The trial moved on. One witness for the prosecution after another
followed until the State had built up an arraignment that satisfied
Shannon that he had established Cowperwood’s guilt, whereupon he
announced that he rested. Steger at once arose and began a long
argument for the dismissal of the case on the ground that there was no
evidence to show this, that and the other, but Judge Payderson would
have none of it. He knew how important the matter was in the local
political world.
“I don’t think you had better go into all that now, Mr. Steger,” he
said, wearily, after allowing him to proceed a reasonable distance. “I
am familiar with the custom of the city, and the indictment as here
made does not concern the custom of the city. Your argument is with the
jury, not with me. I couldn’t enter into that now. You may renew your
motion at the close of the defendants’ case. Motion denied.”
District-Attorney Shannon, who had been listening attentively, sat
down. Steger, seeing there was no chance to soften the judge’s mind by
any subtlety of argument, returned to Cowperwood, who smiled at the
result.
“We’ll just have to take our chances with the jury,” he announced.
“I was sure of it,” replied Cowperwood.
Steger then approached the jury, and, having outlined the case briefly
from his angle of observation, continued by telling them what he was
sure the evidence would show from his point of view.
“As a matter of fact, gentlemen, there is no essential difference in
the evidence which the prosecution can present and that which we, the
defense, can present. We are not going to dispute that Mr. Cowperwood
received a check from Mr. Stener for sixty thousand dollars, or that he
failed to put the certificate of city loan which that sum of money
represented, and to which he was entitled in payment as agent, in the
sinking-fund, as the prosecution now claims he should have done; but we
are going to claim and prove also beyond the shadow of a reasonable
doubt that he had a right, as the agent of the city, doing business
with the city through its treasury department for four years, to
withhold, under an agreement which he had with the city treasurer, all
payments of money and all deposits of certificates in the sinking-fund
until the first day of each succeeding month—the first month following
any given transaction. As a matter of fact we can and will bring many
traders and bankers who have had dealings with the city treasury in the
past in just this way to prove this. The prosecution is going to ask
you to believe that Mr. Cowperwood knew at the time he received this
check that he was going to fail; that he did not buy the certificates,
as he claimed, with the view of placing them in the sinking-fund; and
that, knowing he was going to fail, and that he could not subsequently
deposit them, he deliberately went to Mr. Albert Stires, Mr. Stener’s
secretary, told him that he had purchased such certificates, and on the
strength of a falsehood, implied if not actually spoken, secured the
check, and walked away.
“Now, gentlemen, I am not going to enter into a long-winded discussion
of these points at this time, since the testimony is going to show very
rapidly what the facts are. We have a number of witnesses here, and we
are all anxious to have them heard. What I am going to ask you to
remember is that there is not one scintilla of testimony outside of
that which may possibly be given by Mr. George W. Stener, which will
show either that Mr. Cowperwood knew, at the time he called on the city
treasurer, that he was going to fail, or that he had not purchased the
certificates in question, or that he had not the right to withhold them
from the sinking-fund as long as he pleased up to the first of the
month, the time he invariably struck a balance with the city. Mr.
Stener, the ex-city treasurer, may possibly testify one way. Mr.
Cowperwood, on his own behalf, will testify another. It will then be
for you gentlemen to decide between them, to decide which one you
prefer to believe—Mr. George W. Stener, the ex-city treasurer, the
former commercial associate of Mr. Cowperwood, who, after years and
years of profit, solely because of conditions of financial stress,
fire, and panic, preferred to turn on his one-time associate from whose
labors he had reaped so much profit, or Mr. Frank A. Cowperwood, the
well-known banker and financier, who did his best to weather the storm
alone, who fulfilled to the letter every agreement he ever had with the
city, who has even until this hour been busy trying to remedy the
unfair financial difficulties forced upon him by fire and panic, and
who only yesterday made an offer to the city that, if he were allowed
to continue in uninterrupted control of his affairs he would gladly
repay as quickly as possible every dollar of his indebtedness (which is
really not all his), including the five hundred thousand dollars under
discussion between him and Mr. Stener and the city, and so prove by his
works, not talk, that there was no basis for this unfair suspicion of
his motives. As you perhaps surmise, the city has not chosen to accept
his offer, and I shall try and tell you why later, gentlemen. For the
present we will proceed with the testimony, and for the defense all I
ask is that you give very close attention to all that is testified to
here to-day. Listen very carefully to Mr. W. C. Davison when he is put
on the stand. Listen equally carefully to Mr. Cowperwood when we call
him to testify. Follow the other testimony closely, and then you will
be able to judge for yourselves. See if you can distinguish a just
motive for this prosecution. I can’t. I am very much obliged to you for
listening to me, gentlemen, so attentively.”
