_ By the time the State Supreme Court came to pass upon Cowperwood's
plea for a reversal of the lower court and the granting of a new
trial, the rumor of his connection with Aileen had spread far and
wide. As has been seen, it had done and was still doing him much
damage. It confirmed the impression, which the politicians had
originally tried to create, that Cowperwood was the true criminal
and Stener the victim. His semi-legitimate financial subtlety,
backed indeed by his financial genius, but certainly on this account
not worse than that being practiced in peace and quiet and with
much applause in many other quarters--was now seen to be
Machiavellian trickery of the most dangerous type. He had a wife
and two children; and without knowing what his real thoughts had
been the fruitfully imaginative public jumped to the conclusion
that he had been on the verge of deserting them, divorcing Lillian,
and marrying Aileen. This was criminal enough in itself, from
the conservative point of view; but when taken in connection with
his financial record, his trial, conviction, and general bankruptcy
situation, the public was inclined to believe that he was all the
politicians said he was. He ought to be convicted. The Supreme
Court ought not to grant his prayer for a new trial. It is thus
that our inmost thoughts and intentions burst at times via no known
material agency into public thoughts. People know, when they
cannot apparently possibly know why they know. There is such a
thing as thought-transference and transcendentalism of ideas.
It reached, for one thing, the ears of the five judges of the State
Supreme Court and of the Governor of the State.
During the four weeks Cowperwood had been free on a certificate
of reasonable doubt both Harper Steger and Dennis Shannon appeared
before the judges of the State Supreme Court, and argued pro and
con as to the reasonableness of granting a new trial. Through his
lawyer, Cowperwood made a learned appeal to the Supreme Court
judges, showing how he had been unfairly indicted in the first
place, how there was no real substantial evidence on which to
base a charge of larceny or anything else. It took Steger two
hours and ten minutes to make his argument, and District-Attorney
Shannon longer to make his reply, during which the five judges on
the bench, men of considerable legal experience but no great
financial understanding, listened with rapt attention. Three of
them, Judges Smithson, Rainey, and Beckwith, men most amenable to
the political feeling of the time and the wishes of the bosses,
were little interested in this story of Cowperwood's transaction,
particularly since his relations with Butler's daughter and Butler's
consequent opposition to him had come to them. They fancied that
in a way they were considering the whole matter fairly and
impartially; but the manner in which Cowperwood had treated Butler
was never out of their minds. Two of them, Judges Marvin and
Rafalsky, who were men of larger sympathies and understanding, but
of no greater political freedom, did feel that Cowperwood had been
badly used thus far, but they did not see what they could do about
it. He had put himself in a most unsatisfactory position, politically
and socially. They understood and took into consideration his
great financial and social losses which Steger described accurately;
and one of them, Judge Rafalsky, because of a similar event in his
own life in so far as a girl was concerned, was inclined to argue
strongly against the conviction of Cowperwood; but, owing to his
political connections and obligations, he realized that it would
not be wise politically to stand out against what was wanted.
Still, when he and Marvin learned that Judges Smithson, Rainey, and
Beckwith were inclined to convict Cowperwood without much argument,
they decided to hand down a dissenting opinion. The point involved
was a very knotty one. Cowperwood might carry it to the Supreme
Court of the United States on some fundamental principle of liberty
of action. Anyhow, other judges in other courts in Pennsylvania
and elsewhere would be inclined to examine the decision in this
case, it was so important. The minority decided that it would not
do them any harm to hand down a dissenting opinion. The politicians
would not mind as long as Cowperwood was convicted--would like it
better, in fact. It looked fairer. Besides, Marvin and Rafalsky
did not care to be included, if they could help it, with Smithson,
Rainey, and Beckwith in a sweeping condemnation of Cowperwood.
So all five judges fancied they were considering the whole matter
rather fairly and impartially, as men will under such circumstances.
Smithson, speaking for himself and Judges Rainey and Beckwith on
the eleventh of February, 1872, said:
"The defendant, Frank A. Cowperwood, asks that the finding of
the jury in the lower court (the State of Pennsylvania vs. Frank
A. Cowperwood) be reversed and a new trial granted. This court
cannot see that any substantial injustice has been done the
defendant. [Here followed a rather lengthy resume of the history
of the case, in which it was pointed out that the custom and
precedent of the treasurer's office, to say nothing of
Cowperwood's easy method of doing business with the city
treasury, could have nothing to do with his responsibility for
failure to observe both the spirit and the letter of the law.]
