dissenting:
As I do not concur in the result arrived at by my brethren in this case, I proceed to give my reasons for dissent upon such points as appear to me necessary to the decision.
I agree entirely with the opinion expressed, that, inasmuch as the only evidence offered below was given to prove a sale of foreign liquors, there was no room for any question about domestic liquors, and that the refusal of the circuit judge to charge that recovery for the price of domestic wines can not be had, was immaterial; and its incorrectness was, therefore, no ground of exception. I also agree that foreign wine does not differ, in its character under the statute, from other foreign liquors.
I deem it therefore unnecessary to decide whether upon proof of the sale of wine, ale or cider in this state, with*398out further testimony as to its origin, the burden of proof is thrown on the defendant in an indictment, or the plaintiff in an action for goods sold. The case of Patón v. Goit decided that where a note is given upon an illegal sale, proof of the illegal consideration threw upon the holder of the note the burden of proving himself a bona fide holder. The illegality of the sale was not discussed, but taken for granted by counsel. As whisky of domestic manufacture is absolutely prohibited in all cases, and as foreign whisky is only exempt under certain circumstances, I (admit the correctness of the assumption in that case. But, as I conceive there may possibly be a difference in the case of such liquors as are permitted to be sold when of domestic manufacture, I shall reserve my opinion upon that special class. As the liquors here were shown to be foreign — as far as the proof goes — the case must fairly stand upon that hypothesis. The plaintiffs’ testimony was all put in to establish their foreign, character. As foreign liquors, there is no doubt, in my mind, of the duty of the plaintiffs to show they were within the saving clause applicable to imported liquors.
This was sought to be' proved, partly by the testimony of a witness (which was admitted, and upon which no question is therefore made), and partly by the admissions of the defendant Rhodes. The ruling of the court below excluded all proof by admission, either that the liquors were foreign (which, however, was not in question here), that they were in the original package, or that they were imported under and in accordance with the laws of the United States. This ruling was upon the ground, which is maintained by my brother Christiancy, that admissions are not within the range of direct or positive evidence, but fall within the class of circumstantial or presumptive proofs.
I think this ruling was wrong. How much value should be given to admissions is not a question to be considered *399here. The jury will, in each case, give them as much or as little weight as they deem them entitled to receive. It is admitted by every one that the question before us is not how much proof is needed, but only what kind of proof is to be let in. And, allowing the right of the jury to give the evidence offered just so much value as it may be worth in their opinion, I have been able to find no good reason for its entire exclusion.
The design of the twentieth section of the Liquor Law was, I agree, to avoid any interference with lawfully imported liquors, so long as they remain in the original package. But I do not perceive, in the language of that section, anything to show that the Legislature intended to occupy any doubtful ground. On the contrary, I think that (so far as imported liquors are concerned) they designed to interfere with no right which could fairly be claimed, either of property or evidence of property, and that the references in the section clearly prove this. As they have a bearing upon what is meant by positive proof, I will briefly refer to them.
By the Customs Act, of 1ÍÍ99 (1 Stat. U. S. 658-9) all casks, chests, vessels and cases of spirits, wines and teas, are required to be branded or otherwise durably marked by the government officers, with certain marks therein prescribed. It was made the further duty of these officers to give corresponding certificates of the whole invoice, to be held by the importer, and a separate certificate for each parcel to acccompany such parcel wherever it should be sent, within the limits of the United States, “as evidence that the same have leen lawfully imported” (Secs. 40 and 41). This provision requiring separate certificates for wines, has been repealed, but remains in force as to the other articles. By section 43, the omission to deliver these certificates to purchasers, is made punishable by a penalty of fifty dollars for each omission. And by the next section a double penalty is imposed for *400selling or removing any package which, has been emptied, without surrendering the certificate, and having the marks obliterated by the authorities.
These are very clearly the marks and certificates referred to in § 20 of the Liquor Law, and it seems to me that it very plainly recognizes them and their validity for all purposes not excepted. The exceptions are that they shall not be received as evidence to show that the liquors now in the casks are the same which were there when the package was imported. This is a matter in which a fraud might be committed by filling the empty barrels, after leaving the custom house. But the identity of the packages themselves, and the legality of their importation, are provable, by the marks and certificates, under the United States laws, which must in any event govern, and which are not, I [think, sought to be infringed by this statute — and could not be.
