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 palpable human cupidity. Finally, both lawyers were through with Stener for the time being, anyhow, and then Albert Stires was called to the stand.

He was the same thin, pleasant, alert, rather agreeable soul that he had been in the heyday of his clerkly prosperity—a little paler now, but not otherwise changed. His small property had been saved for him by Cowperwood, who had advised Steger to inform the Municipal Reform Association that Stires' bondsmen were attempting to sequestrate it for their own benefit, when actually it should go to the city if there were any real claim against him—which there was not. That watchful organization had issued one of its numerous reports covering this point, and Albert had had the pleasure of seeing Strobik and the others withdraw in haste. Naturally he was grateful to Cowperwood, even though once he had been compelled to cry in vain in his presence. He was anxious now to do anything he could to help the banker, but his naturally truthful disposition prevented him from telling anything except the plain facts, which were partly beneficial and partly not.

Stires testified that he recalled Cowperwood's saying that he had purchased the certificates, that he was entitled to the money, that Stener was unduly frightened, and that no harm would come to him, Albert. He identified certain memoranda in the city treasurer's books, which were produced, as being accurate, and others in Cowperwood's books, which were also produced, as being corroborative. His testimony as to Stener's astonishment on discovering that his chief clerk had given Cowperwood a check was against the latter; but Cowperwood hoped to overcome the effect of this by his own testimony later.

Up to now both Steger and Cowperwood felt that they were doing fairly well, and that they need not be surprised if they won their case.



Chapter XLII

The trial moved on. One witness for the prosecution after another followed until the State had built up an arraignment that satisfied Shannon that he had established Cowperwood's guilt, whereupon he announced that he rested. Steger at once arose and began a long argument for the dismissal of the case on the ground that there was no evidence to show this, that and the other, but Judge Payderson would have none of it. He knew how important the matter was in the local political world.

"I don't think you had better go into all that now, Mr. Steger," he said, wearily, after allowing him to proceed a reasonable distance. "I am familiar with the custom of the city, and the indictment as here made does not concern the custom of the city. Your argument is with the jury, not with me. I couldn't enter into that now. You may renew your motion at the close of the defendants' case. Motion denied."

District-Attorney Shannon, who had been listening attentively, sat down. Steger, seeing there was no chance to soften the judge's mind by any subtlety of argument, returned to Cowperwood, who smiled at the result.

"We'll just have to take our chances with the jury," he announced.

"I was sure of it," replied Cowperwood.

Steger then approached the jury, and, having outlined the case briefly from his angle of observation, continued by telling them what he was sure the evidence would show from his point of view.

"As a matter of fact, gentlemen, there is no essential difference in the evidence which the prosecution can present and that which we, the defense, can present. We are not going to dispute that Mr. Cowperwood received a check from Mr. Stener for sixty thousand dollars, or that he failed to put the certificate of city loan which that sum of money represented, and to which he was entitled in payment as agent, in the sinking-fund, as the prosecution now claims he should have done; but we are going to claim and prove also beyond the shadow of a reasonable doubt that he had a right, as the agent of the city, doing business with the city through its treasury department for four years, to withhold, under an agreement which he had with the city treasurer, all payments of money and all deposits of certificates in the sinking-fund until the first day of each succeeding month—the first month following any given transaction. As a matter of fact we can and will bring many traders and bankers who have had dealings with the city treasury in the past in just this way to prove this. The prosecution is going to ask you to believe that Mr. Cowperwood knew at the time he received this check that he was going to fail; that he did not buy the certificates, as he claimed, with the view of placing them in the sinking-fund; and that, knowing he was going to fail, and that he could not subsequently deposit them, he deliberately went to Mr. Albert Stires, Mr. Stener's secretary, told him that he had purchased such certificates, and on the strength of a falsehood, implied if not actually spoken, secured the check, and walked away.

"Now, gentlemen, I am not going to enter into a long-winded discussion of these points at this time, since the testimony is going to show very rapidly what the facts are. We have a number of witnesses here, and we are all anxious to have them heard. What I am going to ask you to remember is that there is not one scintilla of testimony outside of that which may possibly be given by Mr. George W. Stener, which will show either that Mr. Cowperwood knew, at the time he called on the city treasurer, that he was going to fail, or that he had not purchased the certificates in question, or that he had not the right to withhold them from the sinking-fund as long as he pleased up to the first of the month, the time he invariably struck a balance with the city. Mr. Stener, the ex-city treasurer, may possibly testify one way. Mr. Cowperwood, on his own behalf, will testify another. It will then be for you gentlemen to decide between them, to decide which one you prefer to believe—Mr. George W. Stener, the ex-city treasurer, the former commercial associate of Mr. Cowperwood, who, after years and years of profit, solely because of conditions of financial stress, fire, and panic, preferred to turn on his one-time associate from whose labors he had reaped so much profit, or Mr. Frank A. Cowperwood, the well-known banker and financier, who did his best to weather the storm alone, who fulfilled to the letter every agreement he ever had with the city, who has even until this hour been busy trying to remedy the unfair financial difficulties forced upon him by fire and panic, and who only yesterday made an offer to the city that, if he were allowed to continue in uninterrupted control of his affairs he would gladly repay as quickly as possible every dollar of his indebtedness (which is really not all his), including the five hundred thousand dollars under discussion between him and Mr. Stener and the city, and so prove by his works, not talk, that there was no basis for this unfair suspicion of his motives. As you perhaps surmise, the city has not chosen to accept his offer, and I shall try and tell you why later, gentlemen. For the present we will proceed with the testimony, and for the defense all I ask is that you give very close attention to all that is testified to here to-day. Listen very carefully to Mr. W. C. Davison when he is put on the stand. Listen equally carefully to Mr. Cowperwood when we call him to testify. Follow the other testimony closely, and then you will be able to judge for yourselves. See if you can distinguish a just motive for this prosecution. I can't. I am very much obliged to you for listening to me, gentlemen, so attentively."

He then put on Arthur Rivers, who had acted for Cowperwood on 'change as special agent during the panic, to testify to the large quantities of city loan he had purchased to stay the market; and then after him, Cowperwood's brothers, Edward and Joseph, who testified to instructions received from Rivers as to buying and selling city loan on that occasion—principally buying.

