Commonwealth v. Snyder , 40 Pa. Super. 485 ( 1909 )

Opinion by

Porter, J.,

William P. Snyder, the appellant, was charged jointly with John H. Sanderson, Joseph M. Huston, James M. Shumaker, and William L. Mathues with conspiracy to defraud the commonwealth. Huston having been granted a severance, the other four defendants were tried together, the trial resulted in a verdict of guilty as to all of the defendants tried and upon that verdict judgment was entered. We have in this case the appeal of William P. Snyder from that conviction.

The form of the indictment, the crime charged therein, and the facts out of which that charge arose have been recited and commented upon at length in disposing of the appeal of the defendant Sanderson, in which an opinion has this day been filed, and it is not necessary here to repeat what we there said. We shall, therefore, only deal with the questions raised by the assignments of error of this particular defendant.

The first specification of error complains of the admission of evidence that Huston, when departing on a trip to Europe, left with the witness, who was a clerk in his office, a number of signed architect’s certificates, leaving the body of the certificate blank and simply signing his name followed by the word, “Architect;” that during Huston’s absence the defendant Sanderson came to his office and the witness at his suggestion filled out the blank portion of one of these certificates, taking the amount and other material parts from the bill or invoice presented by Sanderson; that when so filled up it constituted a certificate by Joseph M. Huston, architect, that Sanderson was entitled to receive from the commonwealth $53,318.60, under his contract and that the indebtedness arose and was properly charged under “Item 24; 2,897f feet at $20.00, less 8 per cent,— $18.40, total $53,318.60;” that neither Huston who signed the blank certificate nor the witness who filled in the blank space knew anything about the facts or the correctness of the invoice which was thus certified to be correct; that Sanderson took with him the certificate, and that certificate was identified as the one attached to the invoice, the payment of which was in the indictment averred to have been an overt act done in pursuance of the conspiracy charged. This evidence was admitted against the defendant Sanderson alone. Huston was not on trial, but he was charged jointly with the defendants, and it was competent for the commonwealth to prove what each of those charged had done in the presenting, certification and payment of the identical invoice upon which the indictment was based. The indictment charged that not only the five persons named but that others unknown had been parties to the conspiracy. ■ Now if Huston had left this unsigned certificate under an agreement with Sanderson that the latter might subsequently procure and use the certificate for the purpose of making it appear that the invoice was correct and that the state ought to pay, without Huston having any knowledge whatever as to the facts so certified, then this evidence was competent to show that Sanderson and Huston were guilty of conspiracy. If Huston had not authorized this certificate to be issued, then the evidence was competent to show that Sanderson and the man who without authority filled the certificate had conspired in making this false certification. The several persons charged in this indictment were not required to all act jointly or at one time in dealing with the invoices for furniture, under the contract; they acted successively, the act of each led up to the final act of payment of the claim. When two or more persons pursue by their acts the same object, often by the same means, one performing one part of an act, the other another part of the same act, with a view to complete it, and with a view to attaining the object which they are pursuing, the acts of each must necessarily be proved separately, and where there is a charge of conspiracy the acts of each, with regard to the subject-matter of the charge, are always evidence against that particular defendant. The burden was upon the commonwealth in this case to satisfy the jury beyond a reasonable doubt that there had been a conspiracy, between two or more of the defendants or some one of them and a person or persons not named, to defraud the commonwealth. It was not necessary to prove that they had all met to conceive the scheme, nor to .prove by whom it was originated: Roscoe’s Criminal Evidence, 415. This same question has been discussed in the opinion in the appeal of Sanderson, and further comment is not necessary. The second specification of error refers to the comment of the court upon the evidence to which the first specification of error relates. It may here be stated that, in addition to the formal certificate mentioned in the testimony above referred to, there appeared upon the invoice itself an informal certificate, in the words “Approved, Joseph M. Huston, Architect.” The testimony of the clerk from Huston’s office as to the manner in which the formal certificate had been made up was not contradicted. Huston was not on trial, and there was no positive admission by him that he had authorized the issuance of the formal certificate or that he had actually signed the informal one, although there was oral evidence that the certificate last mentioned was genuine. It was, therefore, proper for the court to instruct the jury that it was for them to determine, under the evidence, how far the action of Huston in relation to the bill contributed to its passage and payment. The first and second specifications of error are dismissed.

