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“The Grand Jury of the County of New York by this indictment accuse Enoch Appleboy of the crime of assault in the second degree, committed as follows: 

“Said Enoch Appleboy, late of the Borough of Bronx, City and County aforesaid, on the 21st day of July, in the year of our Lord one thousand nine hundred and fifteen, at the Borough and County aforesaid, with force and arms in and upon one Herman Tunnygate, in the peace of the State and People then and there being, feloniously did willfully and wrongfully make an assault in and upon the legs and body of him the said Herman Tunnygate, by means of a certain dangerous weapon, to wit:  one dog, of the form, style and breed known as ‘bull,’ being of the name of ‘Andrew,’ then and there being within control of the said Enoch Appleboy, which said dog, being of the name of ‘Andrew,’ the said Enoch Appleboy did then and there feloniously, willfully and wrongfully incite, provoke, and encourage, then and there being, to bite him, the said Herman Tunnygate, by means whereof said dog ‘Andrew’ did then and there grievously bite the said Herman Tunnygate in and upon the legs and body of him, the said Herman Tunnygate, and the said Enoch Appleboy thus then and there feloniously did willfully and wrongfully cut, tear, lacerate and bruise, and did then and there by the means of the dog ‘Andrew’ aforesaid feloniously, willfully and wrongfully inflict grievous bodily harm upon the said Herman Tunnygate, against the form of the statute in such case made and provided, and against the peace of the People of the State of New York and their dignity.”

“That,” asserted Mr. Tutt, wiping his spectacles, “is a document worthy of preservation in the Congressional Library.  Who drew it?”

“Don’t know,” answered Tutt, “but whoever he was he was a humorist!”

“It’s no good.  There isn’t any allegation of scienter in it,” affirmed Mr. Tutt.

“What of it?  It says he assaulted Tunnygate with a dangerous weapon.  You don’t have to set forth that he knew it was a dangerous weapon if you assert that he did it willfully.  You don’t have to allege in an indictment charging an assault with a pistol that the defendant knew it was loaded.”

“But a dog is different!” reasoned Mr. Tutt.  “A dog is not per se a dangerous weapon.  Saying so doesn’t make it so, and that part of the indictment is bad on its face—­unless, to be sure, it means that he hit him with a dead dog, which it is clear from the context that he didn’t.  The other part—­that he set the dog on him—­lacks the allegation that the dog was vicious and that Appleboy knew it; in other words an allegation of scienter.  It ought to read that said Enoch Appleboy ’well knowing that said dog Andrew was a dangerous and ferocious animal and would, if incited, provoked and encouraged, bite the legs and body of him the said Herman—­did then and there feloniously, willfully and wrongfully incite, provoke and encourage the said Andrew, and so forth.’”