The next witness was President W. C. Davison of the Girard National Bank. He was a large man physically, not so round of body as full and broad. His shoulders and chest were ample. He had a big blond head, with an ample breadth of forehead, which was high and sane-looking. He had a thick, squat nose, which, however, was forceful, and thin, firm, even lips. There was the faintest touch of cynical humor in his hard blue eyes at times; but mostly he was friendly, alert, placid-looking, without seeming in the least sentimental or even kindly. His business, as one could see plainly, was to insist on hard financial facts, and one could see also how he would naturally be drawn to Frank Algernon Cowperwood without being mentally dominated or upset by him. As he took the chair very quietly, and yet one might say significantly, it was obvious that he felt that this sort of legal-financial palaver was above the average man and beneath the dignity of a true financier—in other words, a bother. The drowsy Sparkheaver holding up a Bible beside him for him to swear by might as well have been a block of wood. His oath was a personal matter with him. It was good business to tell the truth at times. His testimony was very direct and very simple.

He had known Mr. Frank Algernon Cowperwood for nearly ten years. He had done business with or through him nearly all of that time. He knew nothing of his personal relations with Mr. Stener, and did not know Mr. Stener personally. As for the particular check of sixty thousand dollars—yes, he had seen it before. It had come into the bank on October 10th along with other collateral to offset an overdraft on the part of Cowperwood & Co. It was placed to the credit of Cowperwood & Co. on the books of the bank, and the bank secured the cash through the clearing-house. No money was drawn out of the bank by Cowperwood & Co. after that to create an overdraft. The bank's account with Cowperwood was squared.

Nevertheless, Mr. Cowperwood might have drawn heavily, and nothing would have been thought of it. Mr. Davison did not know that Mr. Cowperwood was going to fail—did not suppose that he could, so quickly. He had frequently overdrawn his account with the bank; as a matter of fact, it was the regular course of his business to overdraw it. It kept his assets actively in use, which was the height of good business. His overdrafts were protected by collateral, however, and it was his custom to send bundles of collateral or checks, or both, which were variously distributed to keep things straight. Mr. Cowperwood's account was the largest and most active in the bank, Mr. Davison kindly volunteered. When Mr. Cowperwood had failed there had been over ninety thousand dollars' worth of certificates of city loan in the bank's possession which Mr Cowperwood had sent there as collateral. Shannon, on cross-examination, tried to find out for the sake of the effect on the jury, whether Mr. Davison was not for some ulterior motive especially favorable to Cowperwood. It was not possible for him to do that. Steger followed, and did his best to render the favorable points made by Mr. Davison in Cowperwood's behalf perfectly clear to the jury by having him repeat them. Shannon objected, of course, but it was of no use. Steger managed to make his point.

He now decided to have Cowperwood take the stand, and at the mention of his name in this connection the whole courtroom bristled.

Cowperwood came forward briskly and quickly. He was so calm, so jaunty, so defiant of life, and yet so courteous to it. These lawyers, this jury, this straw-and-water judge, these machinations of fate, did not basically disturb or humble or weaken him. He saw through the mental equipment of the jury at once. He wanted to assist his counsel in disturbing and confusing Shannon, but his reason told him that only an indestructible fabric of fact or seeming would do it. He believed in the financial rightness of the thing he had done. He was entitled to do it. Life was war—particularly financial life; and strategy was its keynote, its duty, its necessity. Why should he bother about petty, picayune minds which could not understand this? He went over his history for Steger and the jury, and put the sanest, most comfortable light on it that he could. He had not gone to Mr. Stener in the first place, he said—he had been called. He had not urged Mr. Stener to anything. He had merely shown him and his friends financial possibilities which they were only too eager to seize upon. And they had seized upon them. (It was not possible for Shannon to discover at this period how subtly he had organized his street-car companies so that he could have "shaken out" Stener and his friends without their being able to voice a single protest, so he talked of these things as opportunities which he had made for Stener and others. Shannon was not a financier, neither was Steger. They had to believe in a way, though they doubted it, partly—particularly Shannon.) He was not responsible for the custom prevailing in the office of the city treasurer, he said. He was a banker and broker.

The jury looked at him, and believed all except this matter of the sixty-thousand-dollar check. When it came to that he explained it all plausibly enough. When he had gone to see Stener those several last days, he had not fancied that he was really going to fail. He had asked Stener for some money, it is true—not so very much, all things considered—one hundred and fifty thousand dollars; but, as Stener should have testified, he (Cowperwood) was not disturbed in his manner. Stener had merely been one resource of his. He was satisfied at that time that he had many others. He had not used the forceful language or made the urgent appeal which Stener said he had, although he had pointed out to Stener that it was a mistake to become panic-stricken, also to withhold further credit. It was true that Stener was his easiest, his quickest resource, but not his only one. He thought, as a matter of fact, that his credit would be greatly extended by his principal money friends if necessary, and that he would have ample time to patch up his affairs and keep things going until the storm should blow over. He had told Stener of his extended purchase of city loan to stay the market on the first day of the panic, and of the fact that sixty thousand dollars was due him. Stener had made no objection. It was just possible that he was too mentally disturbed at the time to pay close attention. After that, to his, Cowperwood's, surprise, unexpected pressure on great financial houses from unexpected directions had caused them to be not willingly but unfortunately severe with him. This pressure, coming collectively the next day, had compelled him to close his doors, though he had not really expected to up to the last moment. His call for the sixty-thousand-dollar check at the time had been purely fortuitous. He needed the money, of course, but it was due him, and his clerks were all very busy. He merely asked for and took it personally to save time. Stener knew if it had been refused him he would have brought suit. The matter of depositing city loan certificates in the sinking-fund, when purchased for the city, was something to which he never gave any personal attention whatsoever. His bookkeeper, Mr. Stapley, attended to all that. He did not know, as a matter of fact, that they had not been deposited. (This was a barefaced lie. He did know.) As for the check being turned over to the Girard National Bank, that was fortuitous. It might just as well have been turned over to some other bank if the conditions had been different.

Thus on and on he went, answering all of Steger's and Shannon's searching questions with the most engaging frankness, and you could have sworn from the solemnity with which he took it all—the serious business attention—that he was the soul of so-called commercial honor. And to say truly, he did believe in the justice as well as the necessity and the importance of all that he had done and now described. He wanted the jury to see it as he saw it—put itself in his place and sympathize with him.

