bidding and. in other cases were entered into as a result of negotiation. Under the circumstances it was not error to refuse the point for charge requested. The jury could not have been under the impression, from the charge or the evidence, that there was any statutory duty upon the commission to have its construction contracts competitively bid. The matter wa's made clear to the jury by the charge of the court and the points of defendants which were read; it needed no further elaboration.

The trial judge refused points of defendants for charge to the effect that the vote of Joseph J. Lawler, in favor of the contract of February 28, 1955, as an ex officio member of the commission by virtue of his office as Secretary of Highways, had the legal effect of giving the approval of the Department of Highways to the contract as required by the statute. Defendants contend that the trial judge erred in refusing thus to submit to the jury the question whether the vote of the Secretary of Highways constituted approval of the Department of Highways to the contract of February 28, 1955. We do not think it was error to refuse this point. The guilt or innocence of these defendants did not depend upon any technical approval given by Lawler when he voted in favor of the contract. The evidence indicated that the Department of Highways maintained at the commission a staff member whose duty it was to examine construction contracts which required approval of the Department of Highways and to give such approval if the contracts were found to be satisfactory. This normal procedure was admittedly not followed in the case of the Manu-Mine contract. The significant factor was not any technical approval by the Secretary of Highways when he voted for the contract but rather the conduct of the defendants in, failing to follow the normal procedure for such approval and through the normal channels. Whether the vote of Lawler constituted in the strictest legal sense the approval of the Department of Highways is a question which need not be decided. See McIntosh Road Materials Company v. Woolworth, 365 Pa. 190, 210, 74 A. 2d 384. Even if it did, the defendants could not take refuge behind this technicality when the evidence demonstrated their efforts to avoid approval through the normal channels by the disguise of this contract as an engineering contract, by their failure to have the contract competitively bid, and by their failure to provide the usual protective clauses of construction contracts.

Defendants submitted several points for charge dealing with the nature and effect of opinion evidence. The trial judge affirmed three of the four submitted points on opinion evidence to the effect that opinion evidence is not the same as factual evidence and that the jury is not bound to follow opinion testimony, especially where such testimony is of a contradictory nature. The points left for the jury weight to be given to opinion testimony and the jury was specifically charged that it was not obliged to believe the opinions expressed by experts. One of the points on opinion testimony was not affirmed and defendants cite this as error. The refusal of this point was not prejudicial. The affirmance of the other points submitted by defendants adequately covered the nature, effect, and weight to be given expert testimony and presented the matter clearly to the jury.

Among defendants’ complaints is the refusal of the trial judge to affirm a point for charge on the subject of political bias. The defendants had submitted two points on this subject. One the trial judge modified, affirmed, and read to the jury; the other was refused. The point affirmed related to bias, interest, prejudice or animosity of any witness to be considered by the jury in determining credibility. The other point concerned a generalized statement on political bias in the institution of the proceedings against defendants. Aside from the fact that the point was too general and nebulous, it is clear that the motive for instituting proceedings is not a relevant consideration at the trial except as it bears on credibility. See Com. ex rel. Flower v. Superintendent of Philadelphia County Prison, 220 Pa. 401, 409, 69 A. 916. A defendant cannot escape criminal liability, where the evidence indicates guilt, on the basis that the motive of the prosecutor may have been other than the proper administration of justice. The motive may be relevant oh the question of credibility of any witness who testifies and the point in this regard requested by defendants was affirmed.

Evans contends that it was error to refuse a series of points which were submitted to the effect that the contract with Manu-Mine could not have been approved ¡without the affirmative vote of the majority of- the members of the commission, and that the vote of Evans alone was not sufficient to approve the contract or authorize its execution. It was not reversible error to refuse these points under the circumstances. The'evidence had indicated that the contract was negotiated and disguised as an engineering contract, and that at the meeting of February 28,1955, Manu-Mine was made to appear as a firm of international good reputation; it was also stated at this meeting that this ‘contract and the work thereunder were of immediate importance for the expeditious construction of the turnpike extension. That the contract could not have been approved Without the vote of a majority of the members of the commission was unimportant in view of the fact that the contract was in fact approved, and that it was disguised to obtain that approval. The fact that a fraud succeeds and results in action being taken by some innocent parties, such as the members of the commission who were not involved in the fraud, cannot form the basis for relieving those who are parties to the scheme.

