by Theodore Dreiser 29 страница

spectacle, a painful commentary on the frailties of life, and men, a

trick, a snare, a pit and gin. In the hands of the strong, like himself

when he was at his best, the law was a sword and a shield, a trap to

place before the feet of the unwary; a pit to dig in the path of those

who might pursue. It was anything you might choose to make of it--a door

to illegal opportunity; a cloud of dust to be cast in the eyes of

those who might choose, and rightfully, to see; a veil to be dropped

arbitrarily between truth and its execution, justice and its judgment,

crime and punishment. Lawyers in the main were intellectual mercenaries

to be bought and sold in any cause. It amused him to hear the ethical

and emotional platitudes of lawyers, to see how readily they would

lie, steal, prevaricate, misrepresent in almost any cause and for any

purpose. Great lawyers were merely great unscrupulous subtleties,

like himself, sitting back in dark, close-woven lairs like spiders and

awaiting the approach of unwary human flies. Life was at best a dark,

inhuman, unkind, unsympathetic struggle built of cruelties and the law,

and its lawyers were the most despicable representatives of the whole

unsatisfactory mess. Still he used law as he would use any other trap or

weapon to rid him of a human ill; and as for lawyers, he picked them

up as he would any club or knife wherewith to defend himself. He had no

particular respect for any of them--not even Harper Steger, though he

liked him. They were tools to be used--knives, keys, clubs, anything

you will; but nothing more. When they were through they were paid

and dropped--put aside and forgotten. As for judges, they were merely

incompetent lawyers, at a rule, who were shelved by some fortunate turn

of chance, and who would not, in all likelihood, be as efficient as the

lawyers who pleaded before them if they were put in the same position.

He had no respect for judges--he knew too much about them. He knew how

often they were sycophants, political climbers, political hacks, tools,

time-servers, judicial door-mats lying before the financially and

politically great and powerful who used them as such. Judges were

fools, as were most other people in this dusty, shifty world. Pah! His

inscrutable eyes took them all in and gave no sign. His only safety lay,

he thought, in the magnificent subtley of his own brain, and nowhere

else. You could not convince Cowperwood of any great or inherent virtue

in this mortal scheme of things. He knew too much; he knew himself.

When the judge finally cleared away the various minor motions pending,

he ordered his clerk to call the case of the City of Philadelphia

versus Frank A. Cowperwood, which was done in a clear voice. Both Dennis

Shannon, the new district attorney, and Steger, were on their feet at

once. Steger and Cowperwood, together with Shannon and Strobik, who

had now come in and was standing as the representative of the State of

Pennsylvania--the complainant--had seated themselves at the long table

inside the railing which inclosed the space before the judge's desk.

Steger proposed to Judge Payderson, for effect's sake more than anything

else, that this indictment be quashed, but was overruled.

A jury to try the case was now quickly impaneled--twelve men out of

the usual list called to serve for the month--and was then ready to be

challenged by the opposing counsel. The business of impaneling a

jury was a rather simple thing so far as this court was concerned. It

consisted in the mandarin-like clerk taking the names of all the jurors

called to serve in this court for the month--some fifty in all--and

putting them, each written on a separate slip of paper, in a whirling

drum, spinning it around a few times, and then lifting out the first

slip which his hand encountered, thus glorifying chance and settling on

who should be juror No. 1. His hand reaching in twelve times drew out

the names of the twelve jurymen, who as their names were called, were

ordered to take their places in the jury-box.

Cowperwood observed this proceeding with a great deal of interest. What

could be more important than the men who were going to try him? The

process was too swift for accurate judgment, but he received a faint

impression of middle-class men. One man in particular, however, an

old man of sixty-five, with iron-gray hair and beard, shaggy eyebrows,

sallow complexion, and stooped shoulders, struck him as having that

kindness of temperament and breadth of experience which might under

certain circumstances be argumentatively swayed in his favor. Another,

a small, sharp-nosed, sharp-chinned commercial man of some kind, he

immediately disliked.

"I hope I don't have to have that man on my jury," he said to Steger,

quietly.

"You don't," replied Steger. "I'll challenge him. We have the right

to fifteen peremptory challenges on a case like this, and so has the

prosecution."

When the jury-box was finally full, the two lawyers waited for the clerk

to bring them the small board upon which slips of paper bearing the

names of the twelve jurors were fastened in rows in order of their

selection--jurors one, two, and three being in the first row; four,

five, and six in the second, and so on. It being the prerogative of the

attorney for the prosecution to examine and challenge the jurors first,

Shannon arose, and, taking the board, began to question them as to their

trades or professions, their knowledge of the case before the court, and

their possible prejudice for or against the prisoner.

It was the business of both Steger and Shannon to find men who knew a

little something of finance and could understand a peculiar situation

of this kind without any of them (looking at it from Steger's point of

view) having any prejudice against a man's trying to assist himself by

reasonable means to weather a financial storm or (looking at it from

Shannon's point of view) having any sympathy with such means, if they

bore about them the least suspicion of chicanery, jugglery, or dishonest

manipulation of any kind. As both Shannon and Steger in due course

observed for themselves in connection with this jury, it was composed of

that assorted social fry which the dragnets of the courts, cast into the

ocean of the city, bring to the surface for purposes of this sort.

It was made up in the main of managers, agents, tradesmen, editors,

engineers, architects, furriers, grocers, traveling salesmen, authors,

and every other kind of working citizen whose experience had fitted

him for service in proceedings of this character. Rarely would you have

found a man of great distinction; but very frequently a group of men who

were possessed of no small modicum of that interesting quality known as

hard common sense.

Throughout all this Cowperwood sat quietly examining the men. A young

florist, with a pale face, a wide speculative forehead, and anemic

hands, struck him as being sufficiently impressionable to his personal

charm to be worth while. He whispered as much to Steger. There was a

shrewd Jew, a furrier, who was challenged because he had read all of the

news of the panic and had lost two thousand dollars in street-railway

stocks. There was a stout wholesale grocer, with red cheeks, blue eyes,

and flaxen hair, who Cowperwood said he thought was stubborn. He was

eliminated. There was a thin, dapper manager of a small retail clothing

store, very anxious to be excused, who declared, falsely, that he

did not believe in swearing by the Bible. Judge Payderson, eyeing him

severely, let him go. There were some ten more in all--men who knew

of Cowperwood, men who admitted they were prejudiced, men who were

hidebound Republicans and resentful of this crime, men who knew

Stener--who were pleasantly eliminated.

By twelve o'clock, however, a jury reasonably satisfactory to both sides

had been chosen.

Chapter XLI

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 bad 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

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