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.
