In this case it is impossible to avoid the granting of a new trial. The judge erred in rejecting the question “whether the defendant kept liquor in his grocery to sell.” The offence of selling spirituous liquors in violation of the excise laws may be established by circumstam tial evidence, and the fact offered to be proved and rejected, was competent in that aspect of the case. The like kind of evidence is constantly received upon trials, even for capital off fences. The very point has, however, been decided in the case of Hulbert v. The People. The decision was pronounced in January, 1846, and is not reported. I have, however, perused the opinion of the late Chief Justice Bronson, and it adjudicates the very question presented in this cause for our determination. There must be a new trial, with costs to abide the event. And whatever questions arise out of the repeal of the act of 1845, must be settled in another place; they cannot be disposed of on this motion.
New trial granted.