He was through finally, and the effect on the jury of his testimony and his personality was peculiar. Philip Moultrie, juror No. 1, decided that Cowperwood was lying. He could not see how it was possible that he could not know the day before that he was going to fail. He must have known, he thought. Anyhow, the whole series of transactions between him and Stener seemed deserving of some punishment, and all during this testimony he was thinking how, when he got in the jury-room, he would vote guilty. He even thought of some of the arguments he would use to convince the others that Cowperwood was guilty. Juror No. 2, on the contrary, Simon Glassberg, a clothier, thought he understood how it all came about, and decided to vote for acquittal. He did not think Cowperwood was innocent, but he did not think he deserved to be punished. Juror No. 3, Fletcher Norton, an architect, thought Cowperwood was guilty, but at the same time that he was too talented to be sent to prison. Juror No. 4, Charles Hillegan, an Irishman, a contractor, and a somewhat religious-minded person, thought Cowperwood was guilty and ought to be punished. Juror No. 5, Philip Lukash, a coal merchant, thought he was guilty. Juror No. 6, Benjamin Fraser, a mining expert, thought he was probably guilty, but he could not be sure. Uncertain what he would do, juror No. 7, J. J. Bridges, a broker in Third Street, small, practical, narrow, thought Cowperwood was shrewd and guilty and deserved to be punished. He would vote for his punishment. Juror No. 8, Guy E. Tripp, general manager of a small steamboat company, was uncertain. Juror No. 9, Joseph Tisdale, a retired glue manufacturer, thought Cowperwood was probably guilty as charged, but to Tisdale it was no crime. Cowperwood was entitled to do as he had done under the circumstances. Tisdale would vote for his acquittal. Juror No. 10, Richard Marsh, a young florist, was for Cowperwood in a sentimental way. He had, as a matter of fact, no real convictions. Juror No. 11, Richard Webber, a grocer, small financially, but heavy physically, was for Cowperwood's conviction. He thought him guilty. Juror No. 12, Washington B. Thomas, a wholesale flour merchant, thought Cowperwood was guilty, but believed in a recommendation to mercy after pronouncing him so. Men ought to be reformed, was his slogan.

So they stood, and so Cowperwood left them, wondering whether any of his testimony had had a favorable effect.



Chapter XLIII

Since it is the privilege of the lawyer for the defense to address the jury first, Steger bowed politely to his colleague and came forward. Putting his hands on the jury-box rail, he began in a very quiet, modest, but impressive way:

"Gentlemen of the jury, my client, Mr. Frank Algernon Cowperwood, a well-known banker and financier of this city, doing business in Third Street, is charged by the State of Pennsylvania, represented by the district attorney of this district, with fraudulently transferring from the treasury of the city of Philadelphia to his own purse the sum of sixty thousand dollars, in the form of a check made out to his order, dated October 9, 1871, and by him received from one Albert Stires, the private secretary and head bookkeeper of the treasurer of this city, at the time in question. Now, gentlemen, what are the facts in this connection? You have heard the various witnesses and know the general outlines of the story. Take the testimony of George W. Stener, to begin with. He tells you that sometime back in the year 1866 he was greatly in need of some one, some banker or broker, who would tell him how to bring city loan, which was selling very low at the time, to par—who would not only tell him this, but proceed to demonstrate that his knowledge was accurate by doing it. Mr. Stener was an inexperienced man at the time in the matter of finance. Mr. Cowperwood was an active young man with an enviable record as a broker and a trader on 'change. He proceeded to demonstrate to Mr. Stener not only in theory, but in fact, how this thing of bringing city loan to par could be done. He made an arrangement at that time with Mr. Stener, the details of which you have heard from Mr. Stener himself, the result of which was that a large amount of city loan was turned over to Mr. Cowperwood by Mr. Stener for sale, and by adroit manipulation—methods of buying and selling which need not be gone into here, but which are perfectly sane and legitimate in the world in which Mr. Cowperwood operated, did bring that loan to par, and kept it there year after year as you have all heard here testified to.

"Now what is the bone of contention here, gentlemen, the significant fact which brings Mr. Stener into this court at this time charging his old-time agent and broker with larceny and embezzlement, and alleging that he has transferred to his own use without a shadow of return sixty thousand dollars of the money which belongs to the city treasury? What is it? Is it that Mr. Cowperwood secretly, with great stealth, as it were, at some time or other, unknown to Mr. Stener or to his assistants, entered the office of the treasurer and forcibly, and with criminal intent, carried away sixty thousand dollars' worth of the city's money? Not at all. The charge is, as you have heard the district attorney explain, that Mr. Cowperwood came in broad daylight at between four and five o'clock of the afternoon preceeding the day of his assignment; was closeted with Mr. Stener for a half or three-quarters of an hour; came out; explained to Mr. Albert Stires that he had recently bought sixty thousand dollars' worth of city loan for the city sinking-fund, for which he had not been paid; asked that the amount be credited on the city's books to him, and that he be given a check, which was his due, and walked out. Anything very remarkable about that, gentlemen? Anything very strange? Has it been testified here to-day that Mr. Cowperwood was not the agent of the city for the transaction of just such business as he said on that occasion that he had transacted? Did any one say here on the witness-stand that he had not bought city loan as he said he had?

"Why is it then that Mr. Stener charges Mr. Cowperwood with larcenously securing and feloniously disposing of a check for sixty thousand dollars for certificates which he had a right to buy, and which it has not been contested here that he did buy? The reason lies just here—listen—just here. At the time my client asked for the check and took it away with him and deposited it in his own bank to his own account, he failed, so the prosecution insists, to put the sixty thousand dollars' worth of certificates for which he had received the check, in the sinking-fund; and having failed to do that, and being compelled by the pressure of financial events the same day to suspend payment generally, he thereby, according to the prosecution and the anxious leaders of the Republican party in the city, became an embezzler, a thief, a this or that—anything you please so long as you find a substitute for George W. Stener and the indifferent leaders of the Republican party in the eyes of the people."

And here Mr. Steger proceeded boldly and defiantly to outline the entire political situation as it had manifested itself in connection with the Chicago fire, the subsequent panic and its political consequences, and to picture Cowperwood as the unjustly maligned agent, who before the fire was valuable and honorable enough to suit any of the political leaders of Philadelphia, but afterward, and when political defeat threatened, was picked upon as the most available scapegoat anywhere within reach.

