36 



AMERICAN BEE JOURNAL, 



Jan. 17, 1901. 



wagon, two miles to haul it, and piled it up 

 five cases high, and ray ronsolation paid me 

 for the extra work in knowing there was not a 

 drop of leakage, and no hoops to loosen while 

 I slept. 



We can not be tio neat in handling and 

 marketing extracted honey. So I say. give 

 me new 60-pound cans, and I will guarantee my 

 honey to reach any market in such a condi- 

 tion that I shall not be ashamed of it, and no 

 loss from leakage or absorbing. If we want a 

 cheaper package for dark honey, there are 

 plenty of second-hand cans and cases to be 

 bought as cheaply as barrels. 



We welcome Mr. Fox to the tiu-can side of 

 the debate; and if he will only be present at 

 the Madison meeting of the Wisconsin State 

 Bee-Keepers" Association, on Feb. 4th and 5th, 

 next month, we (Mr. Fox, Mr. Hatch and our- 

 selves) will simply "do up " those wooden- 

 headed-liarrel chaps, like Messrs. Pickard. 

 Wilson, McNay, and others. Of course, we'll 

 treat them 6quare(can)ly, but will see that 

 they don't roll any of their honey-soakt and 

 leaky-dauby wooden barrels over us! We'll 

 just honey-can those boys so that they'll keep 

 like any other kind of canned goods. 



The Case of Utter vs. Utter.— As 



mentioned in a former number, we give this 

 week something further about the celebrated 

 peach-bee case of Utter vs. Utter, which came 

 to final trial at Goshen, N. Y., Dec. 17, 18 and 

 19, 1900. Gleanings in Bee-Culture contains 

 quite a full report of the trial, from which we 

 take the following, written by Editor E. R. 

 Root: 



The case was a peculiarly hard-fought one; 

 and after 35 or 30 witnesses had been exam- 

 ined on both sides the jury brought in a ver- 

 dict, after being out about ten minutes, for 

 the defendant, bee-man Utter. 



I need not say that the National Bee-Keep- 

 ers' Association took an active part in this 

 case — one that seemed to involve the very lite 

 of bee-keeping in New York. It pledged ?100 

 to Bacon & Merritt, two of the leading attor- 

 neys of Orange County — lawyers who have 

 been retained in some of the most important 

 cases that have been tried in that vicinity. 



There were many laughable incidents, and 

 some queer statements on tin- i>:nt nf the wit- 

 nesses for the plaintiff, as to ii..H the bees did 

 and could puncture fruit: hem they used 

 their "horns" (antennae) to make holes, etc. 

 In the lower court, several of the witnesses, 

 I am told, testified that the bees got up " on 

 their hind legs" and .v/'i((//tlii' fruit; went off 

 and left tlic- |.carh, and >tuiii: ciIuts; that a 

 rotten .spot at llic poiiii> iiicrcrd liy the stings 

 would buoii set in, and this would be subse- 

 quently visited by the bees. In the higher 

 court, that same set of witnesses testified that 

 the bees punctured the fruit with the " head 

 end," and not with the " business " end. It 

 was evident that the prosecution had realized 

 the utter absurdity of the former statement. 

 The plaintiff, fruit-man Utter, while on the 

 stand, went on to describe how the bee moved 

 its head first to one side and then the other, 

 and raised up on its legs and flopt its wings ; 

 that after this performance he found there 

 was a hole. This was corroborated with some 

 variation by his two sons. It was amusing to 

 see the plaintiff try to mimic the bee, on the 

 witness-stand, as he swayed his head from one 

 side to the other, raised up on his legs, and 

 flopt his arms. His motions were so Utterly 

 ridiculous, and so contrary to the real acts 

 and movements of bees, that every one in the 

 court-room, including the jury, laught, and 

 laught heartily. I sincerely believe that, if 

 the jury had gone out at that supreme mo- 

 ment on the evidence then presented, we 

 should have had a verdict in our favor, even 

 without one word of rebuttal testimony. 



