Opinion by
The defendants were indicted, tried and found guilty (1) of the charge (No. 303 January Sessions, 1939) of conspiracy with Warren Van Dyke and others to misuse the power and influence of the office of the Secretary of Highways of the Commonwealth of Pennsylvania for the personal aggrandizement of the defendants; and (2) of the charge (No. 304 January Sessions, 1939) of conspiracy with H. H. Temple and others to extort bond business and moneys from contractors engaged in the performance of highway construction contracts, and from insurance agents and brokers writing bonds insuring such performance, by the misuse and abuse of the powers, authority and influence of the office of the Chief Engineer of said Department of Highways, and others. Each of them was sentenced on the first charge to pay a fine of $2500 and costs of prosecution, and on the second, to pay the costs of prosecution. The defendants severally appealed from each sentence.
The assignments of error may be grouped under three heads: (1) Overruling the respective motions to quash, (2) refusing to direct verdicts of ‘not guilty’; (3) overruling the respective motions in arrest of judgment. The discharge of the defendants’ rules for a new trial was not assigned for error; hence we shall not discuss the reasons presented in the motions for new trial. They are, however, adequately discussed in the opinion of President Judge Reese of the 9th Judicial District, who, by direction of the Supreme Court, presided at the trial. As to the motions in arrest of judgment, it is well settled that insufficiency of evidence gives no support to a motion in arrest of judgment: Com. v. Jones, 303 Pa. 551, 553, 154 A. 480. Judgments can
(1) OVERRULING MOTIONS TO QUASH.
These prosecutions had their origin in the grand jury investigation, conducted in Dauphin County, the seat of the State Government, into the acts and conduct of certain public officials, which was considered and passed upon in various phases by the Supreme Court in Dauphin County Grand Jury Investigation Proceedings, (No. 1), 332 Pa. 289, 326, 335, 2 A. 2d 783; Dauphin County Grand Jury Investigation Proceedings (No. 2), 332 Pa. 342, 346, 2 A. 2d 804; Dauphin County Grand Jury Investigation Proceedings, (No. 3), 332 Pa. 358, 2 A. 2d 809. As a result, Honorable Paul N. Schaeffer, President Judge of the 23d Judicial District, consisting of the County of Berks, was directed by the Supreme Court to lay aside his regular judicial duties and proceed to the 12th Judicial District, comprising the County of Dauphin, with Harrisburg as the County seat, there to preside over and take control of the proposed investigation by the Grand Jury of Dauphin County, with the same power and authority as is vested in the law judges of the 12th Judicial District.
During the course of' that investigation, evidence came into the possession of the district attorney, which, in his opinion, warranted an inquiry and investigation into whether these defendants in conjunction with Warren Yan Dyke, then Secretary of Highways (now deceased) and others had conspired to misuse the power and influence of the office of Secretary of Highways for
Pursuant thereto, the district attorney, with leave of the court first obtained, presented these indictments to the regular, current January 1939 grand jury, which, on March 9, 1939 returned a true bill against Kirk and Skok on the indictment to No. 303, and a true bill against Kirk, Skok and Temple on the indictment to No. 304.
On May 1, 1939, the defendants moved to quash the indictments on the following grounds:
(1) Because of the presence during the taking of the testimony before the Investigating Grand Jury of two Special Assistants to the District Attorney, appointed pursuant to the order of the Court of Quarter Sessions of Dauphin County, who participated in the examination of witnesses; for the reason (a) that they were not lawfully appointed, and (b) thereby the secrecy of the Grand Jury was invaded, and the constitutional and statutory rights of the defendants were violated.
(3) The secrecy of the Investigating Grand Jury was further violated, in that two stenographers regularly, by turns, took stenographic notes of the testimony before such grand jury and dictated them onto wax cylinders in dictaphone machines; and two dictaphone operators transcribed such testimony into typewriting, making several copies thereof, which were accessible, with the consent of the District Attorney, to other persons who examined them in whole or in part.
(4) The District Attorney and his representatives took an undue interest in the actions of the Investigating Grand Jury and the Indicting Grand Jury, exceeding their authority.
