¶1 On Petition for Rehearing.
¶2 The appellants have filed a petition for rehearing, in which they assert that this court failed to discharge adequately the constitutional mandate resting upon it to give a statement in writing upon each question arising in the record. (Section 5, Article 7, Constitution of Indiana.) A question arising in the record, within the meaning of this provision, must be one, “the decision of which is necessary to the final determination of the cause; and which the record presents with a fullness and distinctness rendering it possible for the Court to comprehend it in all its bearings.” Willets v. Ridgway (1857), 9 Ind. 367, 370.
¶3 In their petition for rehearing, the appellants urge that four of the alleged errors not previously considered ought to result in a reversal, and we have concluded to pass upon these propositions. They are: (1) Error on the part of the trial court in denying the separate *230 motions of the appellant Weer for his discharge prior to the trial; (2) error in the admission of the testimony of an examiner for the Gross Income Tax Division relating to information which he obtained in his official capacity and conversations he had with the appellant Rose; (3) error arising on the trial by reason of the refusal of the court below to sustain the motion of the appellant Weer to withdraw the submission; and (4) error in the giving of the court’s instruction No. 4. We shall consider these alleged errors in the order stated above.
¶4 In the principal opinion we discussed Weer’s motion for discharge, but unfortunately referred to it as having been made by Rose. We welcome the opportunity to make the correction, and with that modification we are satisfied with the disposition of the claim that the trial court erred in denying Weer’s motion to be discharged.
¶5 The alleged error with respect to the admission of the testimony of the examiner for the Gross Income Tax Division was predicated upon assignments in the motion for a new trial, of which the following is typical:
“273. Error of law in admitting in evidence, over objections and exceptions, of testimony of one Kimball, an examiner for the Gross Income Tax Division of Indiana, of statements made to him by the defendant Rose, in connection with the accounts between Schuyler Róse, Inc., and the City of South Bend, and the fact that the books of the company did not reflect the same amounts as to deliveries as the amounts paid by said City to said corporation; for the reason that as conversations in the course of an income tax audit, same were privileged ; it was a violation of the constitutional rights of defendants to permit such testimony; self-incriminatory; and that the statutes and constitution of Indiana, and of the United States, did not permit such testimony except in connection with *231 an investigation of alleged tax violations or a prosecution for same.”
¶6 In passing upon the sufficiency of another assignment of the same character, this court said in Brown v. State (1939), 216 Ind. 106, 108, 23 N. E. (2d) 267, 268, 269:
“It will be noted, therefore, that the motion for a new trial does not disclose whether the questions complained of were propounded on behalf of the state or the defendant . . .; what objections, if any, were made to them at the time; or whether exceptions were reserved. Such indefinite assignments do not present anything for review on appeal.
“When error is predicated upon the admission or rejection of testimony, the motion for a new trial should set out the question and answer, if there was one, or the substance thereof. This was done in the case at bar, but that is not enough. The objection urged below should also be set forth, together with the ruling of the court with respect thereto, and it should be made to appear that a timely exception was saved. This is necessary for two good reasons: (1) that the trial court may be fully apprised of the alleged error so that it may have an opportunity to correct the ruling by granting the motion if it deems it proper to do so; and (2) that this court may be able to consider the matter on appeal without being burdened to search the record for grounds to reverse.”
¶7 The requirement with reference to reserving exceptions has since been obviated by Rule 1-5, 1940 Revision.
¶8 It does not appear from the specification in the motion for a new trial quoted above whether the testimony complained of was offered on behalf of the State or the defendants. We cannot determine whether the objections to the admission of the evidence now relied on were made at the trial or first conceived when the motion for a new trial was prepared. We do *232 not have the benefit of the trial court’s ruling. It is apparent that this assignment does not present any question to this court.
¶9 The motion of the appellant Weer to withdraw the submission of the case to the jury was based upon a newspaper account published during the trial, to the effect that one of the State’s witnesses had been threatened on account of his testimony and that police had been detailed to guard his home. The motion charged that this newspaper article was inspired by a deputy prosecuting attorney, but this was denied and that part of the charge was then withdrawn. On the day following the publication, the newspaper retracted the story. The court had previously admonished the jury not to read newspaper accounts of the trial, and if they violated this order, which we cannot presume, it would be reasonable to suppose that they also read the retraction, which was as widely circulated as the preceding article. We cannot say that the trial court abused its discretion in refusing to withdraw the submission.
¶10 The court’s instruction No. 4 was as follows:
“Evidence in proof of conspiracy will generally be circumstantial, and it is not necessary, for the purpose of showing the existence of the conspiracy, for the State to' prove that the defendants came together and actually agreed upon a common design and purpose, and agreed to pursue such common design and purpose, in the manner agreed upon. It is sufficient if such common design and purpose is shown to your satisfaction beyond a reasonable doubt by circumstantial evidence.”
¶11 The part of this instruction objected to is the statement that it was not necessary for the State to prove that the defendants “came together and actually agreed upon” a.common design and purpose. The appellants insist that an agreement is of the essence of a con *233 spiracy, and in this they are correct; although it is not necessary for the parties to physically come together or assemble for the purpose of forming such an agreement. In our opinion, all possibility of the jury having been misled by this instruction was removed by instruction 10 requested by the state and given by the court, which was as follows:
“I instruct you, Ladies and Gentlemen, that in order for you to find the defendants guilty of the crime of conspiracy, you must find beyond a reasonable doubt that there was an intelligent and deliberate agreement to do the acts and commit the offense charged in the indictment, that is, to take, steal and carry away money belonging to the City of South Bend, Indiana, in a sum of more than Twenty-five ($25.00) Dollars in the manner described in the indictment, but it was not necessary that there be a formal agreement between the parties to do the acts charged.
“It is sufficient that the minds of the defendants, J. C. Weer and Jay Rose, met understanding^ so as to bring about an intelligent and deliberate ■ agreement to do the acts and commit the offense charged although such an agreement was not manifest by any formal words. Concurrence of sentiment and corroborative conduct in an unlawful and criminal enterprise and not formality of speech are the essential ingredients of criminal conspiracy.”
¶12 Considering these instructions together, the jury must have understood that a conspiracy cannot be established without an agreement, but that a physical meeting of the parties for the purpose of forming such an agreement is not essential.
¶13 The petition for rehearing is denied.
¶14 Note.—Reported in 37 N. E. (2d) 537.