Another witness, Mrs. W. II. Utter, the wife 

 of the plaintiff, testified that the bees would 

 alight on the fruit, and then with their 

 "horns" make holes in the peaches. She 

 stated that there were eight holes in one 

 peach she examined, and that three bees were 



on it ; that, after they left, there were three 

 more holes, or eleven in all. Mr. Bacon, one 

 of our attorneys, in his cross-examination, got 

 at the facts something in this waj'; 



" You say. Mrs. Utter, that there were three 

 holes after three bees had visited that peach !" 



" Yes." 



" You say that the bees made three holes 

 with their ^or;/s .^" 



" Yes, sir." 



" Where were these horns located !" 



•■ On the top of the head." 



"Two prongs like this?" said he. putting 

 his two hands over his head. 



" Yes." 



" And they took those two horns and dug 

 them right down into the peach, did they ;" 



" Yes."' 



" Well, now, Mrs. Utter, will you tell the 

 jury how three bees, each with two horns, 

 could make only Virre holes ? Shouldn't there 

 have been sij holes ?" 



" Wy-ah, wy-ah, wy-ah; they took those 

 two horns and put them together and then 

 poked them into the peach." 



" O — h !" said Mr. Bacon, with a wise look. 



At this there was an uproar of laughter. 

 When the jury and the audience had sub- 

 sided, Mr. Bacon continued : 



" You are sure the bees made these holes 

 with their horns V 



"Yes." 



" Well, don't you know that those are an- 

 tennse, or feelers ?'' 



Several had talkt about the so-called 

 " horns," and how bees make holes with the 

 horns: but after the learned counsel had 

 shown the C/ttn' absurdity of the horn theory, 

 then the prosecution began to talk about the 

 •■ jaws :" and some of the witnesses told how 

 the bees ran their " bills "' down into the 

 peach — meaning, of course, the tongue. But 

 the bill theory was untenable, and the rest of 

 the testimony was then confined to the jaws, 

 which, it was averred, were powerful enough 

 to puncture the skin of peaches. The prose- 

 cution claimed, among other things, that after 

 the bees had punctured the peaches the juice 

 ran down on the limbs, causing them to 

 wither and dry up. In the former trial it was 

 maintained that the trees were utterly de- 

 stroyed: and even in this trial the Peach 

 Utter at first talkt of the destruction of trees, 

 and claimed damage for the loss of trees and 

 fruit. The defense, on the other side, showed 

 by two good witnesses that the plaintiff, Mr. 

 Utter, the fruit-man, had said to each of the 

 afhants, that these trees were going to die, 

 and he would have to pull them up, and this 

 was before the bees are alleged to have visited 

 the fruit. 



I do not need to rehearse here the testimony 

 that was introduced by expert bee-keepers, 

 tho I can not omit reference to the testimony 

 of Prof. Frank Benton, Assistant Entomolo- 

 gist. Deixirtment of Agriculture, Washington, 

 I). ('. Prof. Benton had been sent by the 

 National Bee-Keepers' Association to render 

 expert testimony on the mouth parts of the 

 bees, and he certainly was the star witness for 

 the defense. He showed by live and dead 

 specimens of bees, and also by charts which 

 he had brought for the occasion, that in his 

 opinion it was a physical Impossibility for the 

 bees to puncture fruit with their mandibles 

 or jaws; that the jaws of bees were very dif- 

 ferent from those of wasps and other insects 

 having cutting edges or teeth. He chloro- 

 formed some live bees, and then past them 

 around to the jury, after our attorneys had 



ulitain{Ml consent fr the court to do so. He 



showed them that the delicate tongue, so far 

 from being a " bill " which could puncture a 

 sound peach, was more like a camel's-hair 

 brush ; that it would be absurd to suppose 

 that they would run this thru the skin of any 

 substance. He admitted that bees could tear 

 by picking away at fiber, but denied the pos- 

 sibility of their mttmn the skin of any fruit. 

 The jaws, or mandibles, had smooth rounding 

 edges, which, he showed by charts, were dif- 

 ferent in this respect from the jaws of a 

 wasp, that has cutting edges or teeth; that 

 the mandibles were made for forming plastic 

 sub.stances like wax* and even then the wax 

 had to be brought to a temperature of aliout 

 90 degrees before such work could be per- 

 formed. 



