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(N..Y. Charles Scribner's Sons, 1920) The Dog Andrew OPINION OF THE APPELLATE DIVISION OF THE NEW YORK SUPREME COURT. NOW see here !" shouted Mr. Appleboy, com- ing out of the boathouse, where he was cleaning his morning's catch of perch, as his neigh- bor Mr. Tunnygate crashed through the hedge and cut across Appleboy's parched lawn to the beach. "See here, Tunnygate, I won't have you trespassing on my place ! I've told you so at least a dozen times ! Look at the hole you've made in that hedge, now ! Why can't you stay in the path?" His ordinarily good-natured countenance was suffused with anger and perspiration. His irrita- tion with Mr. Tunnygate had reached the point of explosion. Tunnygate was a thankless friend and he was a great cross to Mr. Appleboy. Aforetime the two had been intimate in the fraternal, taciturn intimacy characteristic of fat men, an attraction perhaps akin to that exerted for one another by celestial bodies of great mass, for it is a fact that stout people do gravitate toward one another- and hang or float in placid juxtaposition, perhaps merely as a physical result of their avoirdupois. So Appleboy and Tunnygate had swum into each other's spheres of influence, either blown by the dallying winds of chance or drawn by some mysteri- ous animal magnetism, and, being both addicted to the delights of the soporific sport sanctified by Izaak Walton, had raised unto themselves portable temples upon the shores of Long Island Sound in that part of the geographical limits of the Greater City known aa Throggs Neck. Every morn during the heat of the summer months Appleboy would rouse Tunnygate or con- versely Tunnygate would rouse Appleboy, and each in his own wobbly skiff would row out to the spot which seemed most propitious to the pisca- torial art. There, under two green umbrellas, like two fat rajahs in their shaking howdahs upon the backs of two white elephants, the friends would sit in solemn equanimity awaiting the evasive cun- ner, the vagrant perch or cod or the occasional flirtatious eel. They rarely spoke and when they did the edifice of their conversation - their Tower of Babel, so to speak - was monosyllabic. Thus: "Huh ! Ain't had a bite!" "Huh!" "Huh !" Silence for forty minutes. Then: "Huh ! Had a bite?" "Nope !" "Huh !"I That was generally the sum total of their inter- change. Yet it satisfied them, for their souls were in harmony. To them it was pregnant of unutter- able meanings, of philosophic mysteries more subtle than those of the esoterics, of flowers and poetry, of bird-song and twilight, of all the nuances of softly whispered avowals, of the elusive harmonies of love's half-fainting ecstasy. "Huh !" "Huh !" And then into this Eden - only not by virtue of the excision of any vertebra such as was originally, necessary in the case of Adam - burst woman, There was silence no longer. The air was rent with clamor; for both Appleboy and Tunnygate, within a month of one another, took unto them- selves wives. Wives after their own image ! For a while things went well enough; it takes ladies a few weeks to find out each other's weak points. But then the new Mrs. Tunnygate - unex- pectedly yet undeniably began to exhibit the ser- pent's tooth, the adder's tongue or the cloven hoof - as the reader's literary traditions may lead him to prefer. For no obvious reason at all she con- ceived a violent hatred of Mrs. Appleboy, a hatred that waxed all the more virulent on account of its object's innocently obstinate refusal to comprehend or recognize it. Indeed Mrs. Tunnygate found it so difficult to rouse Mrs. Appleboy into a state of belligerency sufficiently interesting that she soon transferred her energies to the more worthy task of making Appleboy's life a burden to him. To this end she devoted herself with a truly Machiavellian ingenuity, devising all sorts of in- sults, irritations and annoyances, and adding to the venom of her tongue the inventive cunning of a Malayan witch doctor. The Appleboys' flower- pots mysteriously fell off the piazza, their thole- pins disappeared, their milk bottles vanished, Mr. Appleboy's fish lines acquired a habit of derange- ment equaled only by barbed-wire entanglements, and his clams went bad ! But these things might have been borne had it not been for the crowning achievement of her malevolence, the invasion of the Appleboys' cherished lawn, upon which they lavished all that anxious tenderness which other- wise they might have devoted to a child. It was only about twenty feet by twenty, and it was bordered by a hedge of moth-eaten privet, but anyone who has ever attempted to induce a blade of grass to grow upon a sand dune will fully, appreciate the deviltry of Mrs. Tunnygate's malignant mind. Already there was a horrid rent where Tunnygate had floundered through at her suggestion in order to save going round the pathetic grass plot which the Appleboys had strug- gled to create where Nature had obviously. intended a floral vacuum. Undoubtedly it had been the sight of Mrs. Appleboy with her small waternig pot patiently encouraging the recalcitrant blades that had suggested the malicious thought to Mrs. Tunnygate that