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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 reflect his own
cogitation 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 testified by Mr. Stires that Mr. Cowperwood said
he had bought certificates 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 fire, 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 United 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 fight 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 fight.
They'll never get a damned dollar out of me now--not a dollar! I did intend to pay that five
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.
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