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 p
eople, 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 had 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.
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