Ized that it would not be wise politically to stand out against what was wanted. Still, when he and Marvin learned that

“The defendant, Frank A. Cowperwood, asks that the find-Judges Smithson, Rainey, and Beckwith were inclined to ing of the jury in the lower court (the State of Pennsylvania convict Cowperwood without much argument, they decided vs. Frank A. Cowperwood) be reversed and a new trial to hand down a dissenting opinion. The point involved was granted. This court cannot see that any substantial injustice a very knotty one. Cowperwood might carry it to the Su-has been done the defendant. [Here followed a rather lengthy preme Court of the United States on some fundamental prin-resume of the history of the case, in which it was pointed out ciple of liberty of action. Anyhow, other judges in other courts that the custom and precedent of the treasurer’s office, to say in Pennsylvania and elsewhere would be inclined to examine nothing of Cowperwood’s easy method of doing business the decision in this case, it was so important. The minority with the city treasury, could have nothing to do with his decided that it would not do them any harm to hand down responsibility for failure to observe both the spirit and the a dissenting opinion. The politicians would not mind as long letter of the law.] The obtaining of goods under color of le-as Cowperwood was convicted—would like it better, in fact.

gal process [went on Judge Smithson, speaking for the ma-It looked fairer. Besides, Marvin and Rafalsky did not care jority] may amount to larceny. In the present case it was the to be included, if they could help it, with Smithson, Rainey, province of the jury to ascertain the felonious intent. They and Beckwith in a sweeping condemnation of Cowperwood.

have settled that against the defendant as a question of fact, So all five judges fancied they were considering the whole and the court cannot say that there was not sufficient evi-matter rather fairly and impartially, as men will under such dence to sustain the verdict. For what purpose did the de-circumstances. Smithson, speaking for himself and Judges fendant get the check? He was upon the eve of failure. He Rainey and Beckwith on the eleventh of February, 1872, had already hypothecated for his own debts the loan of the 381

The Financier

city placed in his hands for sale—he had unlawfully obtained market or by the public in that light, and that Mr.

five hundred thousand dollars in cash as loans; and it is rea-Cowperwood as agent was to have an absolutely free hand in sonable to suppose that he could obtain nothing more from the disposal of his assets and liabilities so long as the ulti-the city treasury by any ordinary means. Then it is that he mate result was satisfactory. There was no particular time goes there, and, by means of a falsehood implied if not ac-when the loan was to be bought, nor was there any particu-tual, obtains sixty thousand dollars more. The jury has found lar amount mentioned at any time to be purchased. Unless the intent with which this was done.” the defendant intended at the time he received the check fraudulently to appropriate it he could not be convicted even It was in these words that Cowperwood’s appeal for a new on the first count. The verdict of the jury does not establish trial was denied by the majority.

this fact; the evidence does not show conclusively that it could For himself and Judge Rafalsky, Judge Marvin, dissenting, be established; and the same jury, upon three other counts, wrote:

found the defendant guilty without the semblance of shadow of evidence. How can we say that their conclusions upon the

“It is plain from the evidence in the case that Mr.

first count are unerring when they so palpably erred on the Cowperwood did not receive the check without authority as other counts? It is the opinion of the minority that the veragent to do so, and it has not been clearly demonstrated that dict of the jury in charging larceny on the first count is not within his capacity as agent he did not perform or intend to valid, and that that verdict should be set aside and a new perform the full measure of the obligation which the receipt trial granted.”

of this check implied. It was shown in the trial that as a matter of policy it was understood that purchases for the Judge Rafalsky, a meditative and yet practical man of Jew-sinking-fund should not be known or understood in the ish extraction but peculiarly American appearance, felt called 382

Dreiser

upon to write a third opinion which should especially reflect trary notwithstanding, be looked upon and judged in the his own cogitation and be a criticism on the majority as well light of custom. Was it his custom so to do? In my judgment as a slight variation from and addition to the points on which the doctrine now announced by the majority of the court he agreed with Judge Marvin. It was a knotty question, this, extends the crime of constructive larceny to such limits that of Cowperwood’s guilt, and, aside from the political neces-any business man who engages in extensive and perfectly sity of convicting him, nowhere was it more clearly shown legitimate stock transactions may, before he knows it, by a than in these varying opinions of the superior court. Judge sudden panic in the market or a fire, as in this instance, be-Rafalsky held, for instance, that if a crime had been commit-come a felon. When a principle is asserted which establishes ted at all, it was not that known as larceny, and he went on such a precedent, and may lead to such results, it is, to say to add:

the least, startling.”

“It is impossible, from the evidence, to come to the con-While he was notably comforted by the dissenting opin-clusion either that Cowperwood did not intend shortly to ions of the judges in minority, and while he had been school-deliver the loan or that Albert Stires, the chief clerk, or the ing himself to expect the worst in this connection and had city treasurer did not intend to part not only with the pos-been arranging his affairs as well as he could in anticipation session, but also and absolutely with the property in the check of it, Cowperwood was still bitterly disappointed. It would and the money represented by it. It was testified by Mr. Stires be untrue to say that, strong and self-reliant as he normally that Mr. Cowperwood said he had bought certificates of city was, he did not suffer. He was not without sensibilities of loan to this amount, and it has not been clearly demonstrated the highest order, only they were governed and controlled in that he had not. His non-placement of the same in the sink-him by that cold iron thing, his reason, which never forsook ing-fund must in all fairness, the letter of the law to the con-him. There was no further appeal possible save to the United 383

The Financier

States Supreme Court, as Steger pointed out, and there only get a damned dollar out of me now—not a dollar! I did intend on the constitutionality of some phase of the decision and to pay that five hundred thousand dollars some time if they his rights as a citizen, of which the Supreme Court of the had let me go. Now they can whistle!” United States must take cognizance. This was a tedious and He set his teeth and his gray eyes fairly snapped their de-expensive thing to do. It was not exactly obvious at the mo-termination.

ment on what point he could make an appeal. It would in-

“Well, I’ve done all I can, Frank,” pleaded Steger, sympa-volve a long delay—perhaps a year and a half, perhaps longer, thetically. “You’ll do me the justice to say that I put up the at the end of which period he might have to serve his prison best fight I knew how. I may not know how—you’ll have to term anyhow, and pending which he would certainly have answer for that—but within my limits I’ve done the best I to undergo incarceration for a time.

can. I can do a few things more to carry this thing on, if you Cowperwood mused speculatively for a few moments after want me to, but I’m going to leave it to you now. Whatever hearing Steger’s presentation of the case. Then he said: “Well, you say goes.”