It is alleged that the trial judge erred in refusing points for charge that the contract of February 28, 1955, contained no provision relating to profits; and that the contract was a fixed price contract which could not be converted into a cost plus contract. It is true that the contract did not contain any provision relating to profit and that it provided a fixed unit price of $12.50 per foot for drilling. There was no question in this case, nor was it the contention of the Commonwealth, that this contract contained, any provision relating to profits or that the $12.50 per. foot of drilling was anything other than a. fixed unit price in the contract itself. The issue was, however, the fraud in the negotiation of the contract and the submission by Manu-Mine of a cost analysis prior to execution of the contract which purported to .justify the $12.50 per foot price for drilling. The contention of the Commonwealth was, and the evidence in support thereof indicated, that although the contract contained a fixed price of $12.50 per foot this price was obtained by reason of the fraud and the conspiracy. The cost analysis submitted prior to execution of the contract was one of the significant, methods of perpetrating the fraud. Since the fraud was in the awarding of the contract and the performance thereof, the circumstances leading to the obtaining of the contract were relevant consideration, not just the provisions appearing in the contract. Com. v. Sanderson, supra, 40 Pa. Superior Ct. 416, 471. Consequently it was not error to refuse the requested points.

Stickler contends that it was error to submit to the jury count 22 of the fraudulent pretense indictment which charged him with an attempt to obtain funds from the commission by means of the false pretense. The basis for count 22 of the indictment was the civil suit pending in the Dauphin County Court to collect the balance of $833,000 allegedly due under the contract. The false pretense related back to the initial analysis of the drilling price submitted by Manu-Mine: The $833,000 was largely a duplication of the amounts involved in counts 18 to 21 of the fraudulent pretense indictment, but it was. based on the additional attempt to collect that money by means of the lawsuit after the submission of the periodical estimates. The evidence supported the charge. The witness Summers and defendant Stickler testified that Manu-Mine brought the suit to recover the balance due- under the contract. The filing of the civil suit to collect the fruits of a conspiracy has been held to keep alive the conspiracy;. it amounts to an attempt to collect the object of the fraud and of the false pretenses which formed the basis of the conspiracy. See Com. v. Strauss, supra, 89 Pa. Superior Ct. 82, 92; Com. v. Girardot, supra, 107 Pa. Superior Ct. 274, 277, 163 A. 362.

Stickler also contends that the separate; sentences on several counts of the. fraudulent pretense indictment are unlawful because the evidence allegedly showed only one false pretense. The fraudulent pretense indictment contained 22 counts. The first count charged the obtaining of the contract by .reason of the • false representation concerning the drilling price analysis; counts 2 to 22, inclusive, charged the obtaining or attempt to obtain funds under .the periodical estimates by reason of the false representation on the price breakdown. Stickler says that there was- in reality at most one false representation in the submission of the initial cost analysis. He argues that the gist of the offense of fraudulent pretense is the false representation, not the obtaining of the periodical estimates, hence the periodical estimates represent the result of but one crime. We cannot agree with, the argument. The crime of fraudulent pretense involves not only the false representation, whether oral, written,- or by conduct, but also the obtaining of something of value as a result thereof with intent to defraud. See Com. v. Thomas, 166 Pa. Superior Ct. 214, 216, 70 A. 2d 458; Com. v. Prep, 186 Pa. Superior Ct. 442, 446, 142 A. 2d 460. The evidence in this case indicated that Stickler and Landsidle falsely represented to the commission and its employes that the price per foot of drilling was a justified one in view of the cost breakdown submitted to the commission. As a.result of that representation they obtained not only the contract but the payment of various sums in the performance thereof as each periodical estimate was submitted. Each periodical estimate was a separate obtaining of funds or an attempt to obtain funds by reason of the false representation of the drilling price. Each time a periodical estimate was submitted Manu-Mine received or attempted to receive additional value and it did so only because of the original, fraud. This is not comparable to those cases in which there is but one criminal act or transaction as in Com. v. McCord, 116 Pa. Superior Ct. 480, 488, 176 A. 834, and Com. v. Baker, 115 Pa. Superior Ct. 183, 188, 175 A. 438.

