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THE FINANCIER
It reached, for one thing, the ears of the fi ve judges of the State
Supreme Court and of the Governor of the State.
During the four weeks Cowperwood had been free on a certifi cate of reasonable doubt both Harper Steger and Dennis Shannon appeared before the judges of the State Supreme Court, and
argued pro and con as to the reasonableness of granting a new trial.
Through his lawyer, Cowperwood made a learned appeal to the Supreme Court judges, showing how he had been unfairly indicted in the fi rst place, how there was no real substantial evidence on
which to base a charge of larceny or anything else. It took Steger two
hours and ten minutes to make his argument, and District-Attorney
Shannon longer to make his reply, during which the fi ve judges on
the bench, men of considerable legal experience but no great fi nancial understanding, listened with rapt attention. Three of them,
Judges Smithson, Rainey, and Beckwith, men most amenable to
the political feeling of the time and the wishes of the bosses, were
little interested in this story of Cowperwood’s transaction, particularly since his relations with Butler’s daughter and Butler’s consequent opposition to him had come to them. They fancied that in
a way they were considering the whole matter fairly and impartially; but the manner in which Cowperwood had treated Butler was
never out of their minds. Two of them, Judges Marvin and Rafalsky, who were men of larger sympathies and understanding, but of
no greater political freedom, did feel that Cowperwood had been
badly used thus far, but they did not see what they could do about
it. He had put himself in a most unsatisfactory position, politically
and socially. They understood and took into consideration his great
fi nancial and social losses which Steger described accurately; and
one of them, Judge Rafalsky, because of a similar event in his own
life in so far as a girl was concerned, was inclined to argue strongly
against the conviction of Cowperwood; but, owing to his political
connections and obligations, he realized that it would not be wise
politically to stand out against what was wanted. Still, when he and
Marvin learned that Judges Smithson, Rainey, and Beckwith were
441
THEODORE DREISER
inclined to convict Cowperwood without much argument, they
decided to hand down a dissenting opinion. The point involved
was a very knotty one. Cowperwood might carry it to the Supreme
Court of the United States on some fundamental principle of liberty of action. Anyhow, other judges in other courts in Pennsylvania
and elsewhere would be inclined to examine the decision in this
case, it was so important. The minority decided that it would not do
them any harm to hand down a dissenting opinion. The politicians
would not mind as long as Cowperwood was convicted – would
like it better, in fact. It looked fairer. Besides, Marvin and Rafalsky
did not care to be included, if they could help it, with Smithson,
Rainey, and Beckwith in a sweeping condemnation of Cowperwood.
So all fi ve judges fancied they were considering the whole matter
rather fairly and impartially, as men will under such circumstances.
Smithson, speaking for himself and Judges Rainey and Beckwith on
the eleventh of February, 1872, said:
«The defendant, Frank A. Cowperwood, asks that the fi nding of
the jury in the lower court (the State of Pennsylvania vs. Frank A.
Cowperwood) be reversed and a new trial granted. This court cannot see that any substantial injustice has been done the defendant.
[Here followed a rather lengthy resume of the history of the case, in
which it was pointed out that the custom and precedent of the treasurer’s offi ce, to say nothing of Cowperwood’s easy method of doing business with the city treasury, could have nothing to do with
his responsibility for failure to observe both the spirit and the letter of the law.] The obtaining of goods under color of legal process
[went on Judge Smithson, speaking for the majority] may amount to
larceny. In the present case it was the province of the jury to ascertain the felonious intent. They have settled that against the defendant as a question of fact, and the court cannot say that there was
not suffi cient evidence to sustain the verdict. For what purpose did
the defendant get the check? He was upon the eve of failure. He had
already hypothecated for his own debts the loan of the city placed in
his hands for sale – he had unlawfully obtained fi ve hundred thou-
442
THE FINANCIER
sand dollars in cash as loans; and it is reasonable to suppose that he
could obtain nothing more from the city treasury by any ordinary
means. Then it is that he goes there, and, by means of a falsehood
implied if not actual, obtains sixty thousand dollars more. The jury
has found the intent with which this was done».
It was in these words that Cowperwood’s appeal for a new trial
was denied by the majority.
For himself and Judge Rafalsky, Judge Marvin, dissenting, wrote:
«It is plain from the evidence in the case that Mr. Cowperwood did not receive the check without authority as agent to do
so, and it has not been clearly demonstrated that within his capacity as agent he did not perform or intend to perform the full
measure of the obligation which the receipt of this check implied.