These are unquestionably, I think, positive proof within the act, so far as they go, unless they are entirely excluded. And yet the certificate is but in the nature of a receipt or declaration, and the marks on the casks are but circumstantial proof, made admissable and applicable only by their correspondence with those in the certificate, and by the presumption that no one would counterfeit them, because such counterfeiting is punishable. Nor do I perceive by what process, except what my brethren deem circumstantial evidence, even the identity of the liquor could be proved. Proof of the condition of the cask being externally and apparently unchanged would be cogent and irresistible evidence, but it rests nevertheless upon presumption, although it is a sound and clear one. The purchaser can not take the cask from the custom house, and follow it in all its wanderings, without sometimes leaving it, and sometimes sleeping; and when it is traced from hand to hand, the final presumption that it is identical, is based upon a long and numerous train of circumstances *401alone. We are not to suppose the law requires an impossibility, or means a dishonest evasion; but it does both unless the evidence I have referred to is positive proof within the statute. Although it is in the hig-hest degree improbable that a vessel has been tampered with, which has been watched with great diligence, yet it would be going too far to claim that it is physically impossible. And if this evidence is not “positive proof” within the ordinary sense as used by text writers, then I have no hesitation in saying that, in my judgment, the statute does not refer to that technical use of the term.
But when we come to examine into the real meaning of the text writers, I can draw no conclusion from them which would exclude an admission of the main and precise fact in issue, or any portion of it, from the character of^direct or positive testimony. And I think a few instances will show this. The admission is called circumstantial evidence because the witness who swears does not testify to the importation, but merely that the admission was made, and that the proof therefor comes not from 'the witness’ knowledge of a fact in issue, but of another fact by which a fact in issue is proved. Upon the same ground a receipt proved is merely circumstantial evidence, because a witness merely swears to' its execution. The transcript, whether sworn or certified, of a recorded deed or judgment, is circumstantial, because the fact sworn or certified is, that it is a true copy of a valid original in the one case, and a copy of another copy of an original in the other. The deed is recorded, and the transcript is but a copy of that copy.
Instances might be multiplied without number. The proof of handwriting of an original deed by any one but a subscribing witness would be entirely circumstantial, on the same hypothesis, if the witness proves it by Ms knowledge of handwriting, and not by having seen the signature affixed.
I think it will be difficult to realize that such evidence as I have referred to, when offered to prove a payment, *402a conveyance, a judgment, or a promissory note, is not direct-proof.
The difference between direct and circumstantial evidence is laid down by Mr. Wills to consist in this, namely, that by direct evidence is intended evidence which applies directly to the fact which forms the subject of inquiry, the factum probandum; circumstantial evidence is equally direct in its nature, but, as its name imports, it is direct evidence of a minor fact, or facts, incidental to, or usually connected with, some other fact as its accident, and from which such fact is therefore inferred.— Wills, pp. 15, 16. And Mr. Greenleaf, in section thirteen, refers the proof derived from circumstantial evidence primarily, as in direct evidence, to the veracity of the witness, which is presumptive, and secondarily to the experienced connection between the collateral facts which he proves, and the fact which is in controversy. Other writers use similar language, and there is no important' difference on this question, so far as de - finitions go. But the real question is, whether the directness or indirectness of the evidence depends on the fact Whether the witness was, or was not, an eye-witness himself of the main factum probandum.
I do not conceive how this can be the true test. All evidence is required to be y^tinent to the issue, and must either bear directly upon it, or form a link in a chain of facts which may authorize a jury to infer it. In determining the admissibility of any proof, it must be determined by this tendency. When a witness is asked a question, the immediate inquiry arises, what part of the issue does this tend to prove? If he testifies that he saw a murder, his evidence is directed to the main issue. If he testify that he sold the prisoner a peculiar weapon, that is a circumstance which is material if such a weapon produced the fatal injury, and has a legitimate collateral bearing upon the main issue. It is therefore admissible as circumstantial proof, upon the ground that the possession of *403a sword, where a sword out has been inflicted, is (to use the language of Mr. Wills, above quoted) a minor fact incidental to, or usually connected with, a sword cut as its accident, and from which a possible connection may be in. ferred, which is made probable by other facts.