And it took him a half hour to do that. And afterward but only after he had pointed to Stener as the true henchman and stalking horse, who had, in turn, been used by political forces above him to accomplish certain financial results, which they were not willing to have ascribed to themselves, he continued with:

"But now, in the light of all this, only see how ridiculous all this is! How silly! Frank A. Cowperwood had always been the agent of the city in these matters for years and years. He worked under certain rules which he and Mr. Stener had agreed upon in the first place, and which obviously came from others, who were above Mr. Stener, since they were hold-over customs and rules from administrations, which had been long before Mr. Stener ever appeared on the scene as city treasurer. One of them was that he could carry all transactions over until the first of the month following before he struck a balance. That is, he need not pay any money over for anything to the city treasurer, need not send him any checks or deposit any money or certificates in the sinking-fund until the first of the month because—now listen to this carefully, gentlemen; it is important—because his transactions in connection with city loan and everything else that he dealt in for the city treasurer were so numerous, so swift, so uncalculated beforehand, that he had to have a loose, easy system of this kind in order to do his work properly—to do business at all. Otherwise he could not very well have worked to the best advantage for Mr. Stener, or for any one else. It would have meant too much bookkeeping for him—too much for the city treasurer. Mr. Stener has testified to that in the early part of his story. Albert Stires has indicated that that was his understanding of it. Well, then what? Why, just this. Would any jury suppose, would any sane business man believe that if such were the case Mr. Cowperwood would be running personally with all these items of deposit, to the different banks or the sinking-fund or the city treasurer's office, or would be saying to his head bookkeeper, 'Here, Stapley, here is a check for sixty thousand dollars. See that the certificates of loan which this represents are put in the sinking-fund to-day'? And why not? What a ridiculous supposition any other supposition is! As a matter of course and as had always been the case, Mr. Cowperwood had a system. When the time came, this check and these certificates would be automatically taken care of. He handed his bookkeeper the check and forgot all about it. Would you imagine a banker with a vast business of this kind doing anything else?"

Mr. Steger paused for breath and inquiry, and then, having satisfied himself that his point had been sufficiently made, he continued:

"Of course the answer is that he knew he was going to fail. Well, Mr. Cowperwood's reply is that he didn't know anything of the sort. He has personally testified here that it was only at the last moment before it actually happened that he either thought or knew of such an occurrence. Why, then, this alleged refusal to let him have the check to which he was legally entitled? I think I know. I think I can give a reason if you will hear me out."

Steger shifted his position and came at the jury from another intellectual angle:

"It was simply because Mr. George W. Stener at that time, owing to a recent notable fire and a panic, imagined for some reason—perhaps because Mr. Cowperwood cautioned him not to become frightened over local developments generally—that Mr. Cowperwood was going to close his doors; and having considerable money on deposit with him at a low rate of interest, Mr. Stener decided that Mr. Cowperwood must not have any more money—not even the money that was actually due him for services rendered, and that had nothing whatsoever to do with the money loaned him by Mr. Stener at two and one-half per cent. Now isn't that a ridiculous situation? But it was because Mr. George W. Stener was filled with his own fears, based on a fire and a panic which had absolutely nothing to do with Mr. Cowperwood's solvency in the beginning that he decided not to let Frank A. Cowperwood have the money that was actually due him, because he, Stener, was criminally using the city's money to further his own private interests (through Mr. Cowperwood as a broker), and in danger of being exposed and possibly punished. Now where, I ask you, does the good sense of that decision come in? Is it apparent to you, gentlemen? Was Mr. Cowperwood still an agent for the city at the time he bought the loan certificates as here testified? He certainly was. If so, was he entitled to that money? Who is going to stand up here and deny it? Where is the question then, as to his right or his honesty in this matter? How does it come in here at all? I can tell you. It sprang solely from one source and from nowhere else, and that is the desire of the politicians of this city to find a scapegoat for the Republican party.

"Now you may think I am going rather far afield for an explanation of this very peculiar decision to prosecute Mr. Cowperwood, an agent of the city, for demanding and receiving what actually belonged to him. But I'm not. Consider the position of the Republican party at that time. Consider the fact that an exposure of the truth in regard to the details of a large defalcation in the city treasury would have a very unsatisfactory effect on the election about to be held. The Republican party had a new city treasurer to elect, a new district attorney. It had been in the habit of allowing its city treasurers the privilege of investing the funds in their possession at a low rate of interest for the benefit of themselves and their friends. Their salaries were small. They had to have some way of eking out a reasonable existence. Was Mr. George Stener responsible for this custom of loaning out the city money? Not at all. Was Mr. Cowperwood? Not at all. The custom had been in vogue long before either Mr. Cowperwood or Mr. Stener came on the scene. Why, then, this great hue and cry about it now? The entire uproar sprang solely from the fear of Mr. Stener at this juncture, the fear of the politicians at this juncture, of public exposure. No city treasurer had ever been exposed before. It was a new thing to face exposure, to face the risk of having the public's attention called to a rather nefarious practice of which Mr. Stener was taking advantage, that was all. A great fire and a panic were endangering the security and well-being of many a financial organization in the city—Mr. Cowperwood's among others. It meant many possible failures, and many possible failures meant one possible failure. If Frank A. Cowperwood failed, he would fail owing the city of Philadelphia five hundred thousand dollars, borrowed from the city treasurer at the very low rate of interest of two and one-half per cent. Anything very detrimental to Mr. Cowperwood in that? Had he gone to the city treasurer and asked to be loaned money at two and one-half per cent.? If he had, was there anything criminal in it from a business point of view? Isn't a man entitled to borrow money from any source he can at the lowest possible rate of interest? Did Mr. Stener have to loan it to Mr. Cowperwood if he did not want to? As a matter of fact didn't he testify here to-day that he personally had sent for Mr. Cowperwood in the first place? Why, then, in Heaven's name, this excited charge of larceny, larceny as bailee, embezzlement, embezzlement on a check, etc., etc.?

"Once more, gentlemen, listen. I'll tell you why. The men who stood behind Stener, and whose bidding he was doing, wanted to make a political scapegoat of some one—of Frank Algernon Cowperwood, if they couldn't get any one else. That's why. No other reason under God's blue sky, not one. Why, if Mr. Cowperwood needed more money just at that time to tide him over, it would have been good policy for them to have given it to him and hushed this matter up. It would have been illegal—though not any more illegal than anything else that has ever been done in this connection—but it would have been safer. Fear, gentlemen, fear, lack of courage, inability to meet a great crisis when a great crisis appears, was all that really prevented them from doing this. They were afraid to place confidence in a man who had never heretofore betrayed their trust and from whose loyalty and great financial ability they and the city had been reaping large profits. The reigning city treasurer of the time didn't have the courage to go on in the face of fire and panic and the rumors of possible failure, and stick by his illegal guns; and so he decided to draw in his horns as testified here to-day—to ask Mr. Cowperwood to return all or at least a big part of the five hundred thousand dollars he had loaned him, and which Cowperwood had been actually using for his, Stener's benefit, and to refuse him in addition the money that was actually due him for an authorized purchase of city loan. Was Cowperwood guilty as an agent in any of these transactions? Not in the least. Was there any suit pending to make him return the five hundred thousand dollars of city money involved in his present failure? Not at all. It was simply a case of wild, silly panic on the part of George W. Stener, and a strong desire on the part of the Republican party leaders, once they discovered what the situation was, to find some one outside of Stener, the party treasurer, upon whom they could blame the shortage in the treasury. You heard what Mr. Cowperwood testified to here in this case to-day—that he went to Mr. Stener to forfend against any possible action of this kind in the first place. And it was because of this very warning that Mr. Stener became wildly excited, lost his head, and wanted Mr. Cowperwood to return him all his money, all the five hundred thousand dollars he had loaned him at two and one-half per cent. Isn't that silly financial business at the best? Wasn't that a fine time to try to call a perfectly legal loan?

