At two o’clock sharp Dennis Shannon, as district attorney, began his
opening address. He stated in a very simple, kindly way—for he had a
most engaging manner—that the indictment as here presented charged Mr.
Frank A. Cowperwood, who was sitting at the table inside the jury-rail,
first with larceny, second with embezzlement, third with larceny as
bailee, and fourth with embezzlement of a certain sum of money—a
specific sum, to wit, sixty thousand dollars—on a check given him
(drawn to his order) October 9, 1871, which was intended to reimburse
him for a certain number of certificates of city loan, which he as
agent or bailee of the check was supposed to have purchased for the
city sinking-fund on the order of the city treasurer (under some form
of agreement which had been in existence between them, and which had
been in force for some time)—said fund being intended to take up such
certificates as they might mature in the hands of holders and be
presented for payment—for which purpose, however, the check in question
had never been used.
“Now, gentlemen,” said Mr. Shannon, very quietly, “before we go into
this very simple question of whether Mr. Cowperwood did or did not on
the date in question get from the city treasurer sixty thousand
dollars, for which he made no honest return, let me explain to you just
what the people mean when they charge him first with larceny, second
with embezzlement, third with larceny as bailee, and fourth with
embezzlement on a check. Now, as you see, there are four counts here,
as we lawyers term them, and the reason there are four counts is as
follows: A man may be guilty of larceny and embezzlement at the same
time, or of larceny or embezzlement separately, and without being
guilty of the other, and the district attorney representing the people
might be uncertain, not that he was not guilty of both, but that it
might not be possible to present the evidence under one count, so as to
insure his adequate punishment for a crime which in a way involved
both. In such cases, gentlemen, it is customary to indict a man under
separate counts, as has been done in this case. Now, the four counts in
this case, in a way, overlap and confirm each other, and it will be
your duty, after we have explained their nature and character and
presented the evidence, to say whether the defendant is guilty on one
count or the other, or on two or three of the counts, or on all four,
just as you see fit and proper—or, to put it in a better way, as the
evidence warrants. Larceny, as you may or may not know, is the act of
taking away the goods or chattels of another without his knowledge or
consent, and embezzlement is the fraudulent appropriation to one’s own
use of what is intrusted to one’s care and management, especially
money. Larceny as bailee, on the other hand, is simply a more definite
form of larceny wherein one fixes the act of carrying away the goods of
another without his knowledge or consent on the person to whom the
goods were delivered in trust that is, the agent or bailee.
Embezzlement on a check, which constitutes the fourth charge, is simply
a more definite form of fixing charge number two in an exact way and
signifies appropriating the money on a check given for a certain
definite purpose. All of these charges, as you can see, gentlemen, are
in a way synonymous. They overlap and overlay each other. The people,
through their representative, the district attorney, contend that Mr.
Cowperwood, the defendant here, is guilty of all four charges. So now,
gentlemen, we will proceed to the history of this crime, which proves
to me as an individual that this defendant has one of the most subtle
and dangerous minds of the criminal financier type, and we hope by
witnesses to prove that to you, also.”
Shannon, because the rules of evidence and court procedure here
admitted of no interruption of the prosecution in presenting a case,
then went on to describe from his own point of view how Cowperwood had
first met Stener; how he had wormed himself into his confidence; how
little financial knowledge Stener had, and so forth; coming down
finally to the day the check for sixty thousand dollars was given
Cowperwood; how Stener, as treasurer, claimed that he knew nothing of
its delivery, which constituted the base of the charge of larceny; how
Cowperwood, having it, misappropriated the certificates supposed to
have been purchased for the sinking-fund, if they were purchased at
all—all of which Shannon said constituted the crimes with which the
defendant was charged, and of which he was unquestionably guilty.
“We have direct and positive evidence of all that we have thus far
contended, gentlemen,” Mr. Shannon concluded violently. “This is not a
matter of hearsay or theory, but of fact. You will be shown by direct
testimony which cannot be shaken just how it was done. If, after you
have heard all this, you still think this man is innocent—that he did
not commit the crimes with which he is charged—it is your business to
acquit him. On the other hand, if you think the witnesses whom we shall
put on the stand are telling the truth, then it is your business to
convict him, to find a verdict for the people as against the defendant.