This appellant, through his counsel, contended all through the trial that he as a member of the board of commissioners of public grounds and buildings and, also, as auditor general relied upon the certificate of Huston, the architect, as to the correctness of the various invoices rendered by Sanderson for furniture supplied under his contract and that he was justifiable in so doing. This appellant was the only one of the defendants who testified at the trial and his explanation of the manner in which, as a member of the board of commissioners of public grounds and buildings and as auditor general, he had acted upon the several invoices rendered by Sanderson for furniture, was that he had relied absolutely upon the certificate of Huston as to the correctness of the invoices and the item numbers of the contract under which the several articles of furniture were to be charged and paid for. The contention of the appellant as to the powers of the architect and the complete effacement of the board of commissioners of public grounds and buildings and the auditor general is indicated by his answers to three questions. “Q. In examining the schedule under which the contract was awarded you found that item 25, did you not, referred to chairs and seating and so on? A. I did. Q. Why, when you gave that order, didn’t you specify that this should be furnished under item 25? A. Because the matter of arranging the items was referred to the architect, who was the only one that did know under what items would be proper to order the different kinds of furniture. Q. Where is there anything being left to the architect in his contract of employment or in the resolution as to the item numbers? A. That may be, but all the action, and all his actions, indicated that he was our agent and that we depended on him to take the place of the board, who had no technical knowledge.” The evidence disclosed that as to nearly all of the invoices there were in fact two certificates, one informal which consisted in writing upon the invoice “Approved, Joseph M. Huston, Architect,” which certificate was referred to during the trial as the “black” certificate; the other certificate was formal and at the trial came to be called the “pink” certificate. The latter certificate contained a formal certification that there was a specific sum, stated, due Sanderson under his contract with the state for furniture and fittings for the new capitol building. The “pink” certificates did not prior to July 7,1905, contain any reference to item numbers or measurements, but on and after that date they contained the item number of the contract, under which, and the measurement or weight at which the articles of the invoice were to be charged and paid. Whether the state officers in good faith relied upon those certificates and accepted as true, or had any good reason to so accept the statements of those certificates, was a question of fact, to be determined by the jury. Evidence was, therefore, admissible to show the manner in which this appellant had dealt with those certificates, directed a change in the form thereof, that the certificates should state the item numbers and the measurements and directed the source from which the architect was to obtain those item numbers and measurements. The evidence covered by the exceptions upon which the third and twelfth specifications of error are based related directly and exclusively to these matters and was properly admitted. The evidence admitted under the exception upon which the thirteenth specification is founded related directly to the manner in which this appellant and Huston dealt with regard to the certificates of the latter and had a material bearing upon the question whether the appellant in good faith relied upon the truth of Huston’s certification. This evidence, if believed, was to the effect that the appellant had actually made out and signed warrants for the payment of invoices which were not accompanied by any certificate of the architect; that he took these warrants to Philadelphia and there procured certificates from Huston, under circumstances showing that the appellant knew that Huston was certifying to facts of which he had no knowledge. The evidence was admissible and proper for the jury to consider in passing upon that which became the vital question in this case. Did the appellant believe that he had a right to rely upon Huston’s certificate and did he in fact believe that the certificate was true? The evidence embraced under these three exceptions was specifically contradicted by the appellant, and he has argued, through his counsel, that the testimony produced by the commonwealth upon- this question contained inherent contradictions. This may be all true, but the evidence was for the jury and the third, twelfth and thirteenth specifications of error are dismissed. The fourth and fifth specifications of error refer to the manner in which the question, growing out of the evidence admitted under the third specification of error last above referred to, was by the court submitted to the jury. The question was one which must necessarily be submitted to the jury and, finding no error in the instruction of the court in making such submission, we must dismiss these specifications.

The sixth, seventh, tenth and eleventh specifications of error relate to the admission in evidence of five other invoices presented by Sanderson and certified and paid by the other defendants, for furniture supplied under this same contract, and testimony showing that those invoices had been certified, settled and paid in an irregular and unusual manner; that in those invoices sofas and tables had been charged for under items 25 and 27, while in the invoice upon which the indictment was based they were charged under item 22 at a much higher rate, and widely different and inconsistent systems of measurements were used in the different invoices; and that the several invoices were false in respect similar to the invoice upon which the indictment was based. This evidence tended to establish that in dealing with the contract, under the pretended provisions of which the invoice, referred to in the indictment, was presented by Sanderson and certified and paid by the other defendants, the contractor had presented and the other defendants had certified and paid invoices involving several millions of dollars, without those invoices having been submitted to and approved by the board of commissioners of public grounds and buildings as expressly required by the Act of March 26,1895, P. L. 22; that the warrants with which these bills were paid, were handled by the auditor general in an unusual manner; that in previous invoices the defendants had repeatedly construed the contract as requiring that sofas should be charged under item 25 and tables under item 27 and not at the higher rate fixed by item 22, which was adopted with regard to the invoice referred to in the indictment; and that all the invoices were false with regard to the measurement of the furniture to which they referred, the number of feet charged and paid for in many cases exceeding even the number of surface feet in the articles. This evidence was all properly admitted for the purpose of showing how the defendants had dealt with bills under the contract involved; that the acts charged in the indictment, the presentation, certification and payment of the invoice alleged to be false were willfully, intentionally and wrongfully done, in pursuance of a corrupt combination, and not merely accidental or negligent acts; and that the overt act charged in the indictment was one of a series constituting a connected system of fraud: Com. v. Bartilson, 85 Pa. 482; Neff v. Landis, 110 Pa. 204; White & Co. v. Rosenthal, 173 Pa. 175; Bottomley, Jr., v. The United States, 1 Story, 135; United States v. Lee, 106 U. S. 196; United States v. Greene et al., 115 Fed. Repr. 343; Com. v. O’Brien, 140 Pa. 555; United States v. Lancaster, 44 Fed. Repr. 896. This same question was raised by the specifications of error in the appeal of Sanderson, and it is not necessary to further amplify what we there said. There was no error in the comment of the court upon this evidence in chaining the jury, and the sixth, seventh, eighth, tenth and eleventh specifications of error are overruled.

