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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 five
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 finding 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 office, 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
sufficient 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 five hundred thousand 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 first 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 first 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 first count is not valid, and that that verdict
should be set aside and a new trial granted."
247 / 312

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