The professor's testimony, so far from bear- 

 ing evidence of prejudice, was what might be 



termed in legal phraseology, " candied." the 

 kind that weighs with a jury. There was no 

 evasion, and no attempt on his part to make 

 -//' of his testimony in favor of the bees. When 

 askt whether he regarded the experiment of 

 confining a few bees in a box with a peach as 

 worth anything to prove that bees would not 

 or could not puncture sound fruit, he said 

 that, in his opinion, it did not count for much, 

 as he doubted whether they would even help 

 themselves to honey under like circumstances. 



At the conclusion ot the testimony for the 

 defense, the prosecution called Peach Utter 

 back to the stand, and askt him whether the 

 trees, the fruit of which the bees were alleged 

 to have stung, causing the limbs to die, were 

 alive and in good order. He said yes. In very 

 good order. This testimonj' was produced, 

 probably, to show that the trees did not have 

 the " yellows " or " wet feet," as was claimed 

 by the defense. But Mr. Bacon, in his final 

 plea before the jury, called attention to the 

 fact that the plaintiff flrst testified that his 

 trees had been destroyed^ and that now they 

 were good and sound ; and yet he desired 

 compensation for the trees which he at first 

 said were destroyed! Mr. Bacon made a 

 strong plea, picking up all the important 

 threads of evidence, and hurling them at the 

 jury In a most forcible manner. 



The attorney for the plaintiff, while he did 

 not attack the testimony of Mr. Benton, 

 turned his guns upon A. I. Root, shaking his 

 fist in his face, and calling him the great 

 " poo-bah " of the West. A. I. R. did not ap- 

 pear to relish the compliment ; but the rest of 

 us enjoyed the joke immensely, tho there 

 wasn't one of us who knew what " poo-bah " 

 meant. We consoled A. I. by saying that it 

 signified something big, and told him not to 

 feel badly. 



Of course, no one could tell absolutely what 

 the jury would do: but it seemed to be made 

 up, if I could judge by their faces, of a lot ot 

 intelligent, thinking men. 



The judge, in his charge, rehearst very 

 carefully and Impartially the full case, and 

 then said that the jury, in order to render a 

 verdict t(jr tlie plaintiff, must find that the 

 bees ot the dclVmlant, and his bees alnne, were 

 the trespassers : and that it (the jury) should 

 further give very careful consideration to ex- 

 pert testimony. The jury then retired, and 

 in about ten minutes returned with a verdict 

 of "no cause for actloQ." 



The National Bee-Keepers' Association ex- 

 erted a powerful influence In the case, in that 

 it enabled Mr. Utter, the bee-man, to employ 

 the best legal talent, and, in addition, furnish 

 expert testimony on the bee-side of the ques- 

 tion, so that an unprejudiced jury, seeing and 

 knowing the tacts, would render a verdict 

 accordingly. 



This case was a hard-fought one from be- 

 ginning to end. There was no lack of legal 

 counsel on either side, and no lack of wit- 

 nc'ssi.s: but, thanks to the Association, we 

 will- able to show that the evidence adduced 

 by the plaintiff was, tor the most part, to put 

 a most charitable construction on it, founded 

 on misapprehenson, Ignorance, and prejudice. 

 There is no doubt that some witnesses for the 

 fruit-man actually believed that the bees did 

 puncture sound fruit with their " horns or 

 bills."' If they did so believe, and it they 

 heard our evidence, their belief must have 

 been most severely shaken before they went 

 away. 



The Delay and Interruption to our 



business, occasioned Jan. 1st by the water 

 poured on the fire above us, and Which landed 

 on our stock, will be over by the time our 

 readers receive this copy of the Bee Journal. 

 By another week we hope to know just what 

 and how much ot the bee-supply stock was 

 damaged by water. Some of it Is a total loss, 

 some slightly damaged, and some, still In good 

 condition by having been well protected with 

 tarpaulin covers. 



We are not anxious to have another such a 

 dampener put on our place ot business. While 

 it thoroly " settles the dust " it also quite as 

 thoroly unsettles things too much. However, 

 trials and tribulations are the common lot of 

 man and perhaps we are getting only our 

 share. 