The ninth specification of error relates to the language of the learned judge in his charge, when in submitting the question of the meaning of the term “per foot” in the contract he referred to the schedule of 1898-99, which had been offered in evidence. In order to clearly present the question it is necessary to quote the part assigned for error. “In determining what the term ‘per foot’ means, you will recall the evidence submitted on the part of the commonwealth respecting the schedule for 1898 and 1899, where the same term was used — ‘ per foot’ — with respect to furniture, and under that schedule the defendant Sanderson was a bidder, received the contract and supplied furniture under that contract, and that he was paid for it by the lineal foot. That piece of testimony is proper for your consideration, gentlemen of the jury, because that was a contract between the defendant Sanderson and the state, between the same parties who are parties to this contract, the construction of which we are considering, and you will determine how far that shows what the parties understood at that time, and how far their understanding at that time can throw light upon what was understood by them when they used the term 'per foot’ in the present schedule.” The effect of the introduction in evidence of the schedule of 1898-99 was thus clearly confined to one question, the meaning of the term “per foot” in the schedule. The court impartially submitted to the jury all the evidence upon this point and fairly stated the contention of the defendant Sanderson as to the meaning of the term. The language above quoted is not all that the learned judge said in submitting this particular question to the jury, and the charge made it very clear to the jury that the schedule of 1898-99 and testimony in connection therewith were only to be considered in so far as the legal right of Sanderson to charge, under the contract, for sofas and tables at the rate he at the trial asserted, was concerned. The other defendants did not at the trial join in the assertion that Sanderson’s contention was correct, they only sought to interpose the shield afforded by Huston’s certificate. The learned judge was very careful to instruct the jury that the question of the amount that Sanderson was legally entitled to be paid for furniture under the contract was not the only one involved in the determination of the guilt or innocence of these defendants, and in that connection used this emphatic language. “But it is not sufficient, gentlemen of the jury, even if you find that this bill is false. As we said before, if it is neither false as to item number nor false as to measurement, nor fraudulent, did not in fact defraud the state of any of its money, that is the end of this case and these defendants must be acquitted. But if it was false then the next question you are to determine is whether these defendants charged in this indictment, or any of them, knew it was false. Did they know that the bill was charged under the wrong item number or that the measurements contained in it were false, were not such as were warranted by the contract or the schedule? Did they know it? And that is an exceedingly important question, gentlemen of the jury, for your determination. If they did not know it, either through carelessness or through an honest misinterpretation of the contract or through mistake or accident, if the bill was presented and these were mere mistakes due to a wrong interpretation of the contract on the part of Sanderson and an honest belief that he was charging what the contract permitted, both as to item number and as to measurements, then he would not be guilty of any criminal offense; he would not be guilty of any fraud.” And again, “Gentlemen of the jury, we attempted to say to you that none of these defendants is to be convicted for dereliction of duty, or for gross negligence or carelessness in the discharge of public duty, nor for an honest mistake, nor for an accident, nor for inadvertence, nor for a misinterpretation of the law or of the contract under which they were acting. They are charged here with positive crime, and you must be satisfied beyond a reasonable doubt that they are guilty of the conspiracy of which they are charged before you can convict them.” The complaint of the ninth specification is not well founded.

The admission of evidence which established that Huston had at the request of Shumaker assisted in the preparation of the schedule of 1904-05, upon which the contract was awarded to Sanderson and in pretended compliance with which the sum of money in question was paid to the latter, is the subject of the fourteenth specification of error. The indictment charged that both Shumaker and Huston were parties to the conspiracy. The question of the admissibility of evidence showing the manner in which the schedule was made up, the ambiguous terms thereof; the contract awarded and the actions of the parties thereunder has been dealt with in the opinion in the Sanderson case and in the preceding part of this opinion, and further discussion thereof is unnecessary. The specification of error is overruled.

