"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 pa.s.s 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 Munic.i.p.al Reform a.s.sociation 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 ent.i.tled 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 ent.i.tled 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 a.s.sociate 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 a.s.sociate 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 quant.i.ties 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--princ.i.p.ally 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 a.s.sets 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 a.s.sist 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 ent.i.tled 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 princ.i.p.al 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 Gla.s.sberg, 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 ent.i.tled to do as he had done under the circ.u.mstances. 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 p.r.o.nouncing 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 a.s.sistants, 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 a.s.signment; 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 subst.i.tute 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: