mused Mr. Tutt. "Roughly, mental capacity to understand the nature of
one's acts is the test, but it is applied arbitrarily in the case of
human beings and a mere point of time is taken beyond which,
irrespective of his actual intelligence, a man is held accountable for
whatever he does. Of course that is theoretically unsound. The more
intelligent a person is the more responsible he should be held to be and
the higher the quality of conduct demanded of him by his fellows. Yet
after twenty-one all are held equally responsible--unless they're
actually insane. It isn't equity! In theory no man or animal should be
subject to the power of discretionary punishment on the part of
another--even his own father or master. I've often wondered what earthly
right we have to make the animals work for us--to bind them to slavery
when we denounce slavery as a crime. It would horrify us to see a human
being put up and sold at auction. Yet we tear the families of animals
apart, subject them to lives of toil, and kill them whenever we see fit.
We say we do this because their intelligence is limited and they cannot
exercise any discrimination in their conduct, that they are always in
the zone of irresponsibility and so have no rights. But I've seen
animals that were shrewder than men, and men who were vastly less
intelligent than animals."
"Right-o!" assented Tutt. "Take Scraggs, for instance. He's no more
responsible than a chipmunk."
"Nevertheless, the law has always been consistent," said Mr. Tutt, "and
has never discriminated between animals any more than it has between men
on the ground of varying degrees of intelligence. They used to try 'em
all, big and little, wild and domesticated, mammals and invertebrates."
"Oh, come!" exclaimed Tutt. "I may not know much law, but--"
"Between 1120 and 1740 they prosecuted in France alone no less than
ninety-two animals. The last one was a cow."
"A cow hasn't much intelligence," observed Tutt.
"And they tried fleas," added Mr. Tutt.
"They have a lot!" commented his junior partner. "I knew a flea once,
who--"
"They had a regular form of procedure," continued Mr. Tutt, brushing the
flea aside, "which was adhered to with the utmost technical accuracy.
You could try an individual animal, either in person or by proxy, or you
could try a whole family, swarm or herd. If a town was infested by rats,
for example, they first assigned counsel--an advocate, he was
called--and then the defendants were summoned three times publicly to
appear. If they didn't show up on the third and last call they were
tried _in absentia_, and if convicted were ordered out of the country
before a certain date under penalty of being exorcised."
"What happened if they were exorcised?" asked Tutt curiously.
"It depended a good deal on the local power of Satan," answered the old
lawyer dryly. "Sometimes they became even more prolific and destructive
than they were before, and sometimes they promptly died. All the leeches
were prosecuted at Lausanne in 1451. A few selected representatives
were brought into court, tried, convicted and ordered to depart within
a fixed period. Maybe they didn't fully grasp their obligations or
perhaps were just acting contemptuously, but they didn't depart and so
were promptly exorcised. Immediately they began to die off and before
long there were none left in the country."
"I know some rats and mice I'd like to have exorcised," mused Tutt.
"At Autun in the fifteenth century the rats won their case," said Mr.
Tutt.
"Who got 'em off?" asked Tutt.
"M. Chassensée, the advocate appointed to defend them. They had been a
great nuisance and were ordered to appear in court. But none of them
turned up. M. Chassensée therefore argued that a default should not be
taken because _all_ the rats had been summoned, and some were either so
young or so old and decrepit that they needed more time. The court
thereupon granted him an extension. However, they didn't arrive on the
day set, and this time their lawyer claimed that they were under duress
and restrained by bodily fear--of the townspeople's cats. That all these
cats, therefore should first be bound over to keep the peace! The court
admitted the reasonableness of this, but the townsfolk refused to be
responsible for their cats and the judge dismissed the case!"
"What did Chassensée get out of it?" inquired Tutt.
"There is no record of who paid him or what was his fee."
"He was a pretty slick lawyer," observed Tutt. "Did they ever try
birds?"
"Oh, yes!" answered Mr. Tutt. "They tried a cock at Basel in 1474--for
the crime of laying an egg."
"Why was that a crime?" asked Tutt. "I should call it a _tour de
force_."
"Be that as it may," said his partner, "from a cock's egg is hatched the
cockatrice, or basilisk, the glance of whose eye turns the beholder to
stone. Therefore they tried the cock, found him guilty and burned him
and his egg together at the stake. That is why cocks don't lay eggs
now."
"I'm glad to know that," said Tutt. "When did they give up trying
animals?"
"Nearly two hundred years ago," answered Mr. Tutt. "But for some time
after that they continued to try inanimate objects for causing injury to
people. I've heard they tried one of the first locomotives that ran over
a man and declared it forfeit to the crown as a deodand."