The fifteenth specification of error relates to the admission in evidence of a document called the “Quantities Book” and testimony as to the manner in which it was made up. The board of public grounds and buildings had adopted what were called “Quantity Plans,” for the purpose of indicating the articles to be furnished and work to be done by Sanderson under the contract. These included a plan of each room upon which were indicated by symbols the furniture to be placed and the work to be done in that room. A copy of these plans was furnished to the auditor general, the appellant, but he complained to Huston and his assistant, Lewis, that the plans were inconvenient and the symbols upon them difficult to understand, and requested that a list should be made up in which a page .should be given to each room in the new capitol building, upon which should be stated in plain English what furniture was to be placed and what work to be done in that particular room. The evidence which was admitted under the exception relates to the manner in which that book was made up. The witness, Lewis, testified that when the list was first made and presented to the auditor general, the latter stated that it was not what he wished, that he wished in addition to the list of the articles two columns placed on each page, for the' purpose of entering payments on account and total cost, and, also, that the list should indicate under which item of the schedule each article of furniture was to be charged and paid for; that the appellant said he himself would prepare a sample page, indicating the form in which he wished to have the book prepared; that the appellant did prepare and subsequently delivered to the witness a sample page for the book; that the appellant took for that purpose “Room 121,” the auditor general’s office, with a complete list of every article of furniture which was to be placed in that office; that this sample page designated the item numbers of the schedule under which each article of furniture was to be charged and that the auditor general directed him to prepare the other pages of the book and assign each article to its item number of the schedule according to the designation given it in the sample sheet which he had prepared; and that the appellant had with him gone over a great many of the other sheets of the list and designated the items of the schedule under which the several articles were to be charged, according to the classification adopted by appellant in the preparation of the sample sheet. The witness testified that the “Quantities Book” had been made up in accordance with these suggestions of the appellant, and when completed a copy of the book had been delivered to the appellant. This copy had remained in the office of the auditor general and was produced in court. The sample sheet which the witness testified had been prepared by the appellant was produced and offered in evidence. This sample sheet designated all the wooden furniture in the room as coming under “Item 22” of the schedule. This is significant, for that furniture included a wardrobe and bookcase, which under the express provisions of the schedule were embraced under “Item 1” and were to be paid for by the lineal foot; in regard to those articles there was no question of what the word “foot” meant; there was a round table which was provided for under item 27; there were four easy chairs, which properly fell under item 2, at a fixed price for each chair; and there was a sofa which properly should have been classified under item 25. Yet, if this testimony was true, this appellant directed that all of these articles should be classified under item 22 and paid for at a higher price than the contract warranted. It may here be observed that in some invoices prior to the making of this book sofas had been billed under item 25 and tables under item 27, but the invoice referred to in the indictment was not presented and paid until some time after the “Quantities Book” had been made and in this invoice we find both sofas and tables charged and paid for at the higher rate provided by item 22, to which item of the schedule sofas and tables were in the sample page of the “Quantities Book,” alleged to have been prepared by this appellant, assigned. This evidence had a direct bearing upon the question of the responsibility of the appellant for the classification of the articles with regard to the item numbers of the schedule, and the resulting improper charge. This testimony may not have been true, the appellant contradicted it, but it was for the jury, and the fifteenth specification of error is dismissed.

The sixteenth specification of error is based on the admission in evidence of the “Book of Architects,” referred to in the arguments as the “Kidder Book.” The commonwealth had averred in the indictment that Huston had been employed as architect by the board of commissioners of public grounds and buildings and that it was his duty under his employment to certify to the correctness of the bills rendered by Sanderson under his said contract. It was competent upon the trial to prove that he had been so employed, and the best evidence of that fact was the written contract. That contract was made up of letters passing between Huston and the board and the resolution of the latter. The first letter was from the board, through its secretary, to Huston, asking that he propose the terms upon which he would undertake to “prepare plans and specifications, and detailed drawings for all interior fittings, furniture, electric and gas fixtures,” for the new capitol building. Huston replied by letter saying that he would undertake the work, specifying it in the exact language used in the communication from the board to him, for the sum of five per centum on cost of the work; in this letter he said: “I take the liberty of enclosing to you a hand book containing on page 760 the charges and professional practice of architects which will show to you that my work will be done as economically as possible for the State.” The board of commissioners of public grounds and buildings having received this letter and the book, after consideration thereof, passed a resolution appointing Huston, “to preparé the plans and specifications and all detailed drawings for all interior fittings, furniture, electric and gas fixtures for the new capitol at four per centum of the cost of the work.” The secretary of the board by letter, notified Huston of this appointment and returned him the book; and Huston, by letter, accepted the appointment and agreed to carry out the same as outlined. The letter of Huston referred to the very page of the book to which he desired to call the attention of the board of commissioners of public grounds and buildings, which dealt with the “ professional practice of architects,” and there can be no question that the printed matter to which he thus pointedly called their attention was to be considered in connection with the letters in ascertaining the terms of the contract. The evidence thus introduced involved no variance from the allegations of the indictment. The matter introduced in evidence did not establish or tend to establish that it was not Huston’s duty to certify to the correctness of the bills of the contractor, but on the contrary indicates that it was his duty to make such inspection as he found necessary “to enable him to decide when the successive installments or payments provided for in the contract or agreement are due and payable.” This assignment of error is without merit.

The seventeenth specification of error relates to the admission of testimony as to the amount of bills rendered by Sander-son and paid or already payable, on January 10, 1905, when upon motion of Mathues seconded by the appellant the board of commissioners of public grounds and buildings adopted a resolution directing the auditor general to make payments upon the Sanderson contract “in part or fully upon certificate of architect, according to the schedule of June 1904.” The consideration of this question necessarily involves a reference to the legislation under which the several defendants acted, and the duties which that legislation upon them imposed. The Act of- March 26, 1895, P. L. 22, expressly requires that all bills presented for claims arising out of any contract awarded by the board of commissioners of public grounds and buildings shall be approved by the board, before they are paid. The governor of the commonwealth is a member of that board, and an observance of the provisions of that statute would necessarily subject all such bills to his scrutiny. The general appropriation acts of 1903 and 1905, in their tenth sections, which appropriated the money paid out under the Sanderson contract, expressly required that all these bills should “be audited by the auditor general and state treasurer in the usual manner.” The defendants Snyder and Mathues had with regard to these bills, therefore, duties which were entirely distinct from those which appertained to their membership in the board of commissioners of public grounds and buildings; they were required to audit these bills just as they audited all other bills. The effect of the resolution of January 10,1905, was to remove one of the sentinels, the governor of the commonwealth, by the statute assigned to guard the state treasury. This may have been done in good faith, but it was irregular and whether it was done in good faith was a question to be decided from the circumstances then existing and from the results. It was, therefore, proper for the commonwealth to show the actual conditions then existing with regard to the Sanderson account. The evidence disclosed-that prior to January 10,1905, there had been paid out to Sanderson for alleged claims upon this contract $541,362.95; a large part of which had been so paid without the approval of the board of commissioners of public grounds and buildings and without any resolution authorizing it. There were at that time pending three invoices which had been presented by Sanderson, one dated January 4, 1905, for $280,703.90; a second bearing the same date for $338,130.50 and the third dated January 9, 1905, for $21,883.75, and all of these invoices were paid by these defendants within a few days after that resolution of January 10, 1905, was passed. The appellant and Mathues continued to pay out large sums of money under the form of this resolution, and the governor of the commonwealth never became aware of the immense aggregate which had been paid out under the Sanderson contract until November, 1905, when he was informed by the appellant that there had been paid out to Sanderson under this contract $2,195,000. The governor protested, a meeting of the board of commissioners of public grounds and buildings was called, Huston and Lewis were summoned and directed to countermand all orders for furniture, the manufacture of which had not been commenced, and that bills must be cut down so that, “they should not be more than what specially designed articles should be worth. ’ ’ The facts last mentioned appear from the testimony of this appellant. There was no error in the admission of this testimony, nor in the comments of the court on the resolution of January 10, 1905, which are the subject of the twenty-sixth specification of error, nor in the answer of the court to the twenty-first point submitted by the appellant, the refusal of which is the subject of the twenty-second specification of error. All these assignments are dismissed.

