 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