"But now to return to this particular check of sixty thousand dollars. When Mr. Cowperwood called that last afternoon before he failed, Mr. Stener testified that he told him that he couldn't have any more money, that it was impossible, and that then Mr. Cowperwood went out into his general office and without his knowledge or consent persuaded his chief clerk and secretary, Mr. Albert Stires, to give him a check for sixty thousand dollars, to which he was not entitled and on which he, Stener, would have stopped payment if he had known.

"What nonsense! Why didn't he know? The books were there, open to him. Mr. Stires told him the first thing the next morning. Mr. Cowperwood thought nothing of it, for he was entitled to it, and could collect it in any court of law having jurisdiction in such cases, failure or no failure. It is silly for Mr. Stener to say he would have stopped payment. Such a claim was probably an after-thought of the next morning after he had talked with his friends, the politicians, and was all a part, a trick, a trap, to provide the Republican party with a scapegoat at this time. Nothing more and nothing less; and you may be sure no one knew it better than the people who were most anxious to see Mr. Cowperwood convicted."

Steger paused and looked significantly at Shannon.

"Gentlemen of the jury [he finally concluded, quietly and earnestly], you are going to find, when you think it over in the jury-room this evening, that this charge of larceny and larceny as bailee, and embezzlement of a check for sixty thousand dollars, which are contained in this indictment, and which represent nothing more than the eager effort of the district attorney to word this one act in such a way that it will look like a crime, represents nothing more than the excited imagination of a lot of political refugees who are anxious to protect their own skirts at the expense of Mr. Cowperwood, and who care for nothing—honor, fair play, or anything else, so long as they are let off scot-free. They don't want the Republicans of Pennsylvania to think too ill of the Republican party management and control in this city. They want to protect George W. Stener as much as possible and to make a political scapegoat of my client. It can't be done, and it won't be done. As honorable, intelligent men you won't permit it to be done. And I think with that thought I can safely leave you."

Steger suddenly turned from the jury-box and walked to his seat beside Cowperwood, while Shannon arose, calm, forceful, vigorous, much younger.

As between man and man, Shannon was not particularly opposed to the case Steger had made out for Cowperwood, nor was he opposed to Cowperwood's having made money as he did. As a matter of fact, Shannon actually thought that if he had been in Cowperwood's position he would have done exactly the same thing. However, he was the newly elected district attorney. He had a record to make; and, besides, the political powers who were above him were satisfied that Cowperwood ought to be convicted for the looks of the thing. Therefore he laid his hands firmly on the rail at first, looked the jurors steadily in the eyes for a time, and, having framed a few thoughts in his mind began:

"Now, gentlemen of the jury, it seems to me that if we all pay strict attention to what has transpired here to-day, we will have no difficulty in reaching a conclusion; and it will be a very satisfactory one, if we all try to interpret the facts correctly. This defendant, Mr. Cowperwood, comes into this court to-day charged, as I have stated to you before, with larceny, with larceny as bailee, with embezzlement, and with embezzlement of a specific check—namely, one dated October 9, 1871, drawn to the order of Frank A. Cowperwood & Company for the sum of sixty thousand dollars by the secretary of the city treasurer for the city treasurer, and by him signed, as he had a perfect right to sign it, and delivered to the said Frank A. Cowperwood, who claims that he was not only properly solvent at the time, but had previously purchased certificates of city loan to the value of sixty thousand dollars, and had at that time or would shortly thereafter, as was his custom, deposit them to the credit of the city in the city sinking-fund, and thus close what would ordinarily be an ordinary transaction—namely, that of Frank A. Cowperwood & Company as bankers and brokers for the city buying city loan for the city, depositing it in the sinking-fund, and being promptly and properly reimbursed. Now, gentlemen, what are the actual facts in this case? Was the said Frank A. Cowperwood & Company—there is no company, as you well know, as you have heard testified here to-day, only Frank A. Cowperwood—was the said Frank A. Cowperwood a fit person to receive the check at this time in the manner he received it—that is, was he authorized agent of the city at the time, or was he not? Was he solvent? Did he actually himself think he was going to fail, and was this sixty-thousand-dollar check a last thin straw which he was grabbing at to save his financial life regardless of what it involved legally, morally, or otherwise; or had he actually purchased certificates of city loan to the amount he said he had in the way he said he had, at the time he said he had, and was he merely collecting his honest due? Did he intend to deposit these certificates of loans in the city sinking-fund, as he said he would—as it was understood naturally and normally that he would—or did he not? Were his relations with the city treasurer as broker and agent the same as they had always been on the day that he secured this particular check for sixty thousand dollars, or were they not? Had they been terminated by a conversation fifteen minutes before or two days before or two weeks before—it makes no difference when, so long as they had been properly terminated—or had they not? A business man has a right to abrogate an agreement at any time where there is no specific form of contract and no fixed period of operation entered into—as you all must know. You must not forget that in considering the evidence in this case. Did George W. Stener, knowing or suspecting that Frank A. Cowperwood was in a tight place financially, unable to fulfill any longer properly and honestly the duties supposedly devolving on him by this agreement, terminate it then and there on October 9, 1871, before this check for sixty thousand dollars was given, or did he not? Did Mr. Frank A. Cowperwood then and there, knowing that he was no longer an agent of the city treasurer and the city, and knowing also that he was insolvent (having, as Mr. Stener contends, admitted to him that he was so), and having no intention of placing the certificates which he subsequently declared he had purchased in the sinking-fund, go out into Mr. Stener's general office, meet his secretary, tell him he had purchased sixty thousand dollars' worth of city loan, ask for the check, get it, put it in his pocket, walk off, and never make any return of any kind in any manner, shape, or form to the city, and then, subsequently, twenty-four hours later, fail, owing this and five hundred thousand dollars more to the city treasury, or did he not? What are the facts in this case? What have the witnesses testified to? What has George W. Stener testified to, Albert Stires, President Davison, Mr. Cowperwood himself? What are the interesting, subtle facts in this case, anyhow? Gentlemen, you have a very curious problem to decide."