Evidence having been introduced showing that Huston and the witness, Lewis, had been present at a meeting of the board of commissioners of public grounds and buildings and had been instructed, in the presence of Snyder and Mathues, through its president, Governor Pennypacker, to try to induce the contractor to lower his bills, the witness testified that in obedience to those instructions he had an interview with the defendant Sanderson. The commonwealth then proposed to prove that Sanderson, when the witness delivered to him the message that the board desired him to lower his bills, said: “ I don’t see why they should require me to cut down my bills, because I have got to put up a big wad for other people.” This evidence was offered against the defendant Sanderson alone, and against him only was it admitted; the learned judge taking the precaution to say to the jury: “You understand that this offer is received only as it affects the defendant Sanderson.” This was a declaration made by the defendant Sanderson, with regard to the subject-matter, during the execution of the contract and before the invoice in the present case was presented. The declarations of a party charged with conspiracy are always evidence against himself. This specification of error is without merit.

The nineteenth specification of error is founded upon the sustaining of an objection to a question asked by counsel for the defendant of Governor Pennypacker when upon the stand: “Q. What, if you can tell, was Mr. Huston employed to do?” “Mr. Scarlett. I object to that. The record shows what Mr. Huston was employed to do.” The court sustained this objection. The resolution of the board of commissioners of public grounds and buildings employing Huston was in writing, the proposition of Huston which had preceded that resolution was in writing and his acceptance of the terms of the resolution was in writing. It was not, therefore, competent to show by the wfitness his interpretation of the meaning of that written contract. There was no offer to show that any other contract had been made. There was no offer to show that anything had by mistake, or otherwise, been omitted from the written contract. There was not even an offer to show that there was a parole contemporaneous contract which modified the terms of that which was written. Had the offer been to show, by a witness qualified as an expert in such matters, the nature of the duties of an architect under such a written employment as that of Huston, an entirely different question would have been presented; but the examination of the witness had not shown that he possessed the experience to qualify him as such a witness. The question, moreover, clearly indicated that it was not intended that the answer should refer to the duties of an architect generally under such an employment. The objection was properly sustained and the specification is dismissed.

The twentieth specification of error relates to the introduction of testimony as to the market value of the furniture covered by the invoice. This evidence was presented in rebuttal. The commonwealth had in its case in chief shown that sofas were in the invoice charged under item 22 at $18.40 per foot, instead of under item 25 at $12.90 per foot, and that tables were charged for under item 22 at $18.40 per foot instead of under item 27 at $10.80 per foot; and that sofas and tables had been charged for at a number of feet greatly exceeding their length. Sanderson’s reply to this had been that even if the item numbers were wrong, the commonwealth was not defrauded, for the reason that he was entitled to charge at the rates in the items named for each square foot of surface and that there were in the articles a great many more square feet of surface than he had charged for. The commonwealth then offered to produce evidence to show the market value of the furniture. This offer was made by the commonwealth for a number of purposes, but the learned judge of the court below held that it could be used for one purpose only and against the defendant Sanderson alone; “for the purpose of refuting the defense set up by the defendant Sanderson, that the term ‘per foot’ in the contract means ‘square foot,’ and that he believed it to be such, and for that purpose solely.” This question has been considered in disposing of the appeal of Sanderson, and we there held that the evidence was admissible against the defendant Sanderson for the purpose of showing that the construction of the contract which he set up would render that contract unconscionable. Whether, in view of the unusual terms of this contract ‘and the circumstances under which it was awarded and executed this evidence was admissible generally against all of the defendants it is not here necessary to determine. Had all the other defendants or any one of them joined in the contention of Sanderson that he was lawfully entitled to be paid, at the rate fixed in the item, for each square foot in the surface of the furniture, there certainly would be ground for holding the evidence admissible as to all who joined in that contention. The court did not, however, admit the testimony generally; it was admitted against Sanderson alone and against him its effect was limited to but one question: the meaning of the term “per foot” in the contract; and the good faith of Sanderson as to the meaning which he asserted. This went only to the amount which Sanderson was legally entitled to receive for the furniture. But the jury were instructed that the guilt or innocence of this appellant and the other defendants did not depend upon the legal right of Sanderson to recover, that they could not be convicted because they had misinterpreted the contract, or because they had been negligent or careless; that before the jury could convict any one of them they must be satisfied that that one knew the invoice to be false and fraudulent and acted upon it in pursuance of a corrupt combination. There seems to be no necessity that we should further add to what we have said upon this question in Sanderson's appeal. The assignment of error is dismissed. The language of the court in referring to this testimony, which is the subject of the twenty-fifth specification of error, clearly limited the effect of the evidence to the purpose for which it was admitted. The court said: “That was offered in evidence and received in evidence only for the purpose of enabling you to determine whether the term ‘per foot' meant ‘square foot’ under the contract, as alleged by the defendant Sanderson.” And the court then proceeds to define the bearing which this evidence had upon that single question. The twenty-fifth specification must also be dismissed.