"I wonder if you couldn't get 'em to try Andrew," hazarded Tutt, "and
maybe declare him forfeited to somebody as a deodand."
"Deodand means 'given to God,'" explained Mr. Tutt.
"Well, I'd give Andrew to God--if God would take him," declared Tutt
devoutly.
"But who is Andrew?" asked Mr. Tutt.
"Andrew is a dog," said Tutt, "who bit one Tunnygate, and now the Grand
Jury have indicted not the dog, as it is clear from your historical
disquisition they should have done, but the dog's owner, Mr. Enoch
Appleboy."
"What for?"
"Assault in the second degree with a dangerous weapon."
"What was the weapon?" inquired Mr. Tutt simply.
"The dog."
"What are you talking about?" cried Mr. Tutt. "What nonsense!"
"Yes, it is nonsense!" agreed Tutt. "But they've done it all the same.
Read it for yourself!" And he handed Mr. Tutt the indictment.
* * * * *
"The Grand Jury of the County of New York by this indictment accuse
Enoch Appleboy of the crime of assault in the second degree, committed
as follows:
"Said Enoch Appleboy, late of the Borough of Bronx, City and County
aforesaid, on the 21st day of July, in the year of our Lord one
thousand nine hundred and fifteen, at the Borough and County aforesaid,
with force and arms in and upon one Herman Tunnygate, in the peace of
the State and People then and there being, feloniously did willfully and
wrongfully make an assault in and upon the legs and body of him the said
Herman Tunnygate, by means of a certain dangerous weapon, to wit: one
dog, of the form, style and breed known as 'bull,' being of the name of
'Andrew,' then and there being within control of the said Enoch
Appleboy, which said dog, being of the name of 'Andrew,' the said Enoch
Appleboy did then and there feloniously, willfully and wrongfully
incite, provoke, and encourage, then and there being, to bite him, the
said Herman Tunnygate, by means whereof said dog 'Andrew' did then and
there grievously bite the said Herman Tunnygate in and upon the legs and
body of him, the said Herman Tunnygate, and the said Enoch Appleboy thus
then and there feloniously did willfully and wrongfully cut, tear,
lacerate and bruise, and did then and there by the means of the dog
'Andrew' aforesaid feloniously, willfully and wrongfully inflict
grievous bodily harm upon the said Herman Tunnygate, against the form of
the statute in such case made and provided, and against the peace of the
People of the State of New York and their dignity."
"That," asserted Mr. Tutt, wiping his spectacles, "is a document worthy
of preservation in the Congressional Library. Who drew it?"
"Don't know," answered Tutt, "but whoever he was he was a humorist!"
"It's no good. There isn't any allegation of _scienter_ in it," affirmed
Mr. Tutt.
"What of it? It says he assaulted Tunnygate with a dangerous weapon. You
don't have to set forth that he knew it was a dangerous weapon if you
assert that he did it willfully. You don't have to allege in an
indictment charging an assault with a pistol that the defendant knew it
was loaded."
"But a dog is different!" reasoned Mr. Tutt. "A dog is not _per se_ a
dangerous weapon. Saying so doesn't make it so, and that part of the
indictment is bad on its face--unless, to be sure, it means that he hit
him with a dead dog, which it is clear from the context that he didn't.
The other part--that he set the dog on him--lacks the allegation that
the dog was vicious and that Appleboy knew it; in other words an
allegation of _scienter_. It ought to read that said Enoch Appleboy
'well knowing that said dog Andrew was a dangerous and ferocious animal
and would, if incited, provoked and encouraged, bite the legs and body
of him the said Herman--did then and there feloniously, willfully and
wrongfully incite, provoke and encourage the said Andrew, and so
forth.'"
"I get you!" exclaimed Tutt enthusiastically. "Of course an allegation
of _scienter_ is necessary! In other words you could demur to the
indictment for insufficiency?"
Mr. Tutt nodded.
"But in that case they'd merely go before the Grand Jury and find
another--a good one. It's much better to try and knock the case out on
the trial once and for all."
"Well, the Appleboys are waiting to see you," said Tutt. "They are in my
office. Bonnie Doon got the case for us off his local district leader,
who's a member of the same lodge of the Abyssinian Mysteries--Bonnie's
been Supreme Exalted Ruler of the Purple Mountain for over a year--and
he's pulled in quite a lot of good stuff, not all dog cases either!
Appleboy's an Abyssinian too."
"I'll see them," consented Mr. Tutt, "but I'm going to have you try the
case. I shall insist upon acting solely in an advisory capacity. Dog
trials aren't in my line. There are some things which are _infra
dig_--even for Ephraim Tutt."
