Tutt and Mr. Tutt - Arthur Train
"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.
"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, look 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 repeated 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 unnecessarily 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 evidence 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 harmless. Secondly, moreover, it appears that the
complainant 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 again!'" 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 corridor the party came face
to face with Mr. and Mrs. Tunnygate.
"Huh!" sneered Tunnygate.
"Huh!" retorted Appleboy.
Wile Versus Guile
For 'tis the sport to have the engineer
Hoist with his own petar.--HAMLET.
It was a mouse by virtue of which Ephraim Tutt had leaped into fame. It
is true that other characters famous in song and story--particularly in
"Mother Goose"--have similarly owed their celebrity in whole or part to
rodents, but there is, it is submitted, no other case of a mouse, as
mouse _per se_, reported in the annals of the law, except Tutt's mouse,
from Doomsday Book down to the present time.
Yet it is doubtful whether without his mouse Ephraim Tutt would ever
have been heard of at all, and same would equally have been true if when
pursued by the chef's gray cat the mouse aforesaid had jumped in another
direction. But as luck would have it, said mouse leaped foolishly into
an open casserole upon a stove in the kitchen of the Comers Hotel, and
Mr. Tutt became in his way a leader of the bar.
It is quite true that the tragic end of the mouse in question has
nothing to do with our present narrative except as a side light upon the
vagaries of the legal career, but it illustrates how an attorney if he
expects to succeed in his profession, must be ready for anything that
comes along--even if it be a mouse.
The two Tutts composing the firm of Tutt & Tutt were both, at the time
of the mouse case, comparatively young men. Tutt was a native of Bangor,
Maine, and numbered among his childhood friends one Newbegin, a
commercial wayfarer in the shingle and clapboard line; and as he hoped
at some future time to draw Newbegin's will or to incorporate for him
some business venture Tutt made a practise of entertaining his
prospective client at dinner upon his various visits to the metropolis,
first at one New York hostelry and then at another.
Chance led them one night to the Comers, and there amid the imitation
palms and imitation French waiters of the imitation French restaurant
Tutt invited his friend Newbegin to select what dish he chose from those
upon the bill of fare; and Newbegin chose kidney stew. It was at about
that moment that the adventure which has been referred to occurred in
the hotel kitchen. The gray cat was cheated of its prey, and in due
course the casserole containing the stew was borne into the dining room
and the dish was served.
Suddenly Mr. Newbegin contorted his mouth and exclaimed:
"Heck! A mouse!"
It was. The head waiter was summoned, the manager, the owner. Guests and
garcons crowded about Tutt and Mr. Newbegin to inspect what had so
unexpectedly been found. No one could deny that it was, mouse--cooked
mouse; and Newbegin had ordered kidney stew. Then Tutt had had his
inspiration.