It was shown in the trial that as a matter of policy it was understood that purchases for the sinking-fund should not be known or
understood in the market or by the public in that light, and that
Mr. Cowperwood as agent was to have an absolutely free hand in
the disposal of his assets and liabilities so long as the ultimate result
was satisfactory. There was no particular time when the loan was to
be bought, nor was there any particular amount mentioned at any
time to be purchased. Unless the defendant intended at the time he
received the check fraudulently to appropriate it he could not be
convicted even on the fi rst count. The verdict of the jury does not
establish this fact; the evidence does not show conclusively that it
could be established; and the same jury, upon three other counts,
found the defendant guilty without the semblance of shadow of evidence. How can we say that their conclusions upon the fi rst count
are unerring when they so palpably erred on the other counts? It is
the opinion of the minority that the verdict of the jury in charging
larceny on the fi rst count is not valid, and that that verdict should
be set aside and a new trial granted».
Judge Rafalsky, a meditative and yet practical man of Jewish
extraction but peculiarly American appearance, felt called upon to
write a third opinion which should especially refl ect his own cogita-
443
THEODORE DREISER
tion and be a criticism on the majority as well as a slight variation
from and addition to the points on which he agreed with Judge Marvin. It was a knotty question, this, of Cowperwood’s guilt, and, aside
from the political necessity of convicting him, nowhere was it more
clearly shown than in these varying opinions of the superior court.
Judge Rafalsky held, for instance, that if a crime had been committed at all, it was not that known as larceny, and he went on to add:
«It is impossible, from the evidence, to come to the conclusion
either that Cowperwood did not intend shortly to deliver the loan
or that Albert Stires, the chief clerk, or the city treasurer did not
intend to part not only with the possession, but also and absolutely
with the property in the check and the money represented by it.
It was testifi ed by Mr. Stires that Mr. Cowperwood said he had bought
certifi cates of city loan to this amount, and it has not been clearly
demonstrated that he had not. His non-placement of the same in
the sinking-fund must in all fairness, the letter of the law to the contrary notwithstanding, be looked upon and judged in the light of
custom. Was it his custom so to do? In my judgment the doctrine
now announced by the majority of the court extends the crime of
constructive larceny to such limits that any business man who engages in extensive and perfectly legitimate stock transactions may,
before he knows it, by a sudden panic in the market or a fi re, as in
this instance, become a felon. When a principle is asserted which
establishes such a precedent, and may lead to such results, it is, to
say the least, startling».
While he was notably comforted by the dissenting opinions of
the judges in minority, and while he had been schooling himself to
expect the worst in this connection and had been arranging his affairs as well as he could in anticipation of it, Cowperwood was still
bitterly disappointed. It would be untrue to say that, strong and
self-reliant as he normally was, he did not suffer. He was not without sensibilities of the highest order, only they were governed and
controlled in him by that cold iron thing, his reason, which never
forsook him. There was no further appeal possible save to the Unit-
444
THE FINANCIER
ed States Supreme Court, as Steger pointed out, and there only on
the constitutionality of some phase of the decision and his rights
as a citizen, of which the Supreme Court of the United States must
take cognizance. This was a tedious and expensive thing to do. It was
not exactly obvious at the moment on what point he could make
an appeal. It would involve a long delay – perhaps a year and a half,
perhaps longer, at the end of which period he might have to serve
his prison term anyhow, and pending which he would certainly
have to undergo incarceration for a time.
Cowperwood mused speculatively for a few moments after hearing Steger’s presentation of the case. Then he said: «Well, it looks as
if I have to go to jail or leave the country, and I’ve decided on jail.
I can fi ght this out right here in Philadelphia in the long run and
win. I can get that decision reversed in the Supreme Court, or I can
get the Governor to pardon me after a time, I think. I’m not going to
run away, and everybody knows I’m not. These people who think
they have me down haven’t got one corner of me whipped. I’ll get
out of this thing after a while, and when I do I’ll show some of these
petty little politicians what it means to put up a real fi ght. They’ll
never get a damned dollar out of me now – not a dollar! I did intend to pay that fi ve hundred thousand dollars some time if they
had let me go. Now they can whistle!»
He set his teeth and his gray eyes fairly snapped their
determination.