* * * * *
Mr. Appleboy sat stolidly at the bar of justice, pale but resolute.
Beside him sat Mrs. Appleboy, also pale but even more resolute. A jury
had been selected without much manifest attention by Tutt, who had
nevertheless managed to slip in an Abyssinian brother on the back row,
and an ex-dog fancier for Number Six. Also among those present were a
delicatessen man from East Houston Street, a dealer in rubber novelties,
a plumber and the editor of Baby's World. The foreman was almost as fat
as Mr. Appleboy, but Tutt regarded this as an even break on account of
the size of Tunnygate. As Tutt confidently whispered to Mrs. Appleboy,
it was as rotten a jury as he could get.
Mrs. Appleboy didn't understand why Tutt should want a rotten jury, but
she nevertheless imbibed some vicarious confidence from this statement
and squeezed Appleboy's hand encouragingly. For Appleboy, in spite of
his apparent calm, was a very much frightened man, and under the creases
of his floppy waistcoat his heart was beating like a tom-tom. The
penalty for assault in the second degree was ten years in state's
prison, and life with Bashemath, even in the vicinity of the Tunnygates,
seemed sweet. The thought of breaking stones under the summer sun--it
was a peculiarly hot summer--was awful. Ten years! He could never live
through it! And yet as his glance fell upon the Tunnygates, arrayed in
their best finery and sitting with an air of importance upon the front
bench of the court room, he told himself that he would do the whole
thing all over again--yes, he would! He had only stood up for his
rights, and Tunnygate's blood was upon his own head--or wherever it was.
So he squeezed Bashemath's hand tenderly in response.
Upon the bench Judge Witherspoon, assigned from somewhere upstate to
help keep down the ever-lengthening criminal calendar of the
Metropolitan District, finished the letter he was writing to his wife in
Genesee County, sealed it and settled back in his chair. An old war
horse of the country bar, he had in his time been mixed up in almost
every kind of litigation, but as he looked over the indictment he with
difficulty repressed a smile. Thirty years ago he'd had a dog case
himself; also of the form, style and breed known as bull.
"You may proceed, Mister District Attorney!" he announced, and little
Pepperill, the youngest of the D.A.'s staff, just out of the law school,
begoggled and with his hair plastered evenly down on either side of his
small round head, rose with serious mien, and with a high piping voice
opened the prosecution.
It was, he told them, a most unusual and hence most important case. The
defendant Appleboy had maliciously procured a savage dog of the most
vicious sort and loosed it upon the innocent complainant as he was on
his way to work, with the result that the latter had nearly been torn to
shreds. It was a horrible, dastardly, incredible, fiendish crime, he
would expect them to do their full duty in the premises, and they should
hear Mr. Tunnygate's story from his own lips.
Mr. Tunnygate limped with difficulty to the stand, and having been sworn
gingerly sat down--partially. Then turning his broadside to the gaping
jury he recounted his woes with indignant gasps.
"Have you the trousers which you wore upon that occasion?" inquired
Pepperill.
Mr. Tunnygate bowed solemnly and lifted from the floor a paper parcel
which he untied and from which he drew what remained of that now
historic garment.
"These are they," he announced dramatically.
"I offer them in evidence," exclaimed Pepperill, "and I ask the jury to
examine them with great care."
They did so.
Tutt waited until the trousers had been passed from hand to hand and
returned to their owner; then, rotund, chipper and birdlike as ever,
began his cross-examination much like a woodpecker attacking a stout
stump. The witness had been an old friend of Mr. Appleboy's, had he not?
Tunnygate admitted it, and Tutt pecked him again. Never had done him
any wrong, had he? Nothing in particular. Well, any wrong? Tunnygate
hesitated. Why, yes, Appleboy had tried to fence in the public beach
that belonged to everybody. Well, did that do the witness any harm? The
witness declared that it did; compelled him to go round when he had a
right to go across. Oh! Tutt put his head on one side and glanced at the
jury. How many feet? About twenty feet. Then Tutt pecked a little
harder.
"Didn't you tear a hole in the hedge and stamp down the grass when by
taking a few extra steps you could have reached the beach without
difficulty?"
"I--I simply tried to remove an illegal obstruction," declared Tunnygate
indignantly.
"Didn't Mr. Appleboy ask you to keep off?"
"Sure--yes!"
"Didn't you obstinately refuse to do so?"
Mr. Pepperill objected to "obstinately" and it was stricken out.
"I wasn't going to stay off where I had a right to go," asserted the
witness.
"And didn't you have warning that the dog was there?"
