which the petitioner was already convicted, and for which he had suffered punishment. The conclusion we have reached is in accord with a proposition laid down by the Supreme Judicial Court of Massachusetts in the case of Morey v. Com., 108 Mass. 433, 435. The court there says, by Mr. Justice Gray: "A conviction of being a common seller of intoxicating liquors has been held to bar a prosecution for a single sale of such liquors within the same time, upon the ground that the lesser offense, which is fully proved by evidence of the mere fact of unlawfully making a sale, is merged in the greater offense; but an acquittal of the offense of being a common seller does not have the like effect. Com. v. Jenks, 1 Gray, 490, 492; Com. v. Hudson, 14 id. 11; Com. v. Mead, 10 Allen, 396." While this proposition accords so nearly with our own views, it is but fair to say that the decision in Morey v. Com. is the principal one relied on by the government to sustain the action of the District Court of Utah in this case. Morey was charged under a statute in one indictment with lewdly and lasciviously associating and cohabiting with a certain female to whom he was not married; and in another indictment be was charged with committing adultery with the same person on certain days within the period of the alleged cohabitation. The court held that a conviction on the first indictment was no bar to the second, although proof of the same acts of unlawful intercourse was introduced on both trials. The ground of the decision was that the evidence required to support the two indictments was not the same. The court said: "A conviction or acquittal upon one indictment is no bar to a subsequent conviction and sentence upon another, unless the evidence required to support a conviction upon one of them would have been sufficient to warrant a conviction upon the other. The test is not whether the defendant has already been tried for the same act, but whether he has been put in jeopardy for the same offense. A single act may be an offense against two statutes; and, if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other." Page 434. We think however that that case is distinguishable from the present. The crime of loose and lascivious association and cohabitation did not necessarily imply sexual intercourse, like that of living together as man and wife, though strongly presumptive of it. But be that as it may, it seems to us very clear that where, as in this case, a person has been tried and convicted for a crime which has various incidents included in it, he cannot be a second time tried for one of those incidents without being twice put in jeopardy for the same offense. It may be contended that adultery is not an incident of unlawful cohabitation, because marriage of one of the parties must be strictly proved. To this it may be answered that while this is true, the other ingredient (which is an incident of unlawful cohabitation) is an essential and principal ingredient of adultery; and though marriage need not be strictly proved on a charge of unlawful cohabitation, yet it is well known that the statute of 1882 was aimed against polygamy, or the having of two or more wives; and it is construed by this court as requiring, in order to obtain a conviction under it, that the parties should live together as husband and wives. It is familiar learning that there are many cases in which a conviction or an acquittal of a greater crime is a bar to a subsequent prosecution for a lesser one. In Mr. Wharton's Treatise on Criminal Lnw (vol. 1, § 560), the rule is stated as follows, to-wit: "An acquittal or conviction for a greater offense is a bar to a subsequent indictment for a minor offense included in the former, wherever, under the indictment for the greater offense, the defendant could have been convicted of the less;" and he in