He then put on Arthur Rivers, who had acted for Cowperwood on ’change
as special agent during the panic, to testify to the large quantities
of city loan he had purchased to stay the market; and then after him,
Cowperwood’s brothers, Edward and Joseph, who testified to instructions
received from Rivers as to buying and selling city loan on that
occasion—principally buying.
The next witness was President W. C. Davison of the Girard National
Bank. He was a large man physically, not so round of body as full and
broad. His shoulders and chest were ample. He had a big blond head,
with an ample breadth of forehead, which was high and sane-looking. He
had a thick, squat nose, which, however, was forceful, and thin, firm,
even lips. There was the faintest touch of cynical humor in his hard
blue eyes at times; but mostly he was friendly, alert, placid-looking,
without seeming in the least sentimental or even kindly. His business,
as one could see plainly, was to insist on hard financial facts, and
one could see also how he would naturally be drawn to Frank Algernon
Cowperwood without being mentally dominated or upset by him. As he took
the chair very quietly, and yet one might say significantly, it was
obvious that he felt that this sort of legal-financial palaver was
above the average man and beneath the dignity of a true financier—in
other words, a bother. The drowsy Sparkheaver holding up a Bible beside
him for him to swear by might as well have been a block of wood. His
oath was a personal matter with him. It was good business to tell the
truth at times. His testimony was very direct and very simple.
He had known Mr. Frank Algernon Cowperwood for nearly ten years. He had
done business with or through him nearly all of that time. He knew
nothing of his personal relations with Mr. Stener, and did not know Mr.
Stener personally. As for the particular check of sixty thousand
dollars—yes, he had seen it before. It had come into the bank on
October 10th along with other collateral to offset an overdraft on the
part of Cowperwood & Co. It was placed to the credit of Cowperwood &
Co. on the books of the bank, and the bank secured the cash through the
clearing-house. No money was drawn out of the bank by Cowperwood & Co.
after that to create an overdraft. The bank’s account with Cowperwood
was squared.
Nevertheless, Mr. Cowperwood might have drawn heavily, and nothing
would have been thought of it. Mr. Davison did not know that Mr.
Cowperwood was going to fail—did not suppose that he could, so quickly.
He had frequently overdrawn his account with the bank; as a matter of
fact, it was the regular course of his business to overdraw it. It kept
his assets actively in use, which was the height of good business. His
overdrafts were protected by collateral, however, and it was his custom
to send bundles of collateral or checks, or both, which were variously
distributed to keep things straight. Mr. Cowperwood’s account was the
largest and most active in the bank, Mr. Davison kindly volunteered.
When Mr. Cowperwood had failed there had been over ninety thousand
dollars’ worth of certificates of city loan in the bank’s possession
which Mr Cowperwood had sent there as collateral. Shannon, on
cross-examination, tried to find out for the sake of the effect on the
jury, whether Mr. Davison was not for some ulterior motive especially
favorable to Cowperwood. It was not possible for him to do that. Steger
followed, and did his best to render the favorable points made by Mr.
Davison in Cowperwood’s behalf perfectly clear to the jury by having
him repeat them. Shannon objected, of course, but it was of no use.
Steger managed to make his point.
He now decided to have Cowperwood take the stand, and at the mention of
his name in this connection the whole courtroom bristled.
Cowperwood came forward briskly and quickly. He was so calm, so jaunty,
so defiant of life, and yet so courteous to it. These lawyers, this
jury, this straw-and-water judge, these machinations of fate, did not
basically disturb or humble or weaken him. He saw through the mental
equipment of the jury at once. He wanted to assist his counsel in
disturbing and confusing Shannon, but his reason told him that only an
indestructible fabric of fact or seeming would do it. He believed in
the financial rightness of the thing he had done. He was entitled to do
it. Life was war—particularly financial life; and strategy was its
keynote, its duty, its necessity. Why should he bother about petty,
picayune minds which could not understand this? He went over his
history for Steger and the jury, and put the sanest, most comfortable
light on it that he could. He had not gone to Mr. Stener in the first
place, he said—he had been called. He had not urged Mr. Stener to
anything. He had merely shown him and his friends financial
possibilities which they were only too eager to seize upon. And they
had seized upon them. (It was not possible for Shannon to discover at
this period how subtly he had organized his street-car companies so
that he could have “shaken out” Stener and his friends without their
being able to voice a single protest, so he talked of these things as
opportunities which he had made for Stener and others. Shannon was not
a financier, neither was Steger. They had to believe in a way, though
they doubted it, partly—particularly Shannon.) He was not responsible
for the custom prevailing in the office of the city treasurer, he said.
He was a banker and broker.