(5) The safeguards surrounding the Grand Jury were breached by said appointments, intrusions and conduct of those purporting to be special assistants of the District Attorney, which influenced the Grand Juries making the investigation and considering the indictments respectively, in believing that the Commonwealth desired the finding and return of the indictments.
(6) The indictments were not based upon a complaint made before a committing magistrate, etc., and the offenses charged were not of such a nature, nor was there such pressing necessity, as to require or justify the extraordinary intervention of the court and an investigation and indictment respectively by a grand jury without a prosecution before a magistrate.
(7) The offenses as charged in the indictments were barred by the statute of limitations.
(9) The indictments fail to charge any indictable offense.
By permission of the court, the defendants were allowed to take testimony in support of the reasons filed which were outside the record, and the matters were fully argued. The court, acting through Judge Hughes, President Judge of the 27th Judicial District, specially presiding by direction of the Supreme Court, on May 29, 1939, overruled the motions to quash, filing an extended opinion in the case of Com. v. David L. Lawrence and others, (47 Dauphin County Reports 376), where a similar motion was pending, and a supplementary opinion in these cases (47 Dauphin County Reports 411).
Judge Hughes" opinion (47 Dauphin 376) is too lengthy to be included in this opinion or in the reporter’s statement of the case, but it constitutes a full and complete justification of the court’s action in overruling the motion to quash.
The first five reasons assigned in the motion to quash have been fully considered and disposed of by Judge Baldrige, speaking for this Court in Com. v. Brownmiller, 141 Pa. Superior Ct. 107, 14 A. 2d 907, where identically the same points were raised in a motion to quash. We shall not repeat what was so well said there, but refer to it, as if a part of this opinion.
However, as respects the alleged violation of the secrecy of the grand jury by the special assistants to the district attorney, the two stenographers and the two dictaphone operators, we may further state that the statutory authority for the secrecy of the grand jury proceedings in this Commonwealth, goes back to an act of the Provincial Assembly passed in 1696, entitled “The Frame of the Government”, which is found in “Charter to William Penn and Laws of the Province of Pennsylvania”, published in 1879, under the direction
“Thou shalt Diligently Inquire and true presentment make of all such matters and things, as shall be given thee in Charge, or come to thy knowledge, touching this present service, The Kings Counsel, [thy] fellows and thy own, thou shalt keep secret, & in all things thou shalt present the truth, the whole truth & nothing but the truth to the best of thy knowledge.
“This being given to the formen [foreman], The rest of the Inquest shall be attested thus (by three at a time), viz.: The same attestation that your foreman hath taken on his part, you will well and truly keep on your parts.”
This oath is substantially the same, as respects the jurors keeping secret the counsel of the King, their fellows’ and their own, as the “traditional and peculiar form of oath administered to the grand jurors”, cited in 5 Wigmore on Evidence (2d Ed.) sec. 2360, from Earl of Shaftesbury’s Trial, 8 Howell’s State Trials, 759, 771 (1681).
Professor Wigmore, after giving excerpts from certain cases dealing with the rule and the reasons for it, says (p. 151) : “These reasons are obviously fourfold in their bearing, (a) The grand jurors themselves are to be secured in freedom from the apprehension that their opinions and votes may be subsequently disclosed by compulsion, (b) The complainants_, and the witnesses summoned are to be secured in freedom from the apprehension that their testimony may be subsequently disclosed by compulsion, and this in order that the State may secure willing witnesses, (c) The guilty accused is not to be provided with such clues as will enable him
A consideration of the best authorities on the subject leads to the conclusion that the rule is for the protection of the Commonwealth, the grand jurors themselves and the witnesses, and is not concerned with “protecting” the accused, whose constitutional and statutory rights are not affected by it one way or the other.