maybe the Appleboys didn't own that far up the beach. They didn't - that was the mockery of it. Like many others they had built their porch on their boundary line, and, as Mrs. Tunnygate pointed out, they were claiming to own something that wasn't theirs. So Tunnygate, in daily obedience to his spouse, forced his way through the hedge to the beach, and daily the wrath of the Appleboys grew until they were driven almost.to desperation. Now when the two former friends sat fishing in their skiffs they either contemptuously ignored one another or, if they "Huh-Huhed !" at all the "Huhs !" resembled the angry growls of infuri- ated beasts. The worst of it was that the Apple- boys couldn't properly do anything about it., Tunnygate had, as Mrs. Tunnygate sneeringly pointed out, a perfect legal right to push his way 'through the hedge and tramp across the lawn, and she didn't propose to allow the Appleboys to gain any rights by proscription, either. Not much ! Therefore, when Mr. Appleboy addressed to Mr. Tunnygate the remarks with which this story, opens, the latter insolently replied in words, form, or substance that Mr. Appleboy could go to hell. Moreover, as he went by Mr. Appleboy he took pains to kick over a clod of transplanted sea grass, nurtured by Mrs. Appleboy as the darling of her bosom, and designed to give an air of verisimili- tude to an otherwise bare and unconvincing surface of sand. Mr. Appleboy almost cried with vexation. "Oh !" he ejaculated, struggling for words to express the full content of his feeling. "Gosh, but you're mean !" He hit it ! Curiously enough, that was exactly. the word ! Tunnygate was mean - and his mean- ness was second only to that of the fat hippo- potama, his wife. Then, without knowing why, for he had no formulated ideas as to the future, and probably only intended to try to scare Tunnygate with vague threats, Appleboy added: "I warn you not to go through that hedge again ! Understand - I warn you ! And if you do I won't be responsible for the consequences !" He really didn't mean a thing by the words, and Tunnygate knew it. "Huh !" retorted the latter contemptuously. "You !" Mr. Appleboy went inside the shack and banged the door. Mrs. Appleboy was peeling potatoes in the kitchen-living room. "I can't stand it !" he cried weakly. "He's driving me wild !" "Poor lamb !" soothed Mrs. Appleboy, peeling an interminable rind. "Ain't that just a sweetie? Look ! "It's most as long as your arm She held it up dangling between her thumb and 'fore-finger., Then, with a groan she. dropped it at his feet. "I know it's a real burden to you, deary !" she sighed. Suddenly they both bent forward with startled eyes, hypnotized. by the peel upon the floor. Unmistakably it spelt "dog" ! They looked at one another significantly. "It is a symbol !" breathed Mrs. Appleboy in an awed whisper. "Whatever it is, it's some grand idea !" ex- claimed her husband. "Do you know anybody who's got one? I mean a-a-" "I know just what-you mean," she agreed. "I wonder we never thought of it before ! But there wouldn't be any use in getting any dog !" "Oh, no !" he concurred. "We want a real, 'dog !" "One you know about !" she commented. "The fact is, " said he, rubbing his forehead, "if they know about 'em they do something to 'em. It ain't so easy to get the right kind." "Oh, we'll get one !" she encouraged him. "Now Aunt Eliza up to Livornia used to have one. It made a lot of trouble and they ordered her - the selectmen did - to, do away with it. But she only pretended she had - she didn't really-- and I think she's got him yet." "Gee !" said Mr. Appleboy tensely. "What sort was it?" "A bull !" she replied. "With a big white face." "That's the kind !" he agreed excitedly. "What was its name?" "Andrew," she answered. "That's a queer name for a dog !" he com- mented. "Still, I don't care what his name is, so long as he's the right kind of dog! Why don't you write to Aunt Eliza tonight?" "Of course Andrew may be dead," she hazarded. "Dogs do die." "Oh, I guess Andrew isn't dead !" he said hope- 'fully. "That tough kind of dog lasts a long time. What will you say to Aunt Eliza?" Mrs. Appleboy went to the dresser and took a pad and pencil from one of the shelves. "Oh, something like this," she answered, poising the pencil over the pad in her lap: "Dear Aunt Eliza: I hope you are quite well. It is sort of lonely living down here on the beach and there are a good many rough characters, so we are looking for a dog for companionship and pro- tection. Almost any kind of healthy dog would do and you may be sure he would have a good home. Hoping to see you soon. Your affectionate niece, Bashemath." "I hope she'll send us Andrew," said Appleboy fervently. "I guess she will !" nodded Bashemath. "What on earth is that sign?" wrathfully de- manded Mrs. Tunnygate one morning about a week later as she looked across the Appleboys' lawn from her kitchen window. "Can you read it, Herman?" Herman stopped trying to adjust his collar and went out on the piazza. "Something about 'dog'," he declared finally. "Dog "" she exclaimed. "They haven't got a dog !" "Well," he remarked, "that's what the sign says: 'Beware of the dog !' And there's something above it. Oh ! 