The jury looked at him, and believed all except this matter of the
sixty-thousand-dollar check. When it came to that he explained it all
plausibly enough. When he had gone to see Stener those several last
days, he had not fancied that he was really going to fail. He had asked
Stener for some money, it is true—not so very much, all things
considered—one hundred and fifty thousand dollars; but, as Stener
should have testified, he (Cowperwood) was not disturbed in his manner.
Stener had merely been one resource of his. He was satisfied at that
time that he had many others. He had not used the forceful language or
made the urgent appeal which Stener said he had, although he had
pointed out to Stener that it was a mistake to become panic-stricken,
also to withhold further credit. It was true that Stener was his
easiest, his quickest resource, but not his only one. He thought, as a
matter of fact, that his credit would be greatly extended by his
principal money friends if necessary, and that he would have ample time
to patch up his affairs and keep things going until the storm should
blow over. He had told Stener of his extended purchase of city loan to
stay the market on the first day of the panic, and of the fact that
sixty thousand dollars was due him. Stener had made no objection. It
was just possible that he was too mentally disturbed at the time to pay
close attention. After that, to his, Cowperwood’s, surprise, unexpected
pressure on great financial houses from unexpected directions had
caused them to be not willingly but unfortunately severe with him. This
pressure, coming collectively the next day, had compelled him to close
his doors, though he had not really expected to up to the last moment.
His call for the sixty-thousand-dollar check at the time had been
purely fortuitous. He needed the money, of course, but it was due him,
and his clerks were all very busy. He merely asked for and took it
personally to save time. Stener knew if it had been refused him he
would have brought suit. The matter of depositing city loan
certificates in the sinking-fund, when purchased for the city, was
something to which he never gave any personal attention whatsoever. His
bookkeeper, Mr. Stapley, attended to all that. He did not know, as a
matter of fact, that they had not been deposited. (This was a barefaced
lie. He did know.) As for the check being turned over to the Girard
National Bank, that was fortuitous. It might just as well have been
turned over to some other bank if the conditions had been different.
Thus on and on he went, answering all of Steger’s and Shannon’s
searching questions with the most engaging frankness, and you could
have sworn from the solemnity with which he took it all—the serious
business attention—that he was the soul of so-called commercial honor.
And to say truly, he did believe in the justice as well as the
necessity and the importance of all that he had done and now described.
He wanted the jury to see it as he saw it—put itself in his place and
sympathize with him.
He was through finally, and the effect on the jury of his testimony and
his personality was peculiar. Philip Moultrie, juror No. 1, decided
that Cowperwood was lying. He could not see how it was possible that he
could not know the day before that he was going to fail. He must have
known, he thought. Anyhow, the whole series of transactions between him
and Stener seemed deserving of some punishment, and all during this
testimony he was thinking how, when he got in the jury-room, he would
vote guilty. He even thought of some of the arguments he would use to
convince the others that Cowperwood was guilty. Juror No. 2, on the
contrary, Simon Glassberg, a clothier, thought he understood how it all
came about, and decided to vote for acquittal. He did not think
Cowperwood was innocent, but he did not think he deserved to be
punished. Juror No. 3, Fletcher Norton, an architect, thought
Cowperwood was guilty, but at the same time that he was too talented to
be sent to prison. Juror No. 4, Charles Hillegan, an Irishman, a
contractor, and a somewhat religious-minded person, thought Cowperwood
was guilty and ought to be punished. Juror No. 5, Philip Lukash, a coal
merchant, thought he was guilty. Juror No. 6, Benjamin Fraser, a mining
expert, thought he was probably guilty, but he could not be sure.
Uncertain what he would do, juror No. 7, J. J. Bridges, a broker in
Third Street, small, practical, narrow, thought Cowperwood was shrewd
and guilty and deserved to be punished. He would vote for his
punishment. Juror No. 8, Guy E. Tripp, general manager of a small
steamboat company, was uncertain. Juror No. 9, Joseph Tisdale, a
retired glue manufacturer, thought Cowperwood was probably guilty as
charged, but to Tisdale it was no crime. Cowperwood was entitled to do
as he had done under the circumstances. Tisdale would vote for his
acquittal. Juror No. 10, Richard Marsh, a young florist, was for
Cowperwood in a sentimental way. He had, as a matter of fact, no real
convictions. Juror No. 11, Richard Webber, a grocer, small financially,
but heavy physically, was for Cowperwood’s conviction. He thought him
guilty. Juror No. 12, Washington B. Thomas, a wholesale flour merchant,
thought Cowperwood was guilty, but believed in a recommendation to
mercy after pronouncing him so. Men ought to be reformed, was his
slogan.
So they stood, and so Cowperwood left them, wondering whether any of
his testimony had had a favorable effect.