Torrance contends that the charge of the court prejudiced him in several respects, particularly concerning his claim of reliance upon the judgment of the subordinates at the commission in connection with entering into the Manu-Mine contract. The trial judge fully impressed upon the jury in the charge and by the points for charge that it was essential to a conviction of Torrance that he be shown to have acted with criminal intent and with a corrupt motive. The discretionary powers of a commissioner, the presumption that the discretion was not abused, and the claim of reliance upon subordinates to establish lack of corrupt motive were adequately covered. A misstatement of the evidence in the charge relative to the count in the misbehavior indictment charging obstruction of the investigation was corrected at the request of defense counsel. The charge of the court as to Torrance was not unfair, improper, or inadequate.

Defendants argue that the charge of the court as a whole was basically erroneous in that it did not clarify the issues for the jury and because it unduly emphasized and magnified the claims and evidence of the Commonwealth and minimized those of the defense. The trial judge must maintain impartiality; he should not . in his charge overemphasize the claims and contentions of one side while minimizing the claims and contentions of the other. Com. v. Bartell, supra, 184 Pa. Superior Ct. 528, 546, 136 A. 2d 166. One of the primary objects of a charge is to clarify the issues so that the jury may properly comprehend the questions they are to decide. Com. v. Milligan, 172 Pa. Superior Ct. 607, 609, 94 A. 2d 64. We have examined the charge as a whole and find that it is not of the nature alleged by defendants. The charge including the points for charge covers approximately 200 pages in the printed record. Briefly the nature of the charge and matters covered were as follows: After introductory remarks the trial judge extensively discussed the question of credibility, the burden of proof upon the Commonwealth, the presumption of innocence, the nature of circumstantial evidence and the quantity and quality thereof necessary for conviction, the nature and legal requirements concerning conspiracy in general, and the individual indictments together with definitions of the crimes charged therein and references to the statutes applicable thereto. The nature and necessary elements of the crime of fraudulent pretense were exr plained. The discretionary powers of the commissioners were discussed; it was stressed to the jury that a corrupt and willful design was necessary to convict, and that an honest mistake of judgment or exercise of discretion was not sufficient. The nature and evidentiary weight of reputation evidence was given to the jury. The trial judge commented upon essential questions and issues to he considered by the jury and in so doing fairly presented the contentions of both sides. He gave a brief summary of the testimony of the witnesses, and in this respect it is to be noted that in discussing the Commonwealth witnesses the court’s charge covered approximately ten pages as compared with approximately thirty-three pages devoted to the discussion of the defense witnesses. Interpolated in the recital of the testimony of the witnesses were questions raised by the testimony with a presentation of the contentions and interpretations of the Commonwealth and the defense as to that testimony. The evidence pertaining to several of the defendants with the contentions and interpretations of both sides were discussed. The exhibits were considered. The trial judge reiterated that a mistake of judgment on the part of the commissioners would not be sufficient to convict them of misbehavior in office. Time and again both sides of each question were raised and were discussed. The trial judge then finally considered the points for charge submitted by defendants, and the points affirmed cover approximately thirty-two printed pages. A review of the- charge indicates that it was fair and complete.' ■ In fact much of the evidence of the Commonwealth was not stressed to the permissible limits. The contentions of defendants relative to the charge of the court as a whole are without merit.

IV. Conduct of the Trial

Defendants make a comprehensive attack upon the fairness of the entire proceedings from the investigating grand jury to the time of sentence. The asserted denial of due process must be tested by an appraisal of the totality of the facts in a given case. Betts v. Brady, 316 U. S. 455, 461, 462, 62 S. Ct. 1252, 86 L. Ed. 1595, 1601, 1602. In this portion of the argument