I thank you for your attention.”
The jurors stirred comfortably and took positions of ease, in which
they thought they were to rest for the time; but their idle comfort was
of short duration for Shannon now called out the name of George W.
Stener, who came hurrying forward very pale, very flaccid, very
tired-looking. His eyes, as he took his seat in the witness-chair,
laying his hand on the Bible and swearing to tell the truth, roved in a
restless, nervous manner.
His voice was a little weak as he started to give his testimony. He
told first how he had met Cowperwood in the early months of 1866—he
could not remember the exact day; it was during his first term as city
treasurer—he had been elected to the office in the fall of 1864. He had
been troubled about the condition of city loan, which was below par,
and which could not be sold by the city legally at anything but par.
Cowperwood had been recommended to him by some one—Mr. Strobik, he
believed, though he couldn’t be sure. It was the custom of city
treasurers to employ brokers, or a broker, in a crisis of this kind,
and he was merely following what had been the custom. He went on to
describe, under steady promptings and questions from the incisive mind
of Shannon, just what the nature of this first conversation was—he
remembered it fairly well; how Mr. Cowperwood had said he thought he
could do what was wanted; how he had gone away and drawn up a plan or
thought one out; and how he had returned and laid it before Stener.
Under Shannon’s skillful guidance Stener elucidated just what this
scheme was—which wasn’t exactly so flattering to the honesty of men in
general as it was a testimonial to their subtlety and skill.
After much discussion of Stener’s and Cowperwood’s relations the story
finally got down to the preceding October, when by reason of
companionship, long business understanding, mutually prosperous
relationship, etc., the place had been reached where, it was explained,
Cowperwood was not only handling several millions of city loan
annually, buying and selling for the city and trading in it generally,
but in the bargain had secured one five hundred thousand dollars’ worth
of city money at an exceedingly low rate of interest, which was being
invested for himself and Stener in profitable street-car ventures of
one kind and another. Stener was not anxious to be altogether clear on
this point; but Shannon, seeing that he was later to prosecute Stener
himself for this very crime of embezzlement, and that Steger would soon
follow in cross-examination, was not willing to let him be hazy.
Shannon wanted to fix Cowperwood in the minds of the jury as a clever,
tricky person, and by degrees he certainly managed to indicate a very
subtle-minded man. Occasionally, as one sharp point after another of
Cowperwood’s skill was brought out and made moderately clear, one juror
or another turned to look at Cowperwood. And he noting this and in
order to impress them all as favorably as possible merely gazed
Stenerward with a steady air of intelligence and comprehension.
The examination now came down to the matter of the particular check for
sixty thousand dollars which Albert Stires had handed Cowperwood on the
afternoon—late—of October 9, 1871. Shannon showed Stener the check
itself. Had he ever seen it? Yes. Where? In the office of District
Attorney Pettie on October 20th, or thereabouts last. Was that the
first time he had seen it? Yes. Had he ever heard about it before then?
Yes. When? On October 10th last. Would he kindly tell the jury in his
own way just how and under what circumstances he first heard of it
then? Stener twisted uncomfortably in his chair. It was a hard thing to
do. It was not a pleasant commentary on his own character and degree of
moral stamina, to say the least. However, he cleared his throat again
and began a description of that small but bitter section of his life’s
drama in which Cowperwood, finding himself in a tight place and about
to fail, had come to him at his office and demanded that he loan him
three hundred thousand dollars more in one lump sum.
There was considerable bickering just at this point between Steger and
Shannon, for the former was very anxious to make it appear that Stener
was lying out of the whole cloth about this. Steger got in his
objection at this point, and created a considerable diversion from the
main theme, because Stener kept saying he “thought” or he “believed.”
“Object!” shouted Steger, repeatedly. “I move that that be stricken
from the record as incompetent, irrelevant, and immaterial. The witness
is not allowed to say what he thinks, and the prosecution knows it very
well.”
“Your honor,” insisted Shannon, “I am doing the best I can to have the
witness tell a plain, straightforward story, and I think that it is
obvious that he is doing so.”