said: "The offense of cohabitation, in the sense of this statute, is committed if there is a living or dwelling together as husband and wife. It is inherently a continuous offense, having duration, and not an offense consisting of an isolated act. That it was intended in that sense in these indictments is shown by the fact that in each the charge laid is that the defendant did on the day named and thereafter and continuously,' for the time specified, 'live and cohabit with more than one woman, to-wit, with' the seven women named, and during all the period aforesaid' 'did unlawfully claim, live and cohabit with all of said women as his wives.' Thus, in each indictment, the offense is laid as a continuing one, and a single one, for all the time covered by the indictment; and, taking the three indictments together, there is charged a continuing offense for the entire time covered by all three of the indictments. There was but a single offense committed prior to the time the indictments were found. * * * On the same principle there might have been an indictment covering each of the thirtyfive months, with imprisonment for seventeen years and a half, and fines amounting to $10,500, or even an indictment covering every week. ** * * It is to prevent such an application of penal laws that the rule has obtained that a continuing offense of the character of the one in this case can be committed but once, for the purposes of indictment or prosecution, prior to the time the prosecution is instituted." These views were established by an examination of many authorities. Now, the petitioner, in his plea, averred in terms that the unlawful cohabitation with which he was charged in the first indictment continued without intermission up to the time of finding that indictment, covering the time within which the adultery was laid in the second indictment. He also averred that the two indictments were found against him upon the testimony of the same witnesses, on one oath and one examination as to the alleged offense, covering the entire time specified in both indictments. This plea was demurred to by the prosecution, and the demurrer was sustained. The averments of the plea therefore must be taken as true. And assuming them to be true, can it be doubted that the adultery charged in the second indictment was an incident and part of the unlawful cohabitation? We have no doubt of it. True, in the case of Snow we held that it was not necessary to prove sexual intercourse in order to make out a case of unlawful cohabitation; that living together as man and wife was sufficient; but this was only because proof of sexual intercourse would have been merely cumulative evidence of the fact. Living together as man and wife is what we decided was meant by unlawful cohabitation under the statute. Of course, that includes sexual intercourse. And this was the integral part of the adultery charged in the second indictment, and was covered by and included in the first indictment and conviction. The case was the same as if the first indictment had in terms laid the unlawful cohabitation for the whole period preceding the finding of the indictment. The conviction on that indictment was in law a conviction of a crime which was continuous, extending over the whole period, including the time when the adultery was alleged to have been committed. The petitioner's sentence, and the punishment he underwent on the first indictment, was for that entire, continuous crime. It included the adultery charged. To convict and punish him for that also was a second conviction and punishment for the same offense. Whether an acquittal would have had the same effect to bar the second indictment is a different question, on which we express no opinion. We are satisfied that a conviction was a good bar, and that the court was wrong in overruling it. We think so because the material part of the adultery charged was comprised within the unlawful cohabitation of

CRIMINAL LAW-DANGEROUS WEAPON.-To point an unloaded gun at another, at a distance from thirty to seventy yards, whereby such other is put in fear, and flees, is not an assault with a dangerous weapon. Such an act no doubt deserves the severest reprehension, but unless it constitutes an assault the conviction cannot be sustained, no difference what view we may take of the other questions presented. Burrill's Law Dictionary defines an assault to be an unlawful setting upon one's person. Finch on Law, book 3, chapter 9: An intentional attempt by violence to do a corporeal injury to another. Wharton on Criminal Law, 311: Hays v. People, 1 Hill, 351: An attempt or offer, with force and violence, to do a corporeal hurt to another, as by striking at him with or without a weapon, or presenting a gun, etc. Rapalje defines it thus: An assault is (1) an attempt unlawfully to apply an actual force, however small, to the person of another, directly or indirectly; (2) the act of using such a gesture toward another person as to give him reasonable grounds to believe that the person using the gesture meant to apply actual force to his person. 1 Rap. Law Dict., tit. "Assault." Any willful and unlawful attempt or offer with force to do a corporeal injury to another. 1 Abb. Law Dict., tit. "Assault," p. 90. But these definitions furnish no certain or satisfactory solution of the question, and if we look at the adjudged cases they appear to be irreconcilable. Chapman v. State, 78 Ala. 463, is a late and well-considered case, holding that to present and aim an unloaded gun at a person within shooting distance, in such a manner as to terrify him, he not knowing that the gun is not loaded, will not support a conviction for a criminal assault, although it may support a civil action for damages. This case presents the leading authorities on both sides of this question and sums up the result reached by the court thus: "The true test cannot be the mere tendency of an act to produce a breach of the peace; for opprobrious language has this tendency, and no words, however violent or abusive, can at common law constitute an assault. It is unquestionably true that an apparent attempt to do corporeal injury to another may often justify the latter in promptly resorting to measures of self-defense. But this is not because such apparent attempt is itself a breach of the peace, for it may be an act entirely innocent. It is rather because the person who supposes himself to be assaulted had a right to act upon appearances, where they create reasonable grounds from which to apprehend imminent peril. There can be no difference in reason between presenting an unloaded gun at an antagonist in an affray, and presenting a walking cane as if to shoot, provided he honestly believes, and from the circumstances has reasonable grounds to believe, that the cane was a loaded gun. Each act is a mere menace, the one equally with the other, and mere menaces, whether by words or acts, without intent or ability to injure, are not punishable crimes, although they may often constitute sufficient ground for a civil action for damages. The test moreover in criminal cases cannot be the mere fact of unlawfully putting one in fear, or in creating alarm in the mind; for one may obviously be assaulted although in complete ignorance of the fact, and therefore entirely free from alarm. People v. Lilley, 43 Mich. 525. And one may be put in fear under pretense of begging, as in Taplin's Case, occurring during the riots in London, decided in 1780, and reported in 2 East. P. C. 712, and cited in many of the other old authorities." These views are sustained by State v. Napper, 6 Nev. 113; Regina v. James, 47 E. Č. L. 530: Blake v. Barnard, 38 id. 365; People v. Lilley, 43 Mich. 521; Robinson v. State, 31 Tex. 171; Lawson v. State, 30 Ala. 14; McKay v. State, 44 Tex. 43; 3 Greenl. Ev.. § 61; People v. Jacobs, 29 Cal. 579. Numerous other cases to the same effect are carefully collated in 1 American and English Cyclopædia Law,