The obtaining of goods under color of legal process [went on
Judge Smithson, speaking for the majority] may amount to
larceny. In the present case it was the province of the jury
to ascertain the felonious intent. They have settled that
against the defendant as a question of fact, and the court
cannot say that there was not sufficient evidence to sustain
the verdict. For what purpose did the defendant get the check?
He was upon the eve of failure. He had already hypothecated
for his own debts the loan of the city placed in his hands for
sale--he had unlawfully obtained five hundred thousand dollars
in cash as loans; and it is reasonable to suppose that he
could obtain nothing more from the city treasury by any
ordinary means. Then it is that he goes there, and, by means
of a falsehood implied if not actual, obtains sixty thousand
dollars more. The jury has found the intent with which this
was done."
It was in these words that Cowperwood's appeal for a new trial was
denied by the majority.
For himself and Judge Rafalsky, Judge Marvin, dissenting, wrote:
"It is plain from the evidence in the case that Mr. Cowperwood
did not receive the check without authority as agent to do so,
and it has not been clearly demonstrated that within his
capacity as agent he did not perform or intend to perform the
full measure of the obligation which the receipt of this check
implied. It was shown in the trial that as a matter of policy
it was understood that purchases for the sinking-fund should
not be known or understood in the market or by the public in
that light, and that Mr. Cowperwood as agent was to have an
absolutely free hand in the disposal of his assets and
liabilities so long as the ultimate result was satisfactory.
There was no particular time when the loan was to be bought,
nor was there any particular amount mentioned at any time to
be purchased. Unless the defendant intended at the time he
received the check fraudulently to appropriate it he could not
be convicted even on the first count. The verdict of the jury
does not establish this fact; the evidence does not show
conclusively that it could be established; and the same jury,
upon three other counts, found the defendant guilty without
the semblance of shadow of evidence. How can we say that
their conclusions upon the first count are unerring when they
so palpably erred on the other counts? It is the opinion of
the minority that the verdict of the jury in charging larceny
on the first count is not valid, and that that verdict should
be set aside and a new trial granted."
Judge Rafalsky, a meditative and yet practical man of Jewish
extraction but peculiarly American appearance, felt called upon
to write a third opinion which should especially reflect his own
cogitation and be a criticism on the majority as well as a slight
variation from and addition to the points on which he agreed with
Judge Marvin. It was a knotty question, this, of Cowperwood's
guilt, and, aside from the political necessity of convicting him,
nowhere was it more clearly shown than in these varying opinions
of the superior court. Judge Rafalsky held, for instance, that
if a crime had been committed at all, it was not that known as
larceny, and he went on to add:
"It is impossible, from the evidence, to come to the
conclusion either that Cowperwood did not intend shortly to
deliver the loan or that Albert Stires, the chief clerk, or
the city treasurer did not intend to part not only with the
possession, but also and absolutely with the property in the
check and the money represented by it. It was testified by
Mr. Stires that Mr. Cowperwood said he had bought certificates
of city loan to this amount, and it has not been clearly
demonstrated that he had not. His non-placement of the same
in the sinking-fund must in all fairness, the letter of the
law to the contrary notwithstanding, be looked upon and judged
in the light of custom. Was it his custom so to do? In my
judgment the doctrine now announced by the majority of the
court extends the crime of constructive larceny to such limits
that any business man who engages in extensive and perfectly
legitimate stock transactions may, before he knows it, by a
sudden panic in the market or a fire, as in this instance,
become a felon. When a principle is asserted which
establishes such a precedent, and may lead to such results,
it is, to say the least, startling."
While he was notably comforted by the dissenting opinions of the
judges in minority, and while he had been schooling himself to
expect the worst in this connection and had been arranging his
affairs as well as he could in anticipation of it, Cowperwood was
still bitterly disappointed. It would be untrue to say that,
strong and self-reliant as he normally was, he did not suffer.
He was not without sensibilities of the highest order, only they
were governed and controlled in him by that cold iron thing, his
reason, which never forsook him. There was no further appeal
possible save to the United States Supreme Court, as Steger pointed
out, and there only on the constitutionality of some phase of the
decision and his rights as a citizen, of which the Supreme Court
of the United States must take cognizance. This was a tedious
and expensive thing to do. It was not exactly obvious at the
moment on what point he could make an appeal. It would involve
a long delay--perhaps a year and a half, perhaps longer, at the
end of which period he might have to serve his prison term anyhow,
and pending which he would certainly have to undergo incarceration
for a time.