The twenty-first, twenty-third and twenty-fourth specifications raise the same question, they each refer to the refusal of a point which, in different terms, practically asked the court for binding instructions. We have in the opinion in Sanderson’s appeal stated our reasons for holding that evidence was properly admitted as to the manner in which the schedule of 1904-05 was prepared; the ambiguous items of that schedule; the manner in which the contract was awarded to Sanderson for each and every item of the schedule; the varying and inconsistent constructions which all the defendants from time to time subsequently put upon that contract; the irregular manner in which the bills were certified and paid and all the acts of the parties; and that such evidence was proper to be considered by the jury, in connection with the action of the parties upon the particular invoice in question, in determining whether each of the several defendants acted upon the latter invoice and assisted in procuring its payment knowing it to be false and fraudulent. We have also in our opinion in the Sanderson case stated at length our reasons for holding that the evidence was such as to require the submission to the jury of the question, as to each of the defendants, whether he knew the invoice in question to be false and fraudulently assisted in procuring its payment in pursuance of a corrupt conspiracy with one or more of the other defendants. What we there said it is not necessary here to repeat. The appellant in his testimony and Mathues and Shumaker, through their counsel, presented the defense that they acted upon the certificate .of Huston, the architect, and were by that certificate protected. Positive duties with regard to these invoices were by law imposed upon Snyder, Mathues and Shumaker, and in the discharge of those duties they were to a certain extent vested with a discretion to pass upon questions of fact. Shumaker might properly obtain the advice of an expert in making up the schedule, but that would be simply for the purpose of enabling him intelligently to obey the requirements of the law as to the manner in which the schedule should be prepared. If the result was a schedule which was manifestly intended to be used as an instrument of fraud, then the question would arise whether Shumaker in good faith accepted the advice of the expert, believing it to be proper, and that would be a question of fact for the jury. Snyder and Mathues, as members of the board of commissioners of public grounds and buildings, might properly obtain information which they had reason to believe reliable in order to enable them intelligently to act in approving or disapproving the schedule and awarding the contract thereon, but the duty of honestly deciding would still be theirs. When the bills under the contract were presented to Shumaker for his approval, he might when acting consider any evidence which h'e had reason to believe reliable, including the certificate of an architect whom he had any reason to believe honest, but he could not disregard the evidence of his own senses and approve a bill which he knew to be false, even though an architect had certified it to be true. The duties of Snyder, as auditor general, and Mathues, as state treasurer, required them to audit all these bills and in doing so they had the power to administer oaths and hear witnesses; for them the certificate of the architect was evidence and only evidence, it did not relieve them of their duty; they must decide. If they approved bills which they knew to be false their act was unlawful, without regard to whether the bill was certified by an architect or not. The evidence in this case was such that the court could not declare, as matter of law, that it was insufficient to warrant a finding, as to each of these defendants, that he had certified, settled, approved and paid the invoice in question knowing it to be false; nor could the court declare, as matter of law, that the evidence was not sufficient to warrant a finding that the defendants had approved and paid the invoice, knowing it to be false, with fraudulent intent, in pursuance of a corrupt conspiracy to defraud the commonwealth. With regard to the defense of Snyder, Mathues and Shumaker that they relied upon the certificate of the architect it is not improper here to refer to the testimony of Snyder, this appellant, that he and Mathues did audit the bills rendered by Sanderson under his contract, and that in auditing the various invoices the bills were compared with the schedule of 1904^05. Now a comparison of the “ pink ” certificate of Huston, attached to the invoice referred to in the indictment, with the schedule of 1904r-05 would have at once shown that the certificate was false. The invoice contained a long list of designed sofas and tables and other articles, with the number of “feet” at which each was charged, and the number of the room in the building for which it was intended; the aggregate number of feet charged for the articles was 2,897f- and the footing of the bill was “Item No. 24; 2,897f ft. at $20.00 less 8 per cent, $18.40, = $53,318.60.” The “pink” certificate of Huston, upon which the state officers assert they relied, certified that Sanderson was entitled to the payment of $53,318.60, “on account of his contract with Commonwealth of Pennsylvania for interior furnishings and fittings under Item No, 24— 2897-f ft. at $20.00 less 8 per cent — $18.40 delivered at capitol building, Harrisburg, Pa.” The “Settlement Sheet,” which is a form made up by the state officers stating the nature of the claim presented and the contract under which it is to be paid, was in the following form:

“For new capitol building, furnishing the several departments, per schedule and contract 1904-05.