«Well, I’ve done all I can, Frank», pleaded Steger, sympathetically. «You’ll do me the justice to say that I put up the best fi ght
I knew how. I may not know how – you’ll have to answer for that –
but within my limits I’ve done the best I can. I can do a few things
more to carry this thing on, if you want me to, but I’m going to leave
it to you now. Whatever you say goes».
«Don’t talk nonsense at this stage, Harper», replied Cowperwood almost testily. «I know whether I’m satisfi ed or not, and I’d
soon tell you if I wasn’t. I think you might as well go on and see if
you can fi nd some defi nite grounds for carrying it to the Supreme
445
THEODORE DREISER
Court, but meanwhile I’ll begin my sentence. I suppose Payderson
will be naming a day to have me brought before him now shortly».
«It depends on how you’d like to have it, Frank. I could get
a stay of sentence for a week maybe, or ten days, if it will do you any
good. Shannon won’t make any objection to that, I’m sure. There’s
only one hitch. Jaspers will be around here tomorrow looking for
you. It’s his duty to take you into custody again, once he’s notifi ed
that your appeal has been denied. He’ll be wanting to lock you up
unless you pay him, but we can fi x that. If you do want to wait, and
want any time off, I suppose he’ll arrange to let you out with a deputy; but I’m afraid you’ll have to stay there nights. They’re pretty strict
about that since that Albertson case of a few years ago».
Steger referred to the case of a noted bank cashier who, being let
out of the county jail at night in the alleged custody of a deputy, was
permitted to escape. There had been emphatic and severe condemnation of the sheriff’s offi ce at the time, and since then, repute or no
repute, money or no money, convicted criminals were supposed to
stay in the county jail at night at least.
Cowperwood meditated this calmly, looking out of the lawyer’s window into Second Street. He did not much fear anything
that might happen to him in Jaspers’s charge since his fi rst taste of
that gentleman’s hospitality, although he did object to spending
nights in the county jail when his general term of imprisonment
was being reduced no whit thereby. All that he could do now in connection with his affairs, unless he could have months of freedom,
could be as well adjusted from a prison cell as from his Third Street
offi ce – not quite, but nearly so. Anyhow, why parley? He was facing a prison term, and he might as well accept it without further
ado. He might take a day or two fi nally to look after his affairs; but
beyond that, why bother?
«When, in the ordinary course of events, if you did nothing at
all, would I come up for sentence?»
446
THE FINANCIER
«Oh, Friday or Monday, I fancy», replied Steger. «I don’t know
what move Shannon is planning to make in this matter. I thought
I’d walk around and see him in a little while».
«I think you’d better do that», replied Cowperwood. «Friday or
Monday will suit me, either way. I’m really not particular. Better
make it Monday if you can. You don’t suppose there is any way you
can induce Jaspers to keep his hands off until then? He knows I’m
perfectly responsible».
«I don’t know, Frank, I’m sure; I’ll see. I’ll go around and talk to
him to-night. Perhaps a hundred dollars will make him relax the rigor of his rules that much».
Cowperwood smiled grimly.
«I fancy a hundred dollars would make Jaspers relax a whole
lot of rules», he replied, and he got up to go.
Steger arose also. «I’ll see both these people, and then I’ll call
around at your house. You’ll be in, will you, after dinner?»
«Yes».
They slipped on their overcoats and went out into the cold February day, Cowperwood back to his Third Street offi ce, Steger to see
Shannon and Jaspers.
CHAPTER XLIX
The business of arranging Cowperwood’s sentence for Monday
was soon disposed of through Shannon, who had no personal objection to any reasonable delay.
Steger next visited the county jail, close on to fi ve o’clock, when
it was already dark. Sheriff Jaspers came lolling out from his private library, where he had been engaged upon the work of cleaning his pipe.
«How are you, Mr. Steger?» he observed, smiling blandly. «How
are you? Glad to see you. Won’t you sit down? I suppose you’re round
here again on that Cowperwood matter. I just received word from
the district attorney that he had lost h is case».
«That’s it, Sheriff», replied Steger, ingratiatingly. «He asked me to
step around and see what you wanted him to do in the matter. Judge
Payderson has just fi xed the sentence time for Monday morning at
ten o’clock. I don’t suppose you’ll be much put out if he doesn’t
show up here before Monday at eight o’clock, will you, or Sunday
night, anyhow? He’s perfectly reliable, as you know». Steger was
sounding Jaspers out, politely trying to make the time of Cowperwood’s arrival a trivial matter in order to avoid paying the hundred
dollars, if possible. But Jaspers was not to be so easily disposed of.
