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."
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,