and it can be said safely that it is not anywhere laid
down in the books that such act was even held at com-
mon law to be culpable negligence that would impose
legal liability for damages upon the vendor or donor
of such liquor. The present suit can in no sense be re-
garded as an action of tort at common law. Meidel v.
Anthis, 1 Ill. 241. The cause of action here is neces-
sarily purely statutory, and the question whether it is
a valid cause of action must depend upon the proper
construction of section 9 of the Dram-Shop Act. Sec-
tion 13 of article 4 of the Constitution of 1870 provides:
"No act hereafter passed shall embrace more than
one subject, and that shall be expressed in the title.
But if any subject shall be embraced in an act which
shall not be expressed in the title, such act shall be
void only as to so much thereof as shall not be so ex-
pressed." In the Revised Statutes of 1874 the title of
the act under consideration is "Dram-shops," and the
title of the act in full is: "An act to provide for the
licensing of and against the evils arising from the sale
of intoxicating liquors." If the intent and scope of
said sections 6 and 9 are as broad as the contention of
appellant claims they are, and include the acts of a
person who is not engaged, either directly or indi-
rectly, in selling intoxicating liquor, but who merely
gives at his private residence or elsewhere a drink or
two of wine, beer or other liquor, to a guest, friend or
neighbor, as a mere courtesy or act of politeness,
and without any consideration whatever, pecuniary or
otherwise, then it would seem such sections would, to
the extent they include such acts of such person, be in
violation of the constitutional provision we have cited
and void. The matters contained in said sections 6
and 9, and in section 13, even including the provisions
in respect to gifts of intoxicating liquor, if limited to
those who are in some way connected with the sale of
intoxicating liquor, legitimately appertain and are
germane to the subject expressed in the title of the
act, but in respect to mere gifts of liquor by persons
not connected directly or indirectly with the liquor
traffic, or with any sale of liquor, it cannot fairly be
said such gifts by them are embraced or expressed in
such title. But we do not think said sections, or
either of them, when properly interpreted, are in any
respect whatever invalid. The title of an act, and es-
pecially where there is a constitutional provision, such
as we have above mentioned, may very properly be
regarded in seeking to ascertain the legislative inten-
tion and the real meaning of such act. Both the gen-
eral title "Dram-Shops," and the title of the act itself,
indicate that the various provisions of the statute are
aimed at dram-shops, and at those who are engaged,
either lawfully or unlawfully, directly or indirectly,
in the liquor traffic. In Albrecht v. People, 78 Ill. 510,
it was held that the provisions of section 6 do not ap-
ply to a person who, at his private house, and as an act
of hospitality, gives a glass of beer to a visitor or friend
alleged to be intoxicated, and that such a case was not
one contemplated by said section. The decision in
the later case of Johnson v. People, 83 Ill. 431, did not,
as seems to be supposed, overrule the decision in the
Albrecht case. In the construction of a statute the
courts are not confined to the literal meaning of the
words in the statute, but the intention may be col-
lected from the necessity or objects of the act, and its
words may be enlarged or restricted, according to its
true intent. Castner v. Walrod, 83 Ill. 171. The
Dram-Shop Act now under consideration is a statute
of a highly penal character, and provides rights of ac-
tion unknown to the common law, and should, accord-
ing to well-understood canons, receive a strict con-
struction. Taylor v. Sprinkle, Breese, *1, 17; Picker-
ing v. Misner, 11 II. 597; Freese v. Tripp, 70 id. 496;
Meided v. Anthis, 71 id. 241; Albrecht v. People, 78
id. 510. Ill. Sup. Ct., Jan. 26, 1889. Cruse v. Aden.
Opinion by Baker, J.

