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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
appear that Cowperwood was invariably the disinterested agent--not the
ringleader in a subtle, really criminal adventure. It was hard to do,
but he made a fine impression. Still the jury listened with skeptical
minds. It might not be fair to punish Cowperwood for seizing with
avidity upon a splendid chance to get rich quick, they thought; but it
certainly was not worth while to throw a veil of innocence over such
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