As early as 1834, the Supreme Court of this Commonwealth in discussing the grand juror’s oath of secrecy, said in Huidekoper v. Cotton, 3 Watts 56, 57: “That part of the grand juror’s oath, ‘the Commonwealth’s counsel, your fellows’, and your own, you shall keep secret’, has been the subject of much observation and some misconstruction. It was framed in another country, and during a state of society different from that in which we live. A powerful and disorderly baron once came with his armed followers and took the judges off the bench in York, and kept them prisoners in his castle some weeks. In such times it might have been
Following this it has been uniformly held in our appellate courts that a grand juror may be called to prove what a witness testified to before the grand jury. Mr. Justice Merctjr, speaking for the Supreme Court in Gordon v. Com., 92 Pa. 216, 220, said: “Substantially it was said [in Huidekoper v. Cotton, supra] the oath and whole proceeding before a grand jury were intended to protect the innocent witness and juror, but to punish the guilty party. It should not be so construed as to punish the innocent or obstruct the due course of justice. On no sound principle can it be said that a witness who has testified before a grand jury shall be permitted to claim that his evidence was a privileged communication, so that it shall not be shown, under the direction of the court, whenever it becomes material in the administration of justice. It is material when the evidence is necessary to protect public or private rights. It must be conceded that the rule shall not be carried so far as to conflict with the juror’s oath. He shall not testify how he or any member of the jury voted, nor what opinion any of them expressed in relation thereto, nor to the act of either which might invalidate the finding of the jury. His action, and the action of his fellow-jurors, must be shown only by the returns which they make to the court. What a witness has testified to before them is
See also, Com. v. Green, 126 Pa. 531, 536, 17 A. 878; Com. v. Fotti, 93 Pa. Superior Ct. 365, 367-368; Com. v. Carr, 137 Pa. Superior Ct. 546, 558-559, 10 A. 2d 133; Com. v. Gerstman, 64 Pa. Superior Ct. 484, 489; Com. v. Mead, 12 Gray (Mass.) 167; Com. v. Hill, 11 Cushing (Mass.) 137.
It is to be noted that each of the special assistants to the district attorney took the customary oath of office, and the stenographers and dictaphone operators took the oath of secrecy; and nothing appeared in the evidence showing any violation of these oaths, or any conduct by any of the parties involved which was injurious to the defendants.
All of the testimony taken by permission of the court below, as to reasons for quashing the indictments because of matters outside the record, related to matters occurring before the ‘investigating’ or ‘presenting’ or ‘special’ grand jury, as distinguished from the ‘regular’ or ‘current’ or ‘indicting’ grand jury, which returned these indictments as ‘true bills’.
The language used by this court in Com. v. Brownmiller, 137 Pa. Superior Ct. 261, 267, 9 A. 2d 155, speaking through Judge Cunningham, is also particularly pertinent: “We are here dealing with a district attorney’s bill presented to a grand jury by leave of court. It is of little consequence where a district attorney obtains the information upon which he predicates such a request. In Com. v. Brown, 23 Pa. Superior Ct. 470, 495, it was obtained from the report of a committee appointed by the Board of Public Education to investigate alleged offenses by certain school directors. It has been repeatedly held that, in the absence of a ‘manifest and flagrant’ abuse of the powers vested in him,
The sixth and ninth reasons are without merit. The offenses charged dealt with grave matters of a public nature, of great importance to the civic well-being of the Commonwealth. They were peculiarly proper for the investigation of a special grand jury and for the presentment by the district attorney of a bill of indictment by leave of court. Lloyd & Carpenter’s Case, 3 Clark 188, 190; McNair’s Petition, 324 Pa. 48, 60, 187 A. 498; Dauphin County Grand Jury Investigation, No. 1, 332 Pa. 289, pp. 332, 334, 2 A. 2d 783. The indictments charged conspiracy to commit misdemeanor; the one (No. 303) a common law offense, the other (No. 304) a statutory misdemeanor. Misfeasance or misbehavior in public office for the personal aggrandizement of one’s self or another, affects the public policy and economy and is indictable at common law: South v. State of Maryland, 18 Howard 396, 402 (U. S.); Com. v. Hubbs (No. 2), 137 Pa. Superior Ct. 244, 8 A. 2d 618; Com. v. Brown, 116 Pa. Superior Ct. 1, 175 A. 748; Penna. v. Keffer, 1 Addison 290; Com. v. Reiter, 78 Pa. 161; Respullica v. Burns, 1 Yeates 370. The suggestion that impeachment is the only remedy was effectually refuted
