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.