But suppose the witness, instead of seeing the murder, or selling the sword, swears that the prisoner admitted that he did the murder, or that he owned the weapon. The fact that an admission had been made, is not a natural incident to the offense in either case. Proving or disproving it to have been made, making it, or not making it, could form no possible part of the offense. It is not the fact that an admission of some kind has been made, but the pertinency of the thing admitted, which determines its relation to the issue. It is whether it goes to the main issue, or to a collateral circumstance, which determines its character as direct or circumstantial evidence, whether sworn to by a witness from knowledge, or from admissions. When a witness swears to the handwriting of a receipt, we call it proving payment, and not proving a presumption. When a transcript is introduced, it proves the judgment, and not the mere clerical act of transcription. — See Hogan v. Sherman, 5 Mich. 60.
This is evidently the view of Mr. Wills. He professes to deal with every species of circumstantial evidence, and, as a part of it, he has a very full section devoted to '■'■indirect confessional evidence,” which he commences by declaring that the subject of direct confession does not fall within the province of his essay. And he adverts to some of the principal rules which govern the one, to explain more fully those relating to the other. — p. 60, eí seq. Mr. Burrill adopts, in his text, the rule laid down by Bentham and Best, that “full confessions of guilt, by an accused party, are in the nature of direct evidence, and do not properly fall within the scope of a work on circumstantial evidence.”^ — Burrill’s Cir. Ev. 495. *404And, in criticising Mr. Starkie’s statement that it is presumptive, because depending on the presumption of veracity, he says with force, “But it seems to be in no other sense presumptive, than all direct evidence, which, as has been shown, rests upon the analagous general presumption that the witness who delivers it speaks the truth.— P. 495 n. (b).
I do not think that Mr. Greenleaf expresses any contrary view. He declares deliberate confessions to be among the most effectual proofs in the law {sec. 215); and had he regarded them as coming within the range of presumptions of fact, he would hardly have omitted to say so. In section forty-four’, he uses very different language concerning the grounds of such presumptions. And if, as he remarks in section one hundred and sixty-nine, admissions and confessions are properly substitutes for legal proof, they surely belong, so far as directness or indirectness may be concerned, to the class filled by that in place of which they are made to stand.
These admissions, which were rejected, were offered to establish the main issue, and not a collateral fact. I think they should not have been excluded. If sought to be excluded on any other ground than the supposed distinction of not being in the nature of direct evidence, no such other ground can exist, except it be that they are not of sufficient weight to establish a case. I am not aware of any rule of law which can exclude testimony from the jury because the court thinks it too weak. Its weight, if admissible, is a question of fact, and not of law. But in holding that admissions fall within the class of positive or direct testimony, as recognized by the writers, I do not wish to be understood as conceding that the term “positive proof” has, or was intended to have, under the statute, a technical meaning. This is the first case, so far as I am aware, in which the admissibility of testimony has been made to depend on its quality of directness. So long as presumptive evidence is equally admis*405sible with direct (as it is in all cases, unless this is an exception), text writers commit no dangerous error by not drawing accurate lines of distinction. But when the rights of parties are to depend on the correctness of definitions, which have never before been fixed by authority, because never material, I am not prepared to hold that any rule of distinction, even if universally adopted by text writers, for convenience, or from taste, should be received as of binding efficacy. The reasoning of elementary writers may be worthy of respect, but they can not make the law. And I am very strongly inclined to believe that when the question becomes material, if that should ever happen, courts will not exclude evidence ‘as not positive, which has a necessary bearing upon the issue. At all events, I am not prepared to lay down any such rule until there is very decided authority, as well as opinion, for it. Presumptions of some kind belong to all testimony, as long as there is any difference between moral and mathematical certainty.
Judgment affirmed.