Williams purchased the right, title and interest of
Harper in the personal property of Harper & Williams
affect the question now at issue. No particular arti-
cles of personal property were sold, and none were
mentioned. By that sale Williams acquired title only
to Harper's interest in the personal property of the
firm of Harper & Williams, and not to fixtures, and
even if he had, he would have made them fixtures
again by the use he made of them upon these premises.
Tested then by the rules of law thus established, it be-
comes necessary to determine which of the articles in
controversy are fixtures. This is not a difficult task.
The tools named in the eighth finding of fact, to-wit,
squares, hammers, saws, chisels, shovels, wrenches,
etc., are such tools as could be used anywhere in any
kind of business where such tools are used, and are
therefore not peculiarly necessary for this kind of busi-
ness. The same is true of the log chains mentioned
in the eighteenth finding of facts. These articles, in
the opinion of the master, do not fall within the rule,
and are not fixtures. The iron hoist mentioned in the
uinth finding of fact was clearly a fixture at the time
it was removed, but this was before the master's sale.
It must therefore be presumed that its value did not
enter into the purchase-money paid for the property,
and hence cannot be taken into consideration in this
case. The vise mentioned in the twelfth finding of
facts would have been a fixture if put upon these
premises by Williams or by Harper & Williams, but it
seems to have belonged to the firm of Brown & Wil-
liams, who had nothing to do with the quarry, and
who took it away again. With this vise or the value
thereof the defendant can therefore not be charged.
All the other articles in controversy, to-wit, two ta-
bles, the derrick boom, the trough and tub, the rail-
road iron, the steam pump, two slate-dressing ma-
chines, the wire rope and the marbleizing box clearly
came within the rule, and must be treated as fixtures.
As far as the pump, wire rope and derrick boom are
concerned, they not having been in use at the time of
the sale, it is only necessary to refer again to the case
of Voorhis v. Freeman, supru." Peun. Sup. Ct., Feb.
18, 1889. Appeal of Williams. Opinion per Curiam.

GIFT ADVANCEMENTS-TRUSTS. A., about three
years before his death, deposited sums of his own
money in a bank to the credit of each of four of his
children, making an entry on the signature book of
the bank in each case as follows: "B. (child's name).
A., Trustee." The account was opened on the bank's
books, and on a pass-book given to A., in the same
manner. He drew no part of the principal or interest
of three of said sums, but retained the books until his
death; telling each of the four children that the de-
posits were made for them, and that at his death the
money would be theirs. He never delivered the pass-
books to them, nor did he make any entry or charge
other than above stated. He made no deposits nor
any gifts of consequence to his other children. Held,
under the Public Statutes of Rhode Island, chapter
187, section 20, providing that if personalty be given to
a child and charged, or a memorandum made thereof
in writing by the intestate, or if delivered in the pres-
ence of two witnesses, who were desired to take no-
tice thereof, the same shall be deemed an advance-
ment, such deposits were not advancements. The case
stated seems to us to be identical in its material
features with the case of Ray v. Simmons, 11 R. I. 266,
unless it can be distinguished in point of principle
from the latter case, by reason of the difference in the
form in which the deposits were entered. In Ray v.
Simmons the form of entry was: "Dr. Fall River
Savings Bank, in account with Levi Bosworth, trustee
for Marianna Ray, Prov. Cr." The depositor received
a pass-book, in which the same form was used. He
banded this book to Miss Ray, who read the entry,