defendants raise several of the specific items previously considered such as the speech and remarks of the Governor,¹⁷ the alleged intrusion upon the grand jury, the refusal of the bill of particulars and similar matters. To these they add others. We have discussed several of these specific matters separately in this opinion, and, giving further consideration thereto in the totality of the facts surrounding the- prosecution, we come to no other conclusion than that due process was not violated. A reading of the entire record discloses no basic unfairness, bias, or prejudice in the admission or restriction of evidence, the examination and cross-examination of witnesses, or the attitude of the court toward defendants. The attitude of the trial judge in his rulings, in permitting the presentation of evidence, in the cross-examination of witnesses, as it can be gathered from the printed record, was equally fair to both sides.. We point specifically to the wide latitude permitted defense counsel in cross-examining such witnesses as Lawler and Summers. We note that each of the counsel for the nine defendants on trial were given full and separate opportunity to cross-examine witnesses and present evidence. Defense counsel were also permitted to cross-examine the defendant Torrance and to elicit from him by leading questions much favorable evidence. Certainly in a trial of this nature and length there may be some errors of minor consequence; we find no reversible error. That the jury reached its conclusion without bias or prejudice from the conduct of the trial is indicated in some degree by the fact that four of the defendants in this joint trial were acquitted. See Com. v. Dixon, supra, 179 Pa. Superior Ct. 1, 6, 115 A. 2d 811; Com. v. McHugh, supra, 187 Pa. Superior Ct. 568, 574, 145 A. 2d 896. The myriad minor items enumerated in the briefs of defendants in connection with the attack upon the over-all conduct of the proceedings neither singly nor collectively demonstrate any basic unfairness.

. We have considered all contentions which defendants have presented in 1,400 pages of brief; and we have answered at length those which are in any way worthy of extended comment.

We conclude this opinion by referring to one other allegation of the defendants to the effect that the trial judge was biased and unfair. This is devoid of merit. As a matter of fact, under the circumstances he displayed unusual self-control and forbearance. There were lengthy and repetitious objections by fourteen defense counsel during the trial, and at its conclusion, in support of their motions, they assigned 941 reasons and ,221 additional reasons incorporated by reference. In the record of 6,500 pages we find no justification for the criticisms by defendants of the conduct of the trial judge. -It is our conclusion that defendants had a fair and impartial trial, and that there was no violation of due process of law.

The conviction of James F. Torrance on count 3 of the indictment charging him with misbehavior in office (No. 220, January Sessions, 1957) is reversed.

The judgment of sentence as to Paul J. McNeill on indictment charging conspiracy (No. 216, January Sessions, 1957) is reversed and said defendant discharged.

The judgments of sentence otherwise as to Thomas J. Evans, James F. Torrance, Charles W, Stickler, and Clayton A. Landsidle are affirmed, and it is ordered that said defendants appear in the court below at such time as they may be there called, and that they be by that court committed until they have complied with their sentences or any part thereof which had not been performed at the time the appeals were made a supersedeas.

Gunther, J.,

would grant the motions to quash the

indictments and discharge the defendants.

1 Pour other defendants who were likewise indicted in the Court of Quarter Sessions of Dauphin County for conspiracy to cheat and defraud the Pennsylvania Turnpike Commission were acquitted.

2 The five defendants were sentenced as follows:

Thomas J. Evans. (1) Conspiracy (No. 216, January Sessions, 1957) — To pay a fine of $500, and to imprisonment for' a definite or fixed term of two years; (2) Misbehavior in office (No. 221, January Sessions, 1957) — Count 1. To imprisonment for an indefinite term of not less than one year nor more than two years, t.o commence at the expiration of the sentence at No. 216, January Sessions, 1957; Count 2. To pay a fine of $5,000, and to imprisonment for an- indefinite term of not less than one year nor more than two years, to commence at the expiration of the sentence at No. 216, January Sessions, 1957.

James F. Torrance. (1) Conspiracy (No. 216, January Sessions, 1957) — To pay a fine of $500, and to imprisonment for an indefinite term of not less than one year nor more than two years; (2) Misbehavior in office (No. 220, January Sessions, 1957) — Count 1. To imprisonment for an indefinite term of not less than one year nor more than two years, to commence at the expiration •of the sentence at No. 216, January Sessions, 1957; Count 2. To pay a fine of $1,000, and to imprisonment for an indefinite term of not less than one year nor more than two years, to commence at the expiration of the sentence at No. 216, January Sessions, 1957; Count 3. Sentence suspended.

