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, to say the least, startling."

While he was notably comforted by the dissenting opinions of the judges
in minority, and while he had been schooling himself to expect the worst
in this connection and had been arranging his affairs as well as he
could in anticipation of it, Cowperwood was still bitterly disappointed.
It would be untrue to say that, strong and self-reliant as he normally
was, he did not suffer. He was not without sensibilities of the highest
order, only they were governed and controlled in him by that c