'No crossing this property. Tres- passing forbidden.! " "What impudence !" avowed Mrs. Tunnygate. "Did you ever know such people ! First they try and take land that don't belong to them, and then they go and lie about having a dog. Where are they, anyway?" "I haven't ' seen 'em. this morning," he answered. "Maybe they've gone away and put up the sign so we won't go over. Think that'll stop us !" "In that case they've got another think comin' !" she retorted angrily. "I've a good mind to have you go over and tear up the whole place !" " 'N pull up the hedge?" he concurred eagerly. "Good chance !" Indeed, to Mr. Tunnygate it seemed the supreme opportunity both to distinguish himself in the eyes of his blushing bride and to gratify that perverse instinct inherited from our cave-dwelling ancestors to destroy utterly - in order, perhaps, that they may never seek to avenge themselves upon us - those whom we have wronged. Accordingly Mr. Tunnygate girded himself with his suspenders, and with a gleam of fiendish exultation in his eye stealthily descended from his porch and crossed to the hole in the hedge. No one was in sight except two barefooted searchers after clams a few hundred yards farther up the beach and a man working in a field half a mile away. The bay shimmered in the broiling August sun and from a distant grove came the rattle and wheeze of locusts. Throggs Neck blazed in silence, and utterly silent was the house of Appleboy. With an air of bravado, but with a slightly, accelerated heartbeat, Tunnygate thrust himself through the hole in.the hedge and looked scorn- fully about the Appleboy lawn. A fierce rage worked through his veins. A lawn ! What ef- frontery ! What business had these condescending second-raters to presume to improve a perfectly good beach which was satisfactory to other folks? He'd show 'em ! He took a step in the direction of the transplanted sea grass. Unexpectedly the door of the Appleboy kitchen opened. "I warned you !" enunciated Mr. Appleboy with unnatural calmness, which with another back- ground might have struck almost anybody as suspicious. "Huh !" returned the startled Tunnygate, forced under the circumstances to assume a nonchalance that he did not altogether feel. "You !" "Well," repeated Mr. Appleboy. "Don't ever say I didn't !" "Pshaw !" ejaculated Mr. Tunnygate disdain- fully. With premeditation and deliberation, and with undeniable malice aforethought, he kicked the near- est bunch of sea grass several feet in the air. His violence carried his leg high in the air and he, partially lost his equilibrium. Simultaneously a white streak shot from beneath the porch and something like a red-hot poker thrust itself savagely into an extremely tender part of his anatomy. "Ouch O - o - oh !" he yelled in agony. "Oh !" "Come here, Andrew !" said Mr. Appleboy mildly. "Good doggy ! Come here !" But Andrew paid no attention. He had firmly affixed himself to the base of Mr. Tunnygate's personality without any intention of being immedi- ately detached. And he had. selected that place, taken aim, and discharged himself with an air of confidence and skill begotten of lifelong experience. "Oh ! O-o-oh !" screamed Tunnygate, turn- ing wildly and clawing through the hedge, drag- ging Andrew after him. "Oh ! O-oh !" Mrs. Tunnygate rushed to the door in time to see her spouse lumbering up the beach with a white object gyrating in the air behind him. "What's the matter?" she called out languidly. Then perceiving the matter she hastily followed. The Appleboys; were standing on their lawn view- ing the whole proceeding with ostentatious indifference. Up the beach fled Tunnygate, his cries becoming fainter and fainter. The two clam diggers watched him curiously, but made no attempt to go to his assistance. The man in the field leaned luxuriously upon his hoe and surrendered himself to unalloyed delight. Tunnygate was now but a white flicker against the, distant sand. His wails had a dying fall: "0-o-oh !" "Well, we warned him !" remarked Mr. Apple- boy to Bashemath with a smile in which, however, lurked a slight trace of apprehension. "We certainly did !" she replied. Then after a moment she added a trifle anxiously: "I wonder what will happen to Andrew !" Tunnygate did not return. Neither did Andrew. Secluded in their kitchen living-room the Apple- boys heard a motor arrive and through a crack in the door saw it carry Mrs. Tunnygate away be- decked as for some momentous ceremonial. At four o'clock, while Appleboy was digging bait, he observed another motor making its wriggly way along the dunes. It was fitted longitudinally with seats, had a wire grating and was marked "N. Y. P. D." Two policemen in uniform sat in front. Instinctively Appleboy realized that the gods had called him. His heart sank among the clams. Slowly he made his way back to the lawn where the wagon had stopped outside the hedge. "Hey there !" called out the driver. "Is your name Appleboy?" Appleboy nodded. "Put your coat on, then, and come along," directed the other. "I've got a warrant for you." "Warrant?" stammered Appleboy dizzily. "What's that?" cried Bashemath, appearing at the door. "Warrant for what?" The officer slowly descended