“Object!” reiterated Steger, vociferously. “Your honor, I insist that
the district attorney has no right to prejudice the minds of the jury
by flattering estimates of the sincerity of the witness. What he thinks
of the witness and his sincerity is of no importance in this case. I
must ask that your honor caution him plainly in this matter.”
“Objection sustained,” declared Judge Payderson, “the prosecution will
please be more explicit”; and Shannon went on with his case.
Stener’s testimony, in one respect, was most important, for it made
plain what Cowperwood did not want brought out—namely, that he and
Stener had had a dispute before this; that Stener had distinctly told
Cowperwood that he would not loan him any more money; that Cowperwood
had told Stener, on the day before he secured this check, and again on
that very day, that he was in a very desperate situation financially,
and that if he were not assisted to the extent of three hundred
thousand dollars he would fail, and that then both he and Stener would
be ruined. On the morning of this day, according to Stener, he had sent
Cowperwood a letter ordering him to cease purchasing city loan
certificates for the sinking-fund. It was after their conversation on
the same afternoon that Cowperwood surreptitiously secured the check
for sixty thousand dollars from Albert Stires without his (Stener’s)
knowledge; and it was subsequent to this latter again that Stener,
sending Albert to demand the return of the check, was refused, though
the next day at five o’clock in the afternoon Cowperwood made an
assignment. And the certificates for which the check had been purloined
were not in the sinking-fund as they should have been. This was dark
testimony for Cowperwood.
If any one imagines that all this was done without many vehement
objections and exceptions made and taken by Steger, and subsequently
when he was cross-examining Stener, by Shannon, he errs greatly. At
times the chamber was coruscating with these two gentlemen’s bitter
wrangles, and his honor was compelled to hammer his desk with his
gavel, and to threaten both with contempt of court, in order to bring
them to a sense of order. Indeed while Payderson was highly incensed,
the jury was amused and interested.
“You gentlemen will have to stop this, or I tell you now that you will
both be heavily fined. This is a court of law, not a bar-room. Mr.
Steger, I expect you to apologize to me and your colleague at once. Mr.
Shannon, I must ask that you use less aggressive methods. Your manner
is offensive to me. It is not becoming to a court of law. I will not
caution either of you again.”
Both lawyers apologized as lawyers do on such occasions, but it really
made but little difference. Their individual attitudes and moods
continued about as before.
“What did he say to you,” asked Shannon of Stener, after one of these
troublesome interruptions, “on that occasion, October 9th last, when he
came to you and demanded the loan of an additional three hundred
thousand dollars? Give his words as near as you can remember—exactly,
if possible.”
“Object!” interposed Steger, vigorously. “His exact words are not
recorded anywhere except in Mr. Stener’s memory, and his memory of them
cannot be admitted in this case. The witness has testified to the
general facts.”
Judge Payderson smiled grimly. “Objection overruled,” he returned.
“Exception!” shouted Steger.
“He said, as near as I can remember,” replied Stener, drumming on the
arms of the witness-chair in a nervous way, “that if I didn’t give him
three hundred thousand dollars he was going to fail, and I would be
poor and go to the penitentiary.”
“Object!” shouted Stager, leaping to his feet. “Your honor, I object to
the whole manner in which this examination is being conducted by the
prosecution. The evidence which the district attorney is here trying to
extract from the uncertain memory of the witness is in defiance of all
law and precedent, and has no definite bearing on the facts of the
case, and could not disprove or substantiate whether Mr. Cowperwood
thought or did not think that he was going to fail. Mr. Stener might
give one version of this conversation or any conversation that took
place at this time, and Mr. Cowperwood another. As a matter of fact,
their versions are different. I see no point in Mr. Shannon’s line of
inquiry, unless it is to prejudice the jury’s minds towards accepting
certain allegations which the prosecution is pleased to make and which
it cannot possibly substantiate. I think you ought to caution the
witness to testify only in regard to things that he recalls exactly,
not to what he thinks he remembers; and for my part I think that all
that has been testified to in the last five minutes might be well
stricken out.”
“Objection overruled,” replied Judge Payderson, rather indifferently;
and Steger who had been talking merely to overcome the weight of
Stener’s testimony in the minds of the jury, sat down.
