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 financial 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 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 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.