and handed Apple- boy a paper. "For assault," he replied. "I guess you know what for, all right !" "We haven't assaulted anybody," protested Mrs... Appleboy heatedly. "Andrew-----" "You can explain all that to the judge " retorted the cop. "Meantime put on your duds and climb in. If you don't expect to spend the night at the station you'd better bring along the deed of your house so you can give bail." "But who's the warrant for?" persisted Mrs. Appleboy. "For Enoch Appleboy," retorted the cop. wearily. "Can't you read?" "But Enoch didn't do a thing !" she declared. "It was Andrew !" "Who's Andrew?" inquired the officer of the law mistrustfully. "Andrew's a dog," she explained. "Mr. Tutt," announced Tutt, leaning against his senior partner's door jamb with a formal-look- ing paper in his hand, "I have landed a case that will delight your legal soul." "Indeed?" queried the elder lawyer. "I have never differentiated between my legal soul and any other I may possess. However, I assume from your remark that we have been retained in a matter presenting some peculiarly absurd, archaic or other- wise interesting doctrine of law !" "Not directly," responded Tutt. "Though you will doubtless find it entertaining enough, but indi- rectly - atmospherically, so to speak - it touches upon doctrines of jurisprudence, of religion and of philosophy, replete with historic fascination." "'Good !" exclaimed Mr. Tutt, laying down his stogy. "What kind of a case is it?" "It's a dog case !" said the junior partner, wav- ing the paper. "The dog bit somebody." . "Ah !" exclaimed Mr. Tutt, perceptibly bright- ening. "Doubtless we shall find a precedent in Oliver Goldsmith's famous elegy: "And in that town a dog was found,"Only," explained Tutt, "in this case, though the man recovered of the bite, the dog refused to die !" "And so they want to prosecute the dog? It can't be done. An animal hasn't been brought to the bar of justice for several centuries." "No, no !" interrupted Tutt. "They don't----" "There was. a case," went on Mr. Tutt reminis- cently. "Let me see - at Sauvigny, I think it was - about 1457, when they tried a sow and three pigs for killing a child. The court assigned a lawyer to defend her, but like many assigned counsel he couldn't think of anything to say in her behalf. As regards the little pigs he did enter the plea that no animus was shown, that they had merely followed the example of their mother, and that at worst they were under age and irrespon- sible. However, the court found them all guilty, and the sow was publicly hanged in the market place." "What did they do with the three little pigs?" inquired Tutt with some interest. "They were pardoned, on account of their ex- treme youth," said Mr. Tutt, "and turned loose again - with a warning." "I'm glad of that !" sighed Tutt. "Is that a real case ?" "Absolutely," replied his partner. "I've read it in the Sauvigny records." "I'll be hanged !" exclaimed Tutt. "I never knew that animals were ever held personally responsible." "Why, of course they were !" said Mr. Tutt. "Why shouldn't they be? If animals have souls why shouldn't they be responsible for their acts?" "But they haven't any souls !" protested Tutt. "Haven't they now?" remarked the elder law- yer. "I've seen many an old horse that had a great deal more conscience than his master. And on general principles wouldn't it be far more just and humane to have the law deal with a vicious animal that had injured somebody than to leave its punish- ment to an irresponsible and arbitrary owner who might be guilty of extreme brutality?" "If the punishment would do any good - yes !" agreed Tutt. "Well, who knows?" meditated Mr. Tutt. "I wonder if it ever does any good? But anybody would have to agree that responsibility for one's acts should depend upon the degree of one's intelli- gence - and from that point of view many of our friends are really much less responsible than sheep." "Which, as you so sagely point out, would, how- ever, be a poor reason for letting their families punish them in case they did wrong. just think how such a privilege might be abused ! If Uncle John didn't behave himself as his nephews thought proper they could simply set upon him and briskly beat him up." "Yes, of course, the law even to-day recognizes the right to exercise physical discipline within the 'family. Even homicide is excusable, under Section 1054 of our code, when committed in lawfully correcting a child or servant." "That's a fine relic of barbarism !" remarked Tutt. "But the child soon passes through that dan- gerous zone and becomes entitled to be tried for his offenses by a jury of his peers; the animal never does." "Well, an animal couldn't be tried by a jury of his peers, anyhow," said Mr. Tutt. "I've seen juries that were more like nanny goats than men !" commentated Tutt. "I'd like to see some of our clients tried by juries of geese or woodchucks." "The field of criminal responsibility is the No Man's Land of the law," mused Mr. Tutt. "Roughly, mental capacity to understand the na- ture 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 theoretic- ally 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 chip- munk." "Nevertheless, the