Charles W. Stickler. (1) Conspiracy (No. 216, January Sessions, 1957) — To pay a fine of $500, and to imprisonment for a definite or fixed term of two years; (2) Fraudulent Pretense (No. 218, January Sessions, 1957) — Count 1. To imprisonment for a definite or fixed term of five years, to run concurrently with the sentence at No. 216, January Sessions, 1957; Counts 2 to 17, inclusive. To make restitution, and to imprisonment on each count for a definite or fixed term of five years, to run concurrently with the sentence at No. 216, January Sessions, 1957; in addition, on Count 11, to pay a fine of $5,000; Counts 18 to 21, inclusive. To imprisonment on each count for a definite or fixed term of five years, to run concurrently with the sentence at No. 216, January Sessions, 1957. Count 22. Sentence suspended.

Clayton A. Tandsidle. (1) Conspiracy (No. 216, January Sessions, 1957) — To pay a fine of $500, and to imprisonment for an indefinite term of not less than ten months nor more than twenty-three months; (2) Fraudulent Pretense (No. 218, January Sessions, 1957) — Count 1. To imprisonment for an indefinite term of not less than one year nor more than two years, to commence at the expiration of the sentence at No. 216, January Sessions, 1957; Counts 2 to 17, inclusive. To make restitution, and to imprisonment on each count for an indefinite term of not less than one year nor more than two years, to commence at the expiration of the sentence at No. 216, January Sessions, 1957; in addition, on Count 11, to pay a fine of $1,000; Counts 18 to 21, inclusive. To imprisonment on each count for an indefinite term of not less than one year nor more than two years, to commence at the expiration of the sentence at No. 216, January Sessions, 1957.

Paul J. McNeill. Conspiracy (No. 216, January Sessions, 1957)— To pay a fine of $500, and to imprisonment for an indefinite term of not less than ten months nor more than twenty-three months.

Each sentence directed payment of the costs of prosecution, and imprisonment in the Dauphin County Prison.

3 In 1952, Manu-Mine did a total business of $116,000 of which $112,000 was for soil solidification work done on tunnels of the original turnpike. The commission provided approximately 95 per cent of Manu-Mine’s business for that year. The soil solidification work was actually performed by a sub-contractor, The Chemical Soil and Solidification Company of Chicago, at a total cost of about $62,000. Manu-Mine had a gross profit on this job of $50,000. In the following year, 1953, Manu-Mine did a total business of $310,000. 94 per cent of which represented income. from the Turnpike Commission for soil solidification work, for a survey, and for sales of materials.

4 This contract was to run for a period of three months for which Manu-Mine was to be paid $19,250 per month plus an amount for drilling exploratory boreholes which was to be later agreed -upon. The contract was extended twice for periods of three - months on each occasion; a third extension was granted April 7, 1955, for a period of six months at a reduced fee of $16,500 per month. Altogether Manu-Mine was paid $272,000 for the engineering and $104,000 for -the drilling or a total 'Of $376,000 under- this contract of July 7, 1954.

5 Section 4, Act of. May 21, 1937, P. L. 211, 36 PS §652d; section 6 of the Act of September 27, 1951, P. L. 1430, 36 PS §660.6. .

6 The experts so testifying were: Daniel H. Connelly, Deputy Secretary of Mines and Mineral Industries, who made a study of the turnpike as it crossed the anthracite measures; Thomas M. Beany, a State mine inspector of twelve years’, experience, and thirty-nine years’ continuous employment in the anthracite field; Ralph Lambert, chief mining engineer for the Department of Mines and Mineral Industries, a registered mining engineer, who participated in the study made by Connelly and Beany; James H. Pierce, a mining engineer with considerable experience in mining, construction, and consulting engineering, who was engaged to investigate the Manu-Mine work.

