Tutt and Mr. Tutt Part 21

"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 hoa.r.s.ely. "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 d.a.m.n? 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 unblus.h.i.+ngly.

"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 e.j.a.c.u.l.a.t.ed 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 d.y.k.eman, 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 ent.i.tled 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 ent.i.tled 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.