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.”