Shannon once more approached Stener.
“Now, as near as you can remember, Mr. Stener, I wish you would tell
the jury what else it was that Mr. Cowperwood said on that occasion. He
certainly didn’t stop with the remark that you would be ruined and go
to the penitentiary. Wasn’t there other language that was employed on
that occasion?”
“He said, as far as I can remember,” replied Stener, “that there were a
lot of political schemers who were trying to frighten me, that if I
didn’t give him three hundred thousand dollars we would both be ruined,
and that I might as well be tried for stealing a sheep as a lamb.”
“Ha!” yelled Shannon. “He said that, did he?”
“Yes, sir; he did,” said Stener.
“How did he say it, exactly? What were his exact words?” Shannon
demanded, emphatically, pointing a forceful forefinger at Stener in
order to key him up to a clear memory of what had transpired.
“Well, as near as I can remember, he said just that,” replied Stener,
vaguely. “You might as well be tried for stealing a sheep as a lamb.”
“Exactly!” exclaimed Shannon, whirling around past the jury to look at
Cowperwood. “I thought so.”
“Pure pyrotechnics, your honor,” said Steger, rising to his feet on the
instant. “All intended to prejudice the minds of the jury. Acting. I
wish you would caution the counsel for the prosecution to confine
himself to the evidence in hand, and not act for the benefit of his
case.”
The spectators smiled; and Judge Payderson, noting it, frowned
severely. “Do you make that as an objection, Mr. Steger?” he asked.
“I certainly do, your honor,” insisted Steger, resourcefully.
“Objection overruled. Neither counsel for the prosecution nor for the
defense is limited to a peculiar routine of expression.”
Steger himself was ready to smile, but he did not dare to.
Cowperwood fearing the force of such testimony and regretting it, still
looked at Stener, pityingly. The feebleness of the man; the weakness of
the man; the pass to which his cowardice had brought them both!
When Shannon was through bringing out this unsatisfactory data, Steger
took Stener in hand; but he could not make as much out of him as he
hoped. In so far as this particular situation was concerned, Stener was
telling the exact truth; and it is hard to weaken the effect of the
exact truth by any subtlety of interpretation, though it can,
sometimes, be done. With painstaking care Steger went over all the
ground of Stener’s long relationship with Cowperwood, and tried to make
it appear that Cowperwood was invariably the disinterested agent—not
the ringleader in a subtle, really criminal adventure. It was hard to
do, but he made a fine impression. Still the jury listened with
skeptical minds. It might not be fair to punish Cowperwood for seizing
with avidity upon a splendid chance to get rich quick, they thought;
but it certainly was not worth while to throw a veil of innocence over
such palpable human cupidity. Finally, both lawyers were through with
Stener for the time being, anyhow, and then Albert Stires was called to
the stand.
He was the same thin, pleasant, alert, rather agreeable soul that he
had been in the heyday of his clerkly prosperity—a little paler now,
but not otherwise changed. His small property had been saved for him by
Cowperwood, who had advised Steger to inform the Municipal Reform
Association that Stires’ bondsmen were attempting to sequestrate it for
their own benefit, when actually it should go to the city if there were
any real claim against him—which there was not. That watchful
organization had issued one of its numerous reports covering this
point, and Albert had had the pleasure of seeing Strobik and the others
withdraw in haste. Naturally he was grateful to Cowperwood, even though
once he had been compelled to cry in vain in his presence. He was
anxious now to do anything he could to help the banker, but his
naturally truthful disposition prevented him from telling anything
except the plain facts, which were partly beneficial and partly not.
Stires testified that he recalled Cowperwood’s saying that he had
purchased the certificates, that he was entitled to the money, that
Stener was unduly frightened, and that no harm would come to him,
Albert. He identified certain memoranda in the city treasurer’s books,
which were produced, as being accurate, and others in Cowperwood’s
books, which were also produced, as being corroborative. His testimony
as to Stener’s astonishment on discovering that his chief clerk had
given Cowperwood a check was against the latter; but Cowperwood hoped
to overcome the effect of this by his own testimony later.
Up to now both Steger and Cowperwood felt that they were doing fairly
well, and that they need not be surprised if they won their case.