The seventh and eighth reasons must likewise be overruled. The indictments alleged that the offenses were committed “on or about, to wit, the first day of July A. D. 1935 and continuing until on or about the 31st day of December, 1937.” “The fact that a conspiracy existed on the [31st day of December, 1937] or upon any other day within two years of the exhibiting of the bill of indictment, may be shown by the previous acts, conduct or declarations of the parties. The Statute of Limitations affects the crime, not the proof of it....... where in conspiracy an overt act is done within two years, and said act is but one of a series of acts committed by the parties, evidently in pursuance of a common design and to carry out a common purpose, such acts would be evidence, provided they tend to show that the last act was a part of the series and the result of an unlawful combination; and such evidence may satisfy a jury of the existence of a conspiracy at the later period”: Com. v. Bartilson, 85 Pa. 482, 489. As we said in Com. v. Routley, 115 Pa. Superior Ct. 125, 131, 174 A. 657—reversed in the Supreme Court, on another point—“Conspirators, by escaping prosecution for two years, do not secure immunity for their continued unlawful acts, done in furtherance of, or pursuance to, the conspiracy, after the two years have expired. A completed conspiracy must be prosecuted within two years after it ceased; but a conspiracy renewed by repetitions may be prosecuted, and indictment found, at any time within two years after the commission of the last offense, by charg
The date in the indictment, within two years of the finding of the true bill, may be regarded as the date charged in the indictment and the other rejected as surplusage. See Com. v. Dingman, 26 Pa. Superior Ct. 615, 620. On the trial the indictments were amended so as to charge the conspiracy as “on or about the sixth day of April, 1937” (804a-806a). With the surplusage rejected, all question of the duplicity of the indictments is eliminated.
We find no error in the court’s refusal to quash the indictments.
(2) REFUSAL OF DIRECTED VERDICTS OF ACQUITTAL.
We then come to the important question on the merits. Judge Reese, who presided at the trial, in his charge to the jury, properly defined a criminal conspiracy as “An agreement or combination or confederation between two or more persons, with criminal intent, to do an unlawful act or to do a lawful act by unlawful means.”
The important elements of the crime are (1) a combination of two or more persons, (2) with criminal intent, or corrupt motive, (3) to do a criminal or unlawful act, or an act not in itself unlawful, by criminal or unlawful means.
In the present case, the combination was proved by direct testimony of the most convincing nature. In
It is necessary therefore to recount at some length the circumstances in evidence which the learned court below felt warranted the jury in finding the defendants guilty and which justified it in sustaining the verdicts— with which view we are in accord. These circumstances —'Which the verdicts of the jury warrant us in referring to as facts—are set out in detail in Judge Reese’s opinion, and amount to a demonstration of the guilt of the defendants, if the facts were as found by the jury. We may add that we have carefully read the testimony, and, in our opinion, it supports Judge Reese’s l’eview of the facts. This review takes up twenty-seven printed pages, covering a record of 1500 pages. To incorporate it into this opinion, or in the reporter’s statement, would unduly extend an already long opinion. We shall, therefore, try to shorten the facts without seriously affecting their force, but in case of doubt, we refer to Judge Reese’s review in full.