1906

“ See Certified Schedule, page 55.

March 28th.

“ Special Designed Sofas, Series (F), as per list, $53,318.60.” This settlement sheet was signed by Shumaker, as superintendent of public grounds and buildings and by the defendants Snyder and Mathues as members of the board of commissioners of public grounds and buildings, and it was settled by Snyder, as auditor general, and there was evidence that the defendant Mathues had directed one of his clerks to approve it, saying that he himself had examined it. The appellant, as auditor general, issued to Sanderson a warrant for the amount of this invoice and in' that warrant it is stated that the payment was “For special designed sofas, series F, Item No. 24, new capitol building.” It thus appears that in the invoice, the certificate of the architect and the warrant with which the bill was paid, the assertion is that the articles were to be paid for under “Item No. 24” of the schedule of 1904-05. The settlement sheet above quoted seems to afford some corroboration of the testimony of Snyder to the effect that bills were compared with the schedule, for it refers to the certified schedule, page 55, and turning to the schedule we find that the items from No. 1 to No. 29, inclusive, do appear upon page 55, but it is significant that no item number is entered upon the settlement sheet, and, also, that while both the settlement sheet and the warrant designate the claim as being for designed sofas, that designation does not appear in the certificate of Huston. They must have gone outside of Huston’s certificate. If, as testified to by appellant, this bill was compared with the schedule, one glance ought to have shown that the footing of the invoice and the certificate of Huston were wrong, for the schedule shows “Item 24 Decorating and painting, Series F, per foot, $3.00,’’and the bid of Sanderson upon this item was 16 per cent off — $2.52 net, per foot. If, therefore, Sanderson was to be paid under “Item 24” for 2,897f- feet, the rate at which he should have been paid was $2.52, instead of $18.40, the amount which he was paid. When Shumaker, Snyder and Mathues thus compared the bill with the schedule they must have at once detected that this particular certificate of Huston was false. Granting that they were not required to reduce the rate at which they would pay for the articles included in this invoice to $2.52 per foot, the rate for “Item No. 24” under which Huston certified that they were to be classed; for the reason that it appeared upon the face of the schedule of 1904-05, with which they were then comparing the invoice, that sofas did not properly come under “Item No. 24,” the fact still remains that Huston had certified that the work was done under item 24 of the contract. If they compared that certificate with'the schedule they at once discovered that Huston had either certified that the rate per foot was $18.40 when he ought to have certified that it was only $2.52, or they discovered that Huston knew nothing about the facts with regard to which he was certifying and that he had simply copied the item number and the rate per foot from the invoice which had been made up by Sanderson. The defendants did not settle with Sanderson at the rate fixed for “Item No. 24” under which, according to Huston’s certificate, the goods had been furnished. When they discovered that item 24 did not relate to sofas or any other kind of furniture, then, having discovered this manifest error, why did they not settle for these sofas under item 25, at $12.90 per foot and for these tables, under item 27 at $10.80 per foot, as explicitly provided for in the schedule which they were con-suiting? The words “Item 24” in Huston’s certificate may-have been a clerical error, resulting from the literal copying of the footings of Sanderson’s invoice, but,these defendants dealt with that certificate precisely as they found it. The certificate did not state that sofas and tables were to be settled for under “Item 22.” All these matters were for the consideration of the jury, and to the jury the case must necessarily go. The twenty-first, twenty-third and twenty-fourth specifications of error are dismissed.

The twenty-seventh specification assigns for error three distinct sentences, quoted from widely separate parts of the charge. We have in the Sanderson appeal and in the preceding portion of this opinion stated our reasons for holding that it was proper for the jury to take into consideration the part which Snyder took in adopting the schedule; in passing upon the question whether he knew that the invoice rendered under that schedule was false. The other two sentences state a perfectly well recognized rule of evidence that where the acts of parties show that they are evidently acting in concert in pursuance of a common design and for the accomplishment of a common purpose, a jury may be permitted to infer that such concerted action is the result of an agreement between the parties so acting. The argument Ion behalf of appellant that the part of the charge quoted might have led the jury to find the defendants Snyder, Shumaker and Mathues guilty, merely because they performed the acts which they were compelled by law to do, is conclusively met by the language of the charge as a whole. The learned judge repeatedly instructed the jury that no one of these defendants could be convicted because of what he had lawfully done, nor because of what he had mistakenly done, nor because of what he had negligently done; that the only acts of the defendants which could be considered in determining the question whether they were guilty of a criminal conspiracy were their unlawful acts, intentionally and fraudulently done in pursuance of an agreement to defraud the commonwealth. This specification is dismissed.