and thanked him for his present, but did not retain the book. The question came up in the settlement of his estate whether the deposit was a part of the estate, or should go to Marianna Ray, and the court held that it should go to her; being of the opinion that a trust for her in respect of the deposit had been completely constituted. The same view had been previously taken by the Supreme Court of Connecticut in Minor v. Rogers, 40 Conn. 512, though that fact was not known to this court when Ray v. Simmons was decided. And the decision in Ray v. Simmous has been followed in New York in Martin v. Funk, 75 N. Y. 134, in which case an elaborate opinion was delivered by Chief Justice Church. There are cases which hold otherwise, but it seems to us that the courts which decided them did not sufficiently distinguish between a gift, which requires a delivery of the thing given, actual or symbolical, and the creation of a voluntary trust, which requires for its conservation, not a delivery of the subject of the trust to the beneficiary, but a retention of it by the trustee for his benefit, and of course, where the donor makes himself the trustee, a retention of it by the donor, as trustee for his benefit. The question, then, is whether the case stated differs materially from Ray v. Simmons, owing to the different manner in which the deposit was entered. We do not think it does. We think it is plain that the intention of the depositor was not to give the deposits directly to the children severally named in them, but to give them, through the medium of as many trusts, wherein he, himself, should be the trustee for them; and, the deposits being deposits of money or personalty, we know of no techuical rule which prevents our construing them according to their essential character, as determined by the intention. Deposits in this form appear not to be uncommou in this State, and have been treated by this court in a previous case as deposits in trust. R. I. Sup. Ct., Jan. 26, 1889. Petition of Atkinson. Opinion by Durfee, C. J.

THE

COURT OF APPEALS DECISIONS.

HE following decisions were handed down Friday, June 28, 1889:

Judgment of General Term reversed and that of the Sessions affirmed, and proceedings remitted with directions to carry out the sentence-People, appellants. v. Eugene Sullivan.- -Order affirmed with costs on opinion of General Term-Robert Gere Burk, appellant, v. Horace Inman, respondent.-Order affirmed with costs (no opinion)—Supervisors of Suffolk County, respondents, v. City of Kingston, appellant.-Appeal dismissed with costs-Elizabeth D. Vail, respondent, v. William M. Reynolds, appellant.-Appeal dismissed (no opinion)—In the reapplication for issue of subpoena to Bache Whitlock.-Order of Special and General Term reversed and the assessment reinstated with costs in all courts to the defendants-People, ex rel. Fairfield Chemical Company, respondents, v. Michael Coleman and others, commissioners of taxes, etc., appellants.Appeal dismissed with costs-In re application of New York and Brooklyn Bridge Company, respondent, to acquire lands of John Grinnell and another, appellant.. -Appeals dismissed with costs in each appeal--People, ex rel. Betsey Ann Mason, appellant, v. Onondaga County Court and others, respondents. -Order affirmed on opinion of General Term-People, ex rel. Cornelia Johnsons, appellant, v. Elbert Hegeman, county treasurer, respondent.Appeal dismissed with costs-William Cole, executor of Prince, appellant, v. Charles E. Frost, executor, and another, respondents.- -Order affirmed with costsJames J. McComb, respondent, v. Cordova Apartment Association, impleaded. Appeal dismissed with