"Look here!" suddenly burst out Tunnygate. "You can't hector me into
anything. Appleboy never had a dog before. He got a dog just to sic him
on me! He put up a sign 'Beware of the dog,' but he knew that I'd think
it was just a bluff. It was a plant, that's what it was! And just as
soon as I got inside the hedge that dog went for me and nearly tore me
to bits. It was a rotten thing to do and you know it!"
He subsided, panting.
Tutt bowed complacently.
"I move that the witness' remarks be stricken out on the grounds first,
that they are unresponsive; second, that they are irrelevant,
incompetent and immaterial; third, that they contain expressions of
opinion and hearsay; and fourth, that they are abusive and generally
improper."
"Strike them out!" directed Judge Witherspoon. Then he turned to
Tunnygate. "The essence of your testimony is that the defendant set a
dog on you, is it not? You had quarreled with the defendant, with whom
you had formerly been on friendly terms. You entered on premises claimed
to be owned by him, though a sign warned you to beware of a dog. The dog
attacked and bit you? That's the case, isn't it?"
"Yes, Your Honor."
"Had you ever seen that dog before?"
"No, sir."
"Do you know where he got it?"
"My wife told me--"
"Never mind what your wife told you. Do you--"
"He don't know where the dog came from, judge!" suddenly called out Mrs.
Tunnygate in strident tones from where she was sitting. "But I know!"
she added venomously. "That woman of his got it from--"
Judge Witherspoon fixed her coldly with an impassive and judicial eye.
"Will you kindly be silent, madam? You will no doubt be given an
opportunity to testify as fully as you wish. That is all, sir, unless
Mr. Tutt has some more questions."
Tutt waved the witness from the stand contemptuously.
"Well, I'd like a chance to testify!" shrilled Mrs. Tunnygate, rising in
full panoply.
"This way, madam," said the clerk, motioning her round the back of the
jury box. And she swept ponderously into the offing like a full-rigged
bark and came to anchor in the witness chair, her chin rising and
falling upon her heaving bosom like the figurehead of a vessel upon a
heavy harbor swell.
Now it has never been satisfactorily explained just why the character of
an individual should be in any way deducible from such irrelevant
attributes as facial anatomy, bodily structure or the shape of the
cranium. Perhaps it is not, and in reality we discern disposition from
something far more subtle--the tone of the voice, the expression of the
eyes, the lines of the face or even from an aura unperceived by the
senses. However that may be, the wisdom of the Constitutional safeguard
guaranteeing that every person charged with crime shall be confronted by
the witnesses against him was instantly made apparent when Mrs.
Tunnygate took the stand, for without hearing a word from her firmly
compressed lips the jury simultaneously swept her with one comprehensive
glance and turned away. Students of women, experienced adventurers in
matrimony, these plumbers, bird merchants "delicatessens" and the rest
looked, perceived and comprehended that here was the very devil of a
woman--a virago, a shrew, a termagant, a natural-born trouble-maker; and
they shivered and thanked God that she was Tunnygate's and not theirs;
their unformulated sentiment best expressed in Pope's immortal couplet:
Oh woman, woman! when to ill thy mind
Is bent, all hell contains no fouler fiend.
She had said no word. Between the judge and jury nothing had passed, and
yet through the alpha rays of that mysterious medium of communication
by which all men as men are united where woman is concerned, the
thought was directly transmitted and unanimously acknowledged that here
for sure was a hell cat!
It was as naught to them that she testified to the outrageous illegality
of the Appleboys' territorial ambitions, the irascibility of the wife,
the violent threats of the husband; or that Mrs. Appleboy had been
observed to mail a suspicious letter shortly before the date of the
canine assault. They disregarded her. Yet when Tutt upon
cross-examination sought to attack her credibility by asking her various
pertinent questions they unhesitatingly accepted his implied accusations
as true, though under the rules of evidence he was bound by her denials.
Peck 1: "Did you not knock Mrs. Appleboy's flower pots off the piazza?"
he demanded significantly.
"Never! I never did!" she declared passionately
But they knew in their hearts that she had.
Peck 2: "Didn't you steal her milk bottles?"
"What a lie! It's absolutely false!"
Yet they knew that she did.
Peck 3: "Didn't you tangle up their fish lines and take their
thole-pins?"
"Well, I never! You ought to be ashamed to ask a lady such questions!"
They found her guilty.
"I move to dismiss, Your Honor," chirped Tutt blithely at the conclusion
of her testimony.
Judge Witherspoon shook his head.
"I want to hear the other side," he remarked. "The mere fact that the
defendant put up a sign warning the public against the dog may be taken
as some evidence that he had knowledge of the animal's vicious
propensities. I shall let the case go to the jury unless this evidence
is contradicted or explained. Reserve your motion."