The defendant, Kirk, was the secretary, a director, and the owner of a fourth interest, in the Harris-Lawr
In 1935, after the change of administration of the State Government at Harrisburg and the appointment of Mr. Lawrence as Secretary of the Commonwealth— he was also chairman of the Democratic State Committee—the Kirk Agency took steps to enter the field of supplying bonds to bidders who secured contracts for work in the State Highway Department. Mr. Kirk asked Warren Van Dyke, the newly appointed Secretary of Highways, for his help in getting some of this business, and the latter agreed to give it. Van Dyke spoke to some such contractors on behalf of the Kirk Agency, and at his suggestion Kirk sent Skok to see Van Dyke and to take charge of an office which the Kirk Agency opened in Harrisburg to solicit such bonds. Van Dyke introduced Skok to Mr. Temple, the chief
Skok was informed by the Secretary of Highways and his chief engineer of the routine work of the Highway Department with respect to the awarding of contracts, and thereafter attended the lettings of such contracts held in the State Capitol Building. He had had no experience in that line of business, which was highly competitive, and knew none of the contractors engaged in that line of contracting work. But immediately on receiving information of the successful bidders, he communicated with them by letter, telephone and by personal visits, and aggressively solicited their business, and where the contractors already had made arrangements for their bonds, he demanded a part of the commissions on such bonds—that is, that the contractors instruct their insurance agents to split their commissions with the Kirk Agency—making representations or insinuations that it would be to their interest to do so because of the contacts or connections the Kirk Agency had with the administration, or party in power, or similar influences and in many instances secured a split in the
In this work of solicitation, of which Kirk had full knowledge, Skok had the aid and assistance of Chief Engineer Temple, acting under the instructions of Secretary of Highways Yan Dyke.
Temple directed his assistant chief engineer to announce at the time of the opening of the bids that the low bidders were to call at the office of the chief engineer. In cases where the low bidders failed to call at the office of the chief engineer, letters, written at his direction, were sent to the contractors requesting that they call to see Mr. Temple at his office in the State Capitol Building. In these letters no mention was made of the purpose for which they were asked to call upon the chief engineer. When the contractors who received such letters met with the chief engineer, they were informed by him that he had been requested by Mr. Yan Dyke, the Secretary of Highways, to pass along the word to contractors that the General (State) Committee would appreciate it if they would favor the Kirk Agency or the Manley Agency with their bonding business.
The chief engineer pursued this policy of requesting contractors to favor the Kirk Agency of Pittsburgh and the Manley Company of Philadelphia with their bond business because of the “request” made of him by Secretary of Highways Yan Dyke. At the time of making these requests he was under the impression that Matthew McCloskey was interested in the Manley Insurance Company, and that the Kirk Agency was representing the Harris-Lawrence Company. He believed that David L. Lawrence, Chairman of the Democratic State Committee, had an interest in the Harris-Lawrence Company and was associated with Kirk in the insurance business.
The letters that were written by Chief Engineer Temple to the contractors requesting the latter to call
Both Skok and Manley, the latter the owner of the John J. Manley Agency, knew of the instructions that had been given to Chief Engineer Temple by Secretary of Highways Van Dyke. Together they informed Temple that there had been worked out an arrangement whereby the Manley Agency was to secure the highway construction bond business in the eastern part of Pennsylvania and the Kirk Agency was to secure the bond business in the western part of Pennsylvania.
In carrying out the instructions given him by Van Dyke, as aforesaid, the chief engineer made requests of many contractors that the Kirk Agency and the Manley Agency be favored with highway construction bond business.
The defendant Kirk was fully aware that Skok had arranged with Temple to “contact” contractors and that he and the Secretary of Highways were interesting themselves in behalf of the Kirk Agency, and that many of the bonds obtained or commissions split were obtained from contractors located a great distance from his agency, who did not have a personal acquaintanceship with him or Skok.
The testimony showed that at the time these requests were made of the successful contractors by the chief engineer, they were familiar with the standard form of contract under which their work was to be performed, and they knew that paragraph 2 in those contracts made the chief engineer the final authority on the inspection, supervision and performance of the work, subject only to the right of appeal in paragraph 9 to the Secretary of Highways and the Attorney General; and they also knew that the awarding of contracts and the passing upon the financial responsibility of the successful contractor was under the control of the Secretary of Highways; and in at least two instances, contracts on which Donatelli & Donatelli and
Three original letters—Exhibits 1, 2 & 3,—written by Skok, on behalf of the Kirk Agency, to Temple, photostatic copies of which were produced at the argument—and which escaped the destruction or ‘discarding’ by Skok of all copies of his letters to Temple, although he preserved copies of all his other letters—are convine
Letter No. 1, dated October 5, 1936 contains an express request to Temple from the Kirk Agency to see that it was favored with the bonds of five designated contractors. Among them was the Conte-Eastwood Company, already referred to, as to which Skok wrote: “We are particularly interested in the last one mentioned as it is the best of the bunch. I talked with Mr. Conte and he is favorable that the bond be placed with us, but I know that a word from you along this line would put the deal across.”
