"What for?"

"a.s.sault 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 a.s.sault 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 a.s.sault 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," a.s.serted Mr. Tutt, wiping his spectacles, "is a doc.u.ment 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 a.s.saulted Tunnygate with a dangerous weapon. You don't have to set forth that he knew it was a dangerous weapon if you a.s.sert that he did it willfully. You don't have to allege in an indictment charging an a.s.sault 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 a.s.sault 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, a.s.signed 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 pa.s.sed from hand to hand and returned to their owner; then, rotund, chipper and birdlike as ever, began his cross-examination much like a woodp.e.c.k.e.r 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 gra.s.s 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," a.s.serted 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?"