7 Daniel H. Connelly testified that seven or eight years after the mining of pillars takes place the possibility of subsidence is 99 per cent removed so that slushing into those voids would not lend any additional support to the surface. Thomas M. Beany, a State mine inspector, testified that all of the work done by ManuMine over robbed out areas was unnecessary because the voids had caved in and the overburden had come to rest. Ralph Lambert, chief mining engineer for the Department of Mines and Mineral Industries and a registered mining engineer in the anthracite fields, testified that where pillars were removed the strata had become stabilized and did not require drilling or flushing. Lambert testified that about 93 per cent of the holes drilled by Manu-Mine on two of the sections were not necessary. Franz Kudlich, a professional mining engineer, testified that in the robbed out areas or exhausted areas of coal mining there was either no possibility or a negligible possibility of further subsidence. Kudlich testified that only about 5 per cent of the drilling done by Manu-Mine was necessary.

8 About 90 per cent of the underground area was inaccessible. Approximately 80 per cent of the drilling done by Manu-Mine was this bUnd drilling.

9 Daniel H. Connelly testified that the price per foot of drilling should have been $4.50; Franz Kudlich and James H. Pierce testified that the price should have been $5.95. The actual cost, including substantial bonuses and overhead, experienced by ManuMine on the job, plus a 10 per cent profit, amounted to $6.67 per foot.

10 Landsidle testified that on January 6, 1955, when the cost analysis based on the Joy No. 32 drill was sent to the commission, Manu-Mine did not intend to perform the work with that drill. At a meeting on January 13, 1955, with John D. Paul, Landsidle was told that the proposed rate of drilling was unsatisfactory and would take, according to Paul’s calculations, two years. Landsidle also stated that he knew that at the 28-foot per shift rate estimated in the cost analysis submitted on January 6, 1955, the job would have taken 20 years with one Joy No. 32 drill.

11 Torrance testified: “A. Well, when Manu-Mine [became] interested in the tunnel work and I met Mr. Evans, he indicated, or definitely said, at that time, that he [Stickler] was a nephew by marriage of Mrs. Evans. Q. Did he express that to you in Turnpike Commission meetings? A. Oh, yes, it was general knowledge in the Turnpike Commission.”

The testimony of Torrance also contained the following:

“Q. Now, Mr. Torrance, when did you know, sir, that the Manu-Mine Research and Development Company was going to be awarded the February 28, 1955 contract? ... A. In my opinion, I thought they would be the contractor. . . . Q. How long prior to February 28, 1955 did you know [think] they would be the contractor? ... A. Well, it could have been in December. Q. 1954? A. 1954, yes.”

Cleaves, a defense witness, testified that the newspaper publicity at Wilkes-Barre as to Manu-Mine contract “involved slushing in the area and it was premature, I understand, and the Commission was very much upset about it. . . . Mr. Torrance was there . .

12 The magnitude of this construction work caused McNeill to request a performance bond and a labor and materialmen’s bond at about this time.

13 In Com. v. Falls and Sykes, 107 Pa. Superior Ct. 129, 134, 162 A. 482, 483, it was stated: “True, the indictment for malfeasance in office was based on charges of extortion, bribery and violation of the liquor laws. The essence of that offense is a breach of official duty. If the misconduct happens to consist of the commission of other misdemeanors, there is no merger. An offender cannot escape punishment for the other offenses; they are independent crimes — the same as an agreement to commit a misdemeanor is a conspiracy. But, as we have seen, that offense is exclusive of the acts that follow; the latter is but evidence of the former. So, the other crimes, while evidence of malfeasance in office, are separate and distinct offenses. Bach indictment required proof of an additional fact which the others did not.”

14 A related principle was recently stated:

“ ‘The general rule is that the accused has no right to the inspection or disclosure before trial of evidence in the possession of the prosecution’ . . . The matter of permitting a defendant to examine and inspect evidence in the keeping of the Commonwealth depends upon an exercise of judicial discretion in any instance and our trial courts can be trusted to exercise it wisely.” Concurring opinion, DiJoseph Petition, 394 Pa. 19, 23, 145 A. 2d 187, 188.

15 The opinion of the court below is reported in 72 Dauphin County Reporter 31.

16 For supervision of the slushing program Manu-Mine was paid $121,722.90.

17 Although the remarks of the Governor were said to have been widely disseminated in Dauphin County by television and radio, the effect of these remarks upon the trial jury has not been raised with particularity by the usual, methods, such as a motion for change of venue, a challenge to the array, or by individual challenges for cause during selection of the petit jurors on voir dire.