His fat face lengthened considerably. How could Steger ask him such
a favor and not even suggest the slightest form of remuneration?
«It’s ag’in’ the law, Mr. Steger, as you know», he began, cautiously
and complainingly. «I’d like to accommodate him, everything else
448
THE FINANCIER
being equal, but since that Albertson case three years ago we’ve
had to run this offi ce much more careful, and –»
«Oh, I know, Sheriff», interrupted Steger, blandly, «but this isn’t
an ordinary case in any way, as you can see for yourself. Mr. Cowperwood is a very important man, and he has a great many things to
attend to. Now if it were only a mere matter of seventy-fi ve or a hundred dollars to satisfy some court clerk with, or to pay a fi ne, it would
be easy enough, but –» He paused and looked wisely away, and Mr.
Jaspers’s face began to relax at once. The law against which it was
ordinarily so hard to offend was not now so important. Steger saw
that it was needless to introduce any additional arguments.
«It’s a very ticklish business, this, Mr. Steger», put in the sheriff,
yieldingly, and yet with a slight whimper in his voice. «If anything
were to happen, it would cost me my place all right. I don’t like to do
it under any circumstances, and I wouldn’t, only I happen to know
both Mr. Cowperwood and Mr. Stener, and I like ‘em both. I don’
think they got their rights in this matter, either. I don’t mind making an exception in this case if Mr. Cowperwood don’t go about too
publicly. I wouldn’t want any of the men in the district attorney’s offi ce to know this. I don’t suppose he’ll mind if I keep a deputy somewhere near all the time for looks’ sake. I have to, you know, really,
under the law. He won’t bother him any. Just keep on guard like».
Jaspers looked at Mr. Steger very fl atly and wisely – almost placatingly under the circumstances – and Steger nodded.
«Quite right, Sheriff, quite right. You’re quite right», and he
drew out his purse while the sheriff led the way very cautiously back
into his library.
«I’d like to show you the line of law-books I’m fi xing up for myself in here, Mr. Steger», he observed, genially, but meanwhile closing his fi ngers gently on the small roll of ten-dollar bills Steger was
handing him. «We have occasional use for books of that kind here,
as you see. I thought it a good sort of thing to have them around».
He waved one arm comprehensively at the line of State reports, re-
449
THEODORE DREISER
vised statutes, prison regulations, etc., the while he put the money in
his pocket and Steger pretended to look.
«A good idea, I think, Sheriff. Very good, indeed. So you think if
Mr. Cowperwood gets around here very early Monday morning, say
eight or eight-thirty, that it will be all right?»
«I think so», replied the sheriff, curiously nervous, but agreeable, anxious to please. «I don’t think that anything will come up
that will make me want him earlier. If it does I’ll let you know, and
you can produce him. I don’t think so, though, Mr. Steger; I think
everything will be all right». They were once more in the main hall
now. «Glad to have seen you again, Mr. Steger – very glad», he added. «Call again some day».
Waving the sheriff a pleasant farewell, he hurried on his way to
Cowperwood’s house.
You would not have thought, seeing Cowperwood mount
the front steps of his handsome residence in his neat gray suit and
well-cut overcoat on his return from his offi ce that evening, that
he was thinking that this might be his last night here. His air and
walk indicated no weakening of spirit. He entered the hall, where
an early lamp was aglow, and encountered «Wash» Sims, an old negro factotum, who was just coming up from the basement, carrying
a bucket of coal for one of the fi replaces.
«Mahty cold out, dis evenin’, Mistah Coppahwood», said
Wash, to whom anything less than sixty degrees was very cold. His
one regret was that Philadelphia was not located in North Carolina,
from whence he came.
«‘Tis sharp, Wash», replied Cowperwood, absentmindedly.
He was thinking for the moment of the house and how it had looked,
as he came toward it west along Girard Avenue – what the neighbors
were thinking of him, too, observing him from time to time out of
their windows. It was clear and cold. The lamps in the receptionhall and sitting-room had been lit, for he had permitted no air of
funereal gloom to settle down over this place since his troubles had
begun. In the far west of the street a last tingling gleam of lavender
450
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