law has always been consist. ent," 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 part- ner. "I knew a flea once, who ---" "They had a regular form of procedure," con- tinued 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 sum- moned 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 bef ore 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. "Some- times they became even more prolific and destruc- tive. than they were before, and sometimes they promptly died. All the leeches were prosecuted at Lausanne in 1451. A few selected representa- tives were brought into court, tried, convicted and ordered to depart within a fixed period. Maybe they didn't fully grasp their obligations or per- haps were just acting contemptuously, but they didn't depart and so were promptly exorcised. Im- mediately 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. Chassensee, the advocate appointed to de- fend them. They had been a great nuisance and were ordered to appear in court. But none of them turned up. M. Chassensee 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 exten- sion. 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, there- fore, 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 Chassensee 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 con- tinued 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 them to try An- drew," 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 dis- quisition 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 will- fully and wrongfully make an assault in and upon the legs and body of him the said Herman Tunny- gate, 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 Apple- boy, which said dog, being of the name of 'An- drew,' the said Enoch Appleboy did then and there 'feloniously, willfully and wrongfully incite, pro- voke, and encourage, then and there being, to bite him, the said Herman Tunnygate, by means where- of 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 spec- tacles, "is a document worthy of preservation in ,the Congressional Library. Who drew it?" "Don't know," answered Tutt I "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 indict- ment 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, pro- voked and encouraged, bite the legs and body of him the said Herman - did then and there feloni- ously, 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 are not 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 manifcst attention by Tutt, who, had nevertheless managed to slip in an Abys- sinian brother on the back row, and an-ex-dog fancier for Number Six. Also among those pres- ent 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 im- bibed some vicarious confidence from this state- ment 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 sum- mer - 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 Metro- politan 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, begog- gled and with his hair plastered evenly down on either side of his small round head, rose with seri- ous 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 com- plainant 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. Tunny- gate'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 gap- ing 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 at- tacking a stout stump. The witness had been an old friend of Mr. Appleboy's, had he not? Tunny- gate admitted it, and Tutt pecked him again. Never had done him any wrong, had he? Noth- ing 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 wit- ness 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 obstruc- tion !" 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 Wither- spoon. Then he turned to Tunnygate. "The es- sence 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 fixied 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 attri- butes 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 ad- venturers. in matrimony, these plumbers, bird mer- chants, "delicatessens" and the rest looked, per- ceived 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 mindShe 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' terri- torial ambitions, the irascibility of the wife, the violent threats of the husband; or that Mrs. Apple- boy 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 unhesi- tatingly accepted his implied accusations as true, though under the rules of evidence he was bound by her denials. Peck I: "Did you not knock Mrs. Appleboy's flower pots off the piazza?" he demanded significantly. "Neverl I never did !" she 'declared passion- ately. 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 ani- mal'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 sug- gestion 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 be- tween 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 Apple- boy. "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, look- ing 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." 