We have in the twenty-eighth specification of error another attempt to group distinct sentences quoted from widely separate parts of the charge. The first three sentences quoted in this specification are to be considered in their relation to the question with regard to which the learned judge was then instructing the jury. That question was, “ Did Huston know that this bill was false?” The judge in his charge considered and fairly presented to the jury the evidence as to what each one of the parties charged had done with regard to the particular invoice referred to in the indictment, and in doing so considered the defendants separately and individually; first stating what Sanderson had done, then what Huston had done, then what Snyder, the appellant, had done, and then, in order, the others. Thus presenting the facts, in an orderly manner, showing the connection of each party charged with the invoice, the judge in referring to the case of each individual unequivocally told the jury that when the several parties performed their parts with regard to this invoice they were bound only to the exercise of good faith; and that there could be no conviction of any individual who did not, at the time he performed his part with regard to this invoice, know that the invoice was false and perform his part in procuring its payment in pursuance of a fraudulent conspiracy to defraud the State. Huston, although not being tried, was a party charged, and Sanderson might have been convicted of having conspired with Huston, even though all the other defendants were acquitted. It was, therefore, proper for the judge to submit to the jury the question whether Huston knew that the invoice was false and certified it, knowing it to be false, under an agreement with Sanderson, or any one or more of the other defendants, to defraud the commonwealth. It was in referring to the evidence bearing upon the question of Huston’s knowledge that the bill was false, in case the jury found it to be false, that the judge used the language quoted in the first three sentences of this specification of error. The language was entirely proper, and the jury could not possibly have misunderstood its meaning. The fourth sentence quoted under this specification of error is taken from an entirely different part of the' charge and refers to the testimony of the appellant, Snyder, that he relied upon the architect’s certificate. The court fairly stated the contention of the defendant and the substance of his testimony in the charge, and it was only right and proper that the court should at the same time state the testimony upon the other side of that question. There was a conflict of testimony as to what this appellant had done with regard to those certificates, and he has no just ground for complaint as to the manner in which the judge submitted to the jury that conflicting testimony. The suggestion that the evidence of Lewis, the witness whose testimony is referred to in the sentence of the charge just criticised, involved a variance in the testimony from the allegations of the indictment, has been considered in disposing of the appeal of Sanderson. This specification of error is overruled.

The complaint of the twenty-ninth specification of error that the charge was inadequate and misleading, is not well founded. The learned judge after a very full and impartial charge said, addressing counsel for the defendants: “Gentlemen, is there anything we have omitted which you think proper to be said to the jury?” Counsel for this appellant called the attention of the court to one particular part of the testimony of this appellant, and the court directed the jury to take into consideration that evidence. The learned judge very fairly presented the contention of this appellant, and the manner in which the question of his guilt was submitted to the jury practically eliminated, as against this appellant, every question as to the authority of Huston, the details which he was to incorporate in his certificates, and the truth of his certificates. The jury were instructed that if Snyder, Mathues or Shumaker in good faith relied upon the certificate of Huston, they were not guilty of the offense charged and must be acquitted. We have hereinbefore quoted some of the parts of the general charge in which the jury were repeatedly instructed that no one of the defendants could be convicted because he had misinterpreted the contract, or because he was negligent in the_ discharge of his official duty, or because he made a mistake, that each of those charged must be judged by his own acts alone and that no one of them could be convicted unless he knew that the invoice was false and certified, approved and paid it knowing it to be false, with intent to defraud the commonwealth, in pursuance of an agreement with some one or more of those charged. These instructions were reiterated, particularly as bearing upon the cases of Snyder, Mathues and Shumaker, by the court in affirming the first, second, fifth, sixth, seventh and eleventh points submitted by those defendants in their prayers for instructions. These instructions were, upon this question, as broad as these particular defendants, through their learned counsel, could make them. The court, by affirming the third point submitted by the defendants, instructed the jury: “Even if the defendants Snyder, Mathues and Shumaker may not have been justified in the view of the law in relying upon the architect's certificates, if they did in good faith rely upon that certificate, they are not guilty of conspiracy, and the verdict of the jury must be for the defendants,'' and this instruction was practically reiterated in affirming the fourth and nineteenth points. The affirmance by the court of the seventh point instructed that the defendants could not be convicted unless the evidence established a conspiracy to cheat and defraud the state by the invoice alleged in the indictment to be fraudulent, “and unless the jury were so satisfied by that evidence there could be no conviction, even though they believed that the evidence did show a conspiracy to cheat and defraud the state by other invoices.” The affirmance of the ninth point charged the jury that the mere fact that the state was overcharged was not sufficient to warrant the jury in concluding that there was a conspiracy, to which the defendants Snyder, Mathues and Shumaker were parties. This proposition is more broadly stated in the tenth point, which was affirmed, as follows: “that the price of the goods furnished by Sanderson to the state and paid for by it cannot be taken into consideration by the jury in determining the guilt or innocence of Snyder, Mathues or Shumaker of the charges contained in the indictment, unless the jury shall be convinced beyond a reasonable doubt that the price charged by Sanderson was in excess of that allowed by his contract with the state and that Snyder, Mathues and Shumaker at that time knew that such price was in excess of that allowed under the Sanderson contract.” The instructions above quoted are in entire harmony with the general charge. These instructions submitted the cases of Snyder, Mathues and Shumaker to the jury entirely free from any question as to the authority of Huston, or as to the extent of his duty to certify, or as to the authority of the board to employ him or as to the truth of his certificate. If these defendants relied upon his certificate, in good faith believing it to be true, they could not be convicted. We find no error in this record.

The judgment is affirmed and it is ordered that the appellant, William P. Snyder, appear in the court below at such time as he may be there called and that he be by that court committed to serve that part of the sentence which had not been performed at the time this appeal was made a supersedeas.