"Very well, Your Honor," agreed Tutt, patting himself upon the abdomen.
"I will follow your suggestion and call the defendant. Mr. Appleboy,
take the stand."
Mr. Appleboy heavily rose and the heart of every fat man upon the jury,
and particularly that of the Abyssinian brother upon the back row, went
out to him. For just as they had known without being told that the new
Mrs. Tunnygate was a vixen, they realized that Appleboy was a kind,
good-natured man--a little soft, perhaps, like his clams, but no more
dangerous. Moreover, it was plain that he had suffered and was, indeed,
still suffering, and they had pity for him. Appleboy's voice shook and
so did the rest of his person as he recounted his ancient friendship for
Tunnygate and their piscatorial association, their common matrimonial
experiences, the sudden change in the temperature of the society of
Throggs Neck, the malicious destruction of their property and the
unexplained aggressions of Tunnygate upon the lawn. And the jury,
believing, understood.
Then like the sword of Damocles the bessemer voice of Pepperill severed
the general atmosphere of amiability: "Where did you get that dog?"
Mr. Appleboy looked round helplessly, distress pictured in every
feature.
"My wife's aunt lent it to us."
"How did she come to lend it to you?"
"Bashemath wrote and asked for it."
"Oh! Did you know anything about the dog before you sent for it?"
"Of your own knowledge?" interjected Tutt sharply.
"Oh, no!" returned Appleboy.
"Didn't you know it was a vicious beast?" sharply challenged Pepperill.
"Of your own knowledge?" again warned Tutt.
"I'd never seen the dog."
"Didn't your wife tell you about it?"
Tutt sprang to his feet, wildly waving his arms: "I object; on the
ground that what passed between husband and wife upon this subject must
be regarded as confidential."
"I will so rule," said Judge Witherspoon, smiling. "Excluded."
Pepperill shrugged his shoulders.
"I would like to ask a question," interpolated the editor of Baby's
World.
"Do!" exclaimed Tutt eagerly.
The editor, who was a fat editor, rose in an embarrassed manner.
"Mr. Appleboy!" he began.
"Yes, sir!" responded Appleboy.
"I want to get this straight. You and your wife had a row with the
Tunnygates. He tried to tear up your front lawn. You warned him off. He
kept on doing it. You got a dog and put up a sign and when he
disregarded it you sicked the dog on him. Is that right?"
He was manifestly friendly, merely a bit cloudy in the cerebellum. The
Abyssinian brother pulled him sharply by the coat tails.
"Sit down," he whispered hoarsely. "You're gumming it all up."
"I didn't sic Andrew on him!" protested Appleboy.
"But I say, why shouldn't he have?" demanded the baby's editor. "That's
what anybody would do!"
Pepperill sprang frantically to his feet.
"Oh, I object! This juryman is showing bias. This is entirely improper."
"I am, am I?" sputtered the fat editor angrily. "I'll show you--"
"You want to be fair, don't you?" whined Pepperill. "I've proved that
the Appleboys had no right to hedge in the beach!"
"Oh, pooh!" sneered the Abyssinian, now also getting to his feet.
"Supposing they hadn't? Who cares a damn? This man Tunnygate deserved
all he's got!"
"Gentlemen! Gentlemen!" expostulated the judge firmly. "Take your seats
or I shall declare a mistrial. Go on, Mr. Tutt. Call your next witness."
"Mrs. Appleboy," called out Tutt, "will you kindly take the chair?" And
that good lady, looking as if all her adipose existence had been devoted
to the production of the sort of pies that mother used to make, placidly
made her way to the witness stand.
"Did you know that Andrew was a vicious dog?" inquired Tutt.
"No!" answered Mrs. Appleboy firmly. "I didn't."
O woman!
"That is all," declared Tutt with a triumphant smile.
"Then," snapped Pepperill, "why did you send for him?"
"I was lonely," answered Bashemath unblushingly.
"Do you mean to tell this jury that you didn't know that that dog was
one of the worst biters in Livornia?"
"I do!" she replied. "I only knew Aunt Eliza had a dog. I didn't know
anything about the dog personally."
"What did you say to your aunt in your letter?"
"I said I was lonely and wanted protection."
"Didn't you hope the dog would bite Mr. Tunnygate?"
"Why, no!" she declared. "I didn't want him to bite anybody."
At that the delicatessen man poked the plumber in the ribs and they both
grinned happily at one another.
Pepperill gave her a last disgusted look and sank back in his seat.
"That is all!" he ejaculated feebly.