0 woman ! "That is all," declared Tutt with a triumphant smile. "Then," snapped Pepperill, "why did you send for him?" "I was lonely," answered Bashemath unblush- ingly. "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. "One question, if you please, madam," said Judge Witherspoon. "May I be permitted to" -- he coughed as a suppressed snicker ran round the court -- "that is - may I not - er - Oh, loo here ! How did you happen to have the idea of getting a dog?" Mrs. Appleboy turned the full moon of her, homely countenance upon the court. "The potato peel came down that way !" she explained blandly. "What !" exploded the dealer in rubber novelties. "The potato peel - it spelled 'dog,''' she re- peated artlessly. "Lord!" deeply suspirated Pepperill. "What a case! Carry me out !" "Well, Mr. Tutt," said the judge, "now I will hear what you may wish to say upon the question of whether this issue should be submitted to the jury. However, I shall rule that the indictment is sufficient." Tutt elegantly rose. "Having due respect to Your Honor's ruling as to the sufficiency of the indictment I shall address myself simply to the question of scienter. I might, of course, dwell upon the impropriety of charging the defendant with criminal responsibility for the act of another free agent even if that agent be an animal - but I will leave that, if necessary, for the Court of Appeals. If anybody were to be indicted in this case I hold it should have been the dog Andrew. Nay, I do not jest ! But I can see by Your Honor's expression that any argument upon that score would be without avail." "Entirely," remarked Witherspoon. "Kindly go on "Well," continued Tutt, "the law of this matter needs no elucidation. It has been settled since the time of Moses." "Of whom?" inquired Witherspoon. "You don't need to go back farther than Chief Justice Marshall so far as I am concerned." Tutt bowed. "It is an established doctrine of the common law both of England and America that it is wholly proper for one to keep a domestic animal for his use, pleasure or protection, until, as Dykeman, J., says in Muller vs. McKesson, 10 Hun., 45, 'some vicious propensity is developed and brought out to the knowledge of the owner.' Up to that time the man who keeps a dog or other animal cannot be charged with liability for his acts. This has always been the law. "In the twenty-first chapter of Exodus at the twenty-eighth verse it is written: 'If an ox gore a man or a woman, that they die; then the ox shall be surely stoned, and his flesh shall not be eaten; but the owner of the ox shall be quit. But if the ox were wont to push with his horn in time past, and it hath been testified to his owner, and he hath not kept him in, but that he hath killed a man or a woman; the ox shall be stoned, and his owner also shall be put to death.' "In the old English case of Smith vs. Pehal, 2 Strange, 1264, it was said by the court: 'If a dog has once bit a man, and the owner having notice thereof keeps the dog, and lets him go about or lie at his door, an action will lie against him at the suit of a person who is bit, though it happened by such person's treading on the dog's toes; for it was owing to his not hanging the dog on the first notice. And the safety of the king's subjects ought not afterwards to be endangered.' That is sound law; but it is equally good law that 'if a person with full knowledge of the evil propensities of an animal wantonly excites him or voluntarily and unneces- sarily puts himself in the way of such an animal he would be adjudged to have brought the injury upon himself, and ought not to be entitled to recover. In such a case it cannot be said in a legal sense that the keeping of the animal, which is the gravamen of the offense, produced the injury.' "Now in the case at bar, first there is clearly no evidence that this defendant knew or ever suspected that the dog Andrew was otherwise than of a mild and gentle disposition. That is, there is no evi- dence whatever of scienter. In fact, except in this single instance there is no evidence that Andrew ever bit anybody. Thus, in the word of Holy Writ the defendant Appleboy should be quit, and in the language of our own courts he must be held harm- less. Secondly, moreover, it appears that the com- plainant deliberately put himself in the way of the dog Andrew, after full warning. I move that the jury be directed to return a verdict of not guilty." "Motion granted," nodded Judge Witherspoon, burying his nose in his handkerchief. "I hold that every dog is entitled to one bite." "Gentlemen of the jury," chanted the clerk: "How say you? Do you find the defendant guilty, or not guilty?" "Not guilty," returned the foreman eagerly, amid audible evidences of satisfaction from the Abyssinian brother, the Baby's World editor and the others. Mr. Appleboy clung to Tutt's hand, overcome by emotion. "Adjourn court !" ordered the judge. Then he beckoned, to Mr. Appleboy. "Come up here !" he directed. Timidly Mr. Appleboy approached the dais. "Don't do it again !" remarked His Honor shortly. "Eh? Beg pardon, Your Honor, I mean --" "I said: 'Don't do it againl' " repeated the judge with a twinkle in his eye. Then lowering his voice he whispered: "You see - I come from Livornia, and I've known Andrew for a long time." As Tutt guided the Appleboys out into the cor- ridor the party came face to face with Mr. and Mrs. Tunnygate. "Huh !" sneered Tunnygate. "Huh !" retorted Appleboy., |