Cowperwood mused speculatively for a few moments after hearing
Steger's presentation of the case. Then he said: "Well, it looks
as if I have to go to jail or leave the country, and I've decided
on jail. I can fight this out right here in Philadelphia in the
long run and win. I can get that decision reversed in the Supreme
Court, or I can get the Governor to pardon me after a time, I
think. I'm not going to run away, and everybody knows I'm not.
These people who think they have me down haven't got one corner
of me whipped. I'll get out of this thing after a while, and when
I do I'll show some of these petty little politicians what it
means to put up a real fight. They'll never get a damned dollar
out of me now--not a dollar! I did intend to pay that five hundred
thousand dollars some time if they had let me go. Now they can
whistle!"
He set his teeth and his gray eyes fairly snapped their
determination.
"Well, I've done all I can, Frank," pleaded Steger, sympathetically.
"You'll do me the justice to say that I put up the best fight I
knew how. I may not know how--you'll have to answer for that--
but within my limits I've done the best I can. I can do a few
things more to carry this thing on, if you want me to, but I'm
going to leave it to you now. Whatever you say goes."
"Don't talk nonsense at this stage, Harper," replied Cowperwood
almost testily. "I know whether I'm satisfied or not, and I'd
soon tell you if I wasn't. I think you might as well go on and
see if you can find some definite grounds for carrying it to the
Supreme Court, but meanwhile I'll begin my sentence. I suppose
Payderson will be naming a day to have me brought before him now
shortly."
"It depends on how you'd like to have it, Frank. I could get a
stay of sentence for a week maybe, or ten days, if it will do you
any good. Shannon won't make any objection to that, I'm sure.
There's only one hitch. Jaspers will be around here tomorrow
looking for you. It's his duty to take you into custody again,
once he's notified that your appeal has been denied. He'll be
wanting to lock you up unless you pay him, but we can fix that.
If you do want to wait, and want any time off, I suppose he'll
arrange to let you out with a deputy; but I'm afraid you'll have
to stay there nights. They're pretty strict about that since that
Albertson case of a few years ago."
Steger referred to the case of a noted bank cashier who, being
let out of the county jail at night in the alleged custody of a
deputy, was permitted to escape. There had been emphatic and
severe condemnation of the sheriff's office at the time, and since
then, repute or no repute, money or no money, convicted criminals
were supposed to stay in the county jail at night at least.
Cowperwood meditated this calmly, looking out of the lawyer's
window into Second Street. He did not much fear anything that
might happen to him in Jaspers's charge since his first taste of
that gentleman's hospitality, although he did object to spending
nights in the county jail when his general term of imprisonment
was being reduced no whit thereby. All that he could do now in
connection with his affairs, unless he could have months of freedom,
could be as well adjusted from a prison cell as from his Third
Street office--not quite, but nearly so. Anyhow, why parley? He
was facing a prison term, and he might as well accept it without
further ado. He might take a day or two finally to look after
his affairs; but beyond that, why bother?
"When, in the ordinary course of events, if you did nothing at all,
would I come up for sentence?"
"Oh, Friday or Monday, I fancy," replied Steger. "I don't know
what move Shannon is planning to make in this matter. I thought
I'd walk around and see him in a little while."
"I think you'd better do that," replied Cowperwood. "Friday or
Monday will suit me, either way. I'm really not particular.
Better make it Monday if you can. You don't suppose there is any
way you can induce Jaspers to keep his hands off until then? He
knows I'm perfectly responsible."
"I don't know, Frank, I'm sure; I'll see. I'll go around and talk
to him to-night. Perhaps a hundred dollars will make him relax
the rigor of his rules that much."
Cowperwood smiled grimly.
"I fancy a hundred dollars would make Jaspers relax a whole lot of
rules," he replied, and he got up to go.
Steger arose also. "I'll see both these people, and then I'll
call around at your house. You'll be in, will you, after dinner?"
"Yes."
They slipped on their overcoats and went out into the cold February
day, Cowperwood back to his Third Street office, Steger to see
Shannon and Jaspers. _