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_ 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. _
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