He paused and gazed at the jury, adjusting his sleeves as he did so, and looking as though he knew for certain that he was on the trail of a slippery, elusive criminal who was in a fair way to foist himself upon an honorable and decent community and an honorable and innocent jury as an honest man.

Then he continued:

"Now, gentlemen, what are the facts? You can see for yourselves exactly how this whole situation has come about. You are sensible men. I don't need to tell you. Here are two men, one elected treasurer of the city of Philadelphia, sworn to guard the interests of the city and to manipulate its finances to the best advantage, and the other called in at a time of uncertain financial cogitation to assist in unraveling a possibly difficult financial problem; and then you have a case of a quiet, private financial understanding being reached, and of subsequent illegal dealings in which one man who is shrewder, wiser, more versed in the subtle ways of Third Street leads the other along over seemingly charming paths of fortunate investment into an accidental but none the less criminal mire of failure and exposure and public calumny and what not. And then they get to the place where the more vulnerable individual of the two—the man in the most dangerous position, the city treasurer of Philadelphia, no less—can no longer reasonably or, let us say, courageously, follow the other fellow; and then you have such a spectacle as was described here this afternoon in the witness-chair by Mr. Stener—that is, you have a vicious, greedy, unmerciful financial wolf standing over a cowering, unsophisticated commercial lamb, and saying to him, his white, shiny teeth glittering all the while, 'If you don't advance me the money I ask for—the three hundred thousand dollars I now demand—you will be a convict, your children will be thrown in the street, you and your wife and your family will be in poverty again, and there will be no one to turn a hand for you.' That is what Mr. Stener says Mr. Cowperwood said to him. I, for my part, haven't a doubt in the world that he did. Mr. Steger, in his very guarded references to his client, describes him as a nice, kind, gentlemanly agent, a broker merely on whom was practically forced the use of five hundred thousand dollars at two and a half per cent. when money was bringing from ten to fifteen per cent. in Third Street on call loans, and even more. But I for one don't choose to believe it. The thing that strikes me as strange in all of this is that if he was so nice and kind and gentle and remote—a mere hired and therefore subservient agent—how is it that he could have gone to Mr. Stener's office two or three days before the matter of this sixty-thousand-dollar check came up and say to him, as Mr. Stener testifies under oath that he did say to him, 'If you don't give me three hundred thousand dollars' worth more of the city's money at once, to-day, I will fail, and you will be a convict. You will go to the penitentiary.'? That's what he said to him. 'I will fail and you will be a convict. They can't touch me, but they will arrest you. I am an agent merely.' Does that sound like a nice, mild, innocent, well-mannered agent, a hired broker, or doesn't it sound like a hard, defiant, contemptuous master—a man in control and ready to rule and win by fair means or foul?

"Gentlemen, I hold no brief for George W. Stener. In my judgment he is as guilty as his smug co-partner in crime—if not more so—this oily financier who came smiling and in sheep's clothing, pointing out subtle ways by which the city's money could be made profitable for both; but when I hear Mr. Cowperwood described as I have just heard him described, as a nice, mild, innocent agent, my gorge rises. Why, gentlemen, if you want to get a right point of view on this whole proposition you will have to go back about ten or twelve years and see Mr. George W. Stener as he was then, a rather poverty-stricken beginner in politics, and before this very subtle and capable broker and agent came along and pointed out ways and means by which the city's money could be made profitable; George W. Stener wasn't very much of a personage then, and neither was Frank A. Cowperwood when he found Stener newly elected to the office of city treasurer. Can't you see him arriving at that time nice and fresh and young and well dressed, as shrewd as a fox, and saying: 'Come to me. Let me handle city loan. Loan me the city's money at two per cent. or less.' Can't you hear him suggesting this? Can't you see him?

"George W. Stener was a poor man, comparatively a very poor man, when he first became city treasurer. All he had was a small real-estate and insurance business which brought him in, say, twenty-five hundred dollars a year. He had a wife and four children to support, and he had never had the slightest taste of what for him might be called luxury or comfort. Then comes Mr. Cowperwood—at his request, to be sure, but on an errand which held no theory of evil gains in Mr. Stener's mind at the time—and proposes his grand scheme of manipulating all the city loan to their mutual advantage. Do you yourselves think, gentlemen, from what you have seen of George W. Stener here on the witness-stand, that it was he who proposed this plan of ill-gotten wealth to that gentleman over there?"

He pointed to Cowperwood.

"Does he look to you like a man who would be able to tell that gentleman anything about finance or this wonderful manipulation that followed? I ask you, does he look clever enough to suggest all the subtleties by which these two subsequently made so much money? Why, the statement of this man Cowperwood made to his creditors at the time of his failure here a few weeks ago showed that he considered himself to be worth over one million two hundred and fifty thousand dollars, and he is only a little over thirty-four years old to-day. How much was he worth at the time he first entered business relations with the ex-city treasurer? Have you any idea? I can tell. I had the matter looked up almost a month ago on my accession to office. Just a little over two hundred thousand dollars, gentlemen—just a little over two hundred thousand dollars. Here is an abstract from the files of Dun & Company for that year. Now you can see how rapidly our Caesar has grown in wealth since then. You can see how profitable these few short years have been to him. Was George W. Stener worth any such sum up to the time he was removed from his office and indicted for embezzlement? Was he? I have here a schedule of his liabilities and assets made out at the time. You can see it for yourselves, gentlemen. Just two hundred and twenty thousand dollars measured the sum of all his property three weeks ago; and it is an accurate estimate, as I have reason to know. Why was it, do you suppose, that Mr. Cowperwood grew so fast in wealth and Mr. Stener so slowly? They were partners in crime. Mr. Stener was loaning Mr. Cowperwood vast sums of the city's money at two per cent. when call-rates for money in Third Street were sometimes as high as sixteen and seventeen per cent. Don't you suppose that Mr. Cowperwood sitting there knew how to use this very cheaply come-by money to the very best advantage? Does he look to you as though he didn't? You have seen him on the witness-stand. You have heard him testify. Very suave, very straightforward-seeming, very innocent, doing everything as a favor to Mr. Stener and his friends, of course, and yet making a million in a little over six years and allowing Mr. Stener to make one hundred and sixty thousand dollars or less, for Mr. Stener had some little money at the time this partnership was entered into—a few thousand dollars."

Shannon now came to the vital transaction of October 9th, when Cowperwood called on Stener and secured the check for sixty thousand dollars from Albert Stires. His scorn for this (as he appeared to think) subtle and criminal transaction was unbounded. It was plain larceny, stealing, and Cowperwood knew it when he asked Stires for the check.

"Think of it! [Shannon exclaimed, turning and looking squarely at Cowperwood, who faced him quite calmly, undisturbed and unashamed.] Think of it! Think of the colossal nerve of the man—the Machiavellian subtlety of his brain. He knew he was going to fail. He knew after two days of financial work—after two days of struggle to offset the providential disaster which upset his nefarious schemes—that he had exhausted every possible resource save one, the city treasury, and that unless he could compel aid there he was going to fail. He already owed the city treasury five hundred thousand dollars. He had already used the city treasurer as a cat's-paw so much, had involved him so deeply, that the latter, because of the staggering size of the debt, was becoming frightened. Did that deter Mr. Cowperwood? Not at all."

He shook his finger ominously in Cowperwood's face, and the latter turned irritably away. "He is showing off for the benefit of his future," he whispered to Steger. "I wish you could tell the jury that."

"I wish I could," replied Steger, smiling scornfully, "but my hour is over."

"Why [continued Mr. Shannon, turning once more to the jury], think of the colossal, wolfish nerve that would permit a man to say to Albert Stires that he had just purchased sixty thousand dollars' worth additional of city loan, and that he would then and there take the check for it! Had he actually purchased this city loan as he said he had? Who can tell? Could any human being wind through all the mazes of the complicated bookkeeping system which he ran, and actually tell? The best answer to that is that if he did purchase the certificates he intended that it should make no difference to the city, for he made no effort to put the certificates in the sinking-fund, where they belonged. His counsel says, and he says, that he didn't have to until the first of the month, although the law says that he must do it at once, and he knew well enough that legally he was bound to do it. His counsel says, and he says, that he didn't know he was going to fail. Hence there was no need of worrying about it. I wonder if any of you gentlemen really believed that? Had he ever asked for a check like that so quick before in his life? In all the history of these nefarious transactions was there another incident like that? You know there wasn't. He had never before, on any occasion, asked personally for a check for anything in this office, and yet on this occasion he did it. Why? Why should he ask for it this time? A few hours more, according to his own statement, wouldn't have made any difference one way or the other, would it? He could have sent a boy for it, as usual. That was the way it had always been done before. Why anything different now? I'll tell you why! [Shannon suddenly shouted, varying his voice tremendously.] I'll tell you why! He knew that he was a ruined man! He knew that his last semi-legitimate avenue of escape—the favor of George W. Stener—had been closed to him! He knew that honestly, by open agreement, he could not extract another single dollar from the treasury of the city of Philadelphia. He knew that if he left the office without this check and sent a boy for it, the aroused city treasurer would have time to inform his clerks, and that then no further money could be obtained. That's why! That's why, gentlemen, if you really want to know.

"Now, gentlemen of the jury, I am about done with my arraignment of this fine, honorable, virtuous citizen whom the counsel for the defense, Mr. Steger, tells you you cannot possibly convict without doing a great injustice. All I have to say is that you look to me like sane, intelligent men—just the sort of men that I meet everywhere in the ordinary walks of life, doing an honorable American business in an honorable American way. Now, gentlemen of the jury [he was very soft-spoken now], all I have to say is that if, after all you have heard and seen here to-day, you still think that Mr. Frank A. Cowperwood is an honest, honorable man—that he didn't steal, willfully and knowingly, sixty thousand dollars from the Philadelphia city treasury; that he had actually bought the certificates he said he had, and had intended to put them in the sinking-fund, as he said he did, then don't you dare to do anything except turn him loose, and that speedily, so that he can go on back to-day into Third Street, and start to straighten out his much-entangled financial affairs. It is the only thing for honest, conscientious men to do—to turn him instantly loose into the heart of this community, so that some of the rank injustice that my opponent, Mr. Steger, alleges has been done him will be a little made up to him. You owe him, if that is the way you feel, a prompt acknowledgment of his innocence. Don't worry about George W. Stener. His guilt is established by his own confession. He admits he is guilty. He will be sentenced without trial later on. But this man—he says he is an honest, honorable man. He says he didn't think he was going to fail. He says he used all that threatening, compelling, terrifying language, not because he was in danger of failing, but because he didn't want the bother of looking further for aid. What do you think? Do you really think that he had purchased sixty thousand dollars more of certificates for the sinking-fund, and that he was entitled to the money? If so, why didn't he put them in the sinking-fund? They're not there now, and the sixty thousand dollars is gone. Who got it? The Girard National Bank, where he was overdrawn to the extent of one hundred thousand dollars! Did it get it and forty thousand dollars more in other checks and certificates? Certainly. Why? Do you suppose the Girard National Bank might be in any way grateful for this last little favor before he closed his doors? Do you think that President Davison, whom you saw here testifying so kindly in this case feels at all friendly, and that that may possibly—I don't say that it does—explain his very kindly interpretation of Mr. Cowperwood's condition? It might be. You can think as well along that line as I can. Anyhow, gentlemen, President Davison says Mr. Cowperwood is an honorable, honest man, and so does his counsel, Mr. Steger. You have heard the testimony. Now you think it over. If you want to turn him loose—turn him loose. [He waved his hand wearily.] You're the judges. I wouldn't; but then I am merely a hard-working lawyer—one person, one opinion. You may think differently—that's your business. [He waved his hand suggestively, almost contemptuously.] However, I'm through, and I thank you for your courtesy. Gentlemen, the decision rests with you."

He turned away grandly, and the jury stirred—so did the idle spectators in the court. Judge Payderson sighed a sigh of relief. It was now quite dark, and the flaring gas forms in the court were all brightly lighted. Outside one could see that it was snowing. The judge stirred among his papers wearily, and turning to the jurors solemnly, began his customary explanation of the law, after which they filed out to the jury-room.

Cowperwood turned to his father who now came over across the fast-emptying court, and said:

"Well, we'll know now in a little while."

"Yes," replied Cowperwood, Sr., a little wearily. "I hope it comes out right. I saw Butler back there a little while ago."

"Did you?" queried Cowperwood, to whom this had a peculiar interest.

"Yes," replied his father. "He's just gone."