Again, in Letter No. 2, he refers to five more contracts and says that he has already ‘contacted’ four of them, among them Donatelli & Donatelli, “but a word from you relative to these bonds will put the deal across.” Mr. Temple’s notation showed that he gave the word.
Each of these letters contained a note at the bottom, “c. c. to Miss A. E. Priddy”, which meant that a carbon copy of the letter had been sent to Miss A. E. Priddy, secretary for Mr. Lawrence, who was Secretary of the Commonwealth and Chairman of the Democratic State Committee; its admitted purpose being to call the attention of the chief engineer to the fact that the letters had been brought to Mr. Lawrence’s notice and were likely to have his personal attention and examination into the results obtained.
The combination charged in these indictments was not that the defendants had obtained the influence and assistance of the State Committee in securing these bond contracts, which, apart from the State officials who might be connected with it, was at liberty to assist, in a legal way, their political friends in obtaining business growing out of government contracts; but the charge was that the defendants had combined with the Secretary of Highways and the Chief Engineer of the Highway Department whose official duties Were re
As Judge Reese aptly put it: “The use of the Chief Engineer’s office in influencing the placing of bonds with certain favored agencies for the private gain of the individuals owning or interested in such agencies was a clear violation of the duties of a public official. A public office is understood by all to be a public trust. To honestly administer such trust the official in whose charge it is placed must give his undivided loyalty to the people of the Commonwealth. To permit the power and influence of his office to be used for private gain and to place himself under obligation to contractors was in effect to attempt to serve two masters, and had a necessary tendency to destroy the sanctity of the obligation assumed by Temple when he accepted the
The practical effect of such influence was seen in the results obtained, as set forth in Judge Reese’s opinion: “Skok commenced his activities in the highway construction bond field in the summer of 1936. Prior to that time he had no experience along that line nor was he acquainted with highway contractors, [and] the new field in which he embarked was highly competitive; and yet, despite his lack of experience and the keenest of competition, during the balance of the half year remaining in 1936 Skok succeeded in securing bonds or participation in bond commissions in 73 cases. During the entire year of 1936 there was filed in the Highway Department a total of 431 bonds. The following year, 1937, Skok succeeded in securing bond business in 113 instances out of a total of 410; and in the year 1938 he succeeded in securing bonds or participation in bond commissions in 72 out of a total of 305 bonds filed in connection with the highway construction contracts. In the year 1938 his efforts were not as successful as in the last half of 1936 and in the year 1937, and this is explained by the discontinuance of the office that had been maintained by the Kirk Agency in the Penn-Harris Hotel in Harrisburg. The discontinuance of this office occurred in April, 1938, the same month during which proceedings were commenced in Dauphin County for holding a Grand Jury investigation. Skok claimed that his success in securing bond business was due to his solicitations. It seems improbable that in a field so highly competitive he could succeed in securing so much business from contractors whom he did not know and most of whom were located at great distances from the City of Pittsburgh. Contractors were led to believe
The verdict against the defendants in No. 304 is not affected by the fact that the jury acquitted Temple on that charge. Verdicts in criminal cases do not have to be consistent: Com. v. Kline, 107 Pa. Superior Ct. 594, 602, 603, 164 A. 124 (Parker, J.); Dunn v. United States, 284 U. S. 390, 393 (Holmes, J.); but the jui’y may have concluded from Temple’s testimony that whatever part he had in the combination was done pursuant to the orders of his superior, the Secretary of Highways, and did not involve any personal criminal intent on his part.
The assignments of error are overruled. The judgment in each appeal is affirmed, and it is ordered that the appellants severally 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 respective sentences.