So, Cowperwood thought, Butler was curious enough as to his fate to want to come here and watch him tried. Shannon was his tool. Judge Payderson was his emissary, in a way. He, Cowperwood, might defeat him in the matter of his daughter, but it was not so easy to defeat him here unless the jury should happen to take a sympathetic attitude. They might convict him, and then Butler's Judge Payderson would have the privilege of sentencing him—giving him the maximum sentence. That would not be so nice—five years! He cooled a little as he thought of it, but there was no use worrying about what had not yet happened. Steger came forward and told him that his bail was now ended—had been the moment the jury left the room—and that he was at this moment actually in the care of the sheriff, of whom he knew—Sheriff Adlai Jaspers. Unless he were acquitted by the jury, Steger added, he would have to remain in the sheriff's care until an application for a certificate of reasonable doubt could be made and acted upon.

"It would take all of five days, Frank," Steger said, "but Jaspers isn't a bad sort. He'd be reasonable. Of course if we're lucky you won't have to visit him. You will have to go with this bailiff now, though. Then if things come out right we'll go home. Say, I'd like to win this case," he said. "I'd like to give them the laugh and see you do it. I consider you've been pretty badly treated, and I think I made that perfectly clear. I can reverse this verdict on a dozen grounds if they happen to decide against you."

He and Cowperwood and the latter's father now stalked off with the sheriff's subordinate—a small man by the name of "Eddie" Zanders, who had approached to take charge. They entered a small room called the pen at the back of the court, where all those on trial whose liberty had been forfeited by the jury's leaving the room had to wait pending its return. It was a dreary, high-ceiled, four-square place, with a window looking out into Chestnut Street, and a second door leading off into somewhere—one had no idea where. It was dingy, with a worn wooden floor, some heavy, plain, wooden benches lining the four sides, no pictures or ornaments of any kind. A single two-arm gas-pipe descended from the center of the ceiling. It was permeated by a peculiarly stale and pungent odor, obviously redolent of all the flotsam and jetsam of life—criminal and innocent—that had stood or sat in here from time to time, waiting patiently to learn what a deliberating fate held in store.

Cowperwood was, of course, disgusted; but he was too self-reliant and capable to show it. All his life he had been immaculate, almost fastidious in his care of himself. Here he was coming, perforce, in contact with a form of life which jarred upon him greatly. Steger, who was beside him, made some comforting, explanatory, apologetic remarks.

"Not as nice as it might be," he said, "but you won't mind waiting a little while. The jury won't be long, I fancy."

"That may not help me," he replied, walking to the window. Afterward he added: "What must be, must be."

His father winced. Suppose Frank was on the verge of a long prison term, which meant an atmosphere like this? Heavens! For a moment, he trembled, then for the first time in years he made a silent prayer.



Chapter XLIV

Meanwhile the great argument had been begun in the jury-room, and all the points that had been meditatively speculated upon in the jury-box were now being openly discussed.

It is amazingly interesting to see how a jury will waver and speculate in a case like this—how curious and uncertain is the process by which it makes up its so-called mind. So-called truth is a nebulous thing at best; facts are capable of such curious inversion and interpretation, honest and otherwise. The jury had a strongly complicated problem before it, and it went over it and over it.

Juries reach not so much definite conclusions as verdicts, in a curious fashion and for curious reasons. Very often a jury will have concluded little so far as its individual members are concerned and yet it will have reached a verdict. The matter of time, as all lawyers know, plays a part in this. Juries, speaking of the members collectively and frequently individually, object to the amount of time it takes to decide a case. They do not enjoy sitting and deliberating over a problem unless it is tremendously fascinating. The ramifications or the mystery of a syllogism can become a weariness and a bore. The jury-room itself may and frequently does become a dull agony.

On the other hand, no jury contemplates a disagreement with any degree of satisfaction. There is something so inherently constructive in the human mind that to leave a problem unsolved is plain misery. It haunts the average individual like any other important task left unfinished. Men in a jury-room, like those scientifically demonstrated atoms of a crystal which scientists and philosophers love to speculate upon, like finally to arrange themselves into an orderly and artistic whole, to present a compact, intellectual front, to be whatever they have set out to be, properly and rightly—a compact, sensible jury. One sees this same instinct magnificently displayed in every other phase of nature—in the drifting of sea-wood to the Sargasso Sea, in the geometric interrelation of air-bubbles on the surface of still water, in the marvelous unreasoned architecture of so many insects and atomic forms which make up the substance and the texture of this world. It would seem as though the physical substance of life—this apparition of form which the eye detects and calls real were shot through with some vast subtlety that loves order, that is order. The atoms of our so-called being, in spite of our so-called reason—the dreams of a mood—know where to go and what to do. They represent an order, a wisdom, a willing that is not of us. They build orderly in spite of us. So the subconscious spirit of a jury. At the same time, one does not forget the strange hypnotic effect of one personality on another, the varying effects of varying types on each other, until a solution—to use the word in its purely chemical sense—is reached. In a jury-room the thought or determination of one or two or three men, if it be definite enough, is likely to pervade the whole room and conquer the reason or the opposition of the majority. One man "standing out" for the definite thought that is in him is apt to become either the triumphant leader of a pliant mass or the brutally battered target of a flaming, concentrated intellectual fire. Men despise dull opposition that is without reason. In a jury-room, of all places, a man is expected to give a reason for the faith that is in him—if one is demanded. It will not do to say, "I cannot agree." Jurors have been known to fight. Bitter antagonisms lasting for years have been generated in these close quarters. Recalcitrant jurors have been hounded commercially in their local spheres for their unreasoned oppositions or conclusions.

After reaching the conclusion that Cowperwood unquestionably deserved some punishment, there was wrangling as to whether the verdict should be guilty on all four counts, as charged in the indictment. Since they did not understand how to differentiate between the various charges very well, they decided it should be on all four, and a recommendation to mercy added. Afterward this last was eliminated, however; either he was guilty or he was not. The judge could see as well as they could all the extenuating circumstances—perhaps better. Why tie his hands? As a rule no attention was paid to such recommendations, anyhow, and it only made the jury look wabbly.

So, finally, at ten minutes after twelve that night, they were ready to return a verdict; and Judge Payderson, who, because of his interest in the case and the fact that he lived not so far away, had decided to wait up this long, was recalled. Steger and Cowperwood were sent for. The court-room was fully lighted. The bailiff, the clerk, and the stenographer were there. The jury filed in, and Cowperwood, with Steger at his right, took his position at the gate which gave into the railed space where prisoners always stand to hear the verdict and listen to any commentary of the judge. He was accompanied by his father, who was very nervous.