This indictment is not bad foi duplicity, as charging the two offences of larceny and embezzlement in the same count. The term “ embezzle ” is introduced into the count, but not in any such manner as to give to the count the character of a charge of embezzlement. It is without any ol those technical allegations essential to a charge of embezzlement ; and the indictment being perfect without it, as a charge of larceny, the word “ embezzle ” may well be stricken out as surplusage.
The further inquiry then is, whether upon this indictment, thus expurgated of every thing indicative of a charge of embezzlement at common law, the defendant may be convicted upon proof that he embezzled the articles charged to have been feloniously stolen. If he can be thus found guilty, and properly be punished under this indictment, it must be under the authority of the Rev. Sts. c. 126, $ 30, enacting that persons guilty of the embezzlement therein described “ shall be deemed, by so doing, to have committed the crime of simple larceny.”
It is quite obvious that, whatever the effect of this statute may be in cases of indictments for simple larceny, it cannot avail the government in the present instance, as the statute only declares that certain acts of embezzlement shall be deemed to oe simple larceny. But this indictment charges an aggravated larceny — a larceny in a vessel; and the conviction will be, if judgment be rendered upon the verdict, a conviction of such aggravated larceny. For this reason, therefore, independently *142of the more general objection, evidence of mere embezzlement, by the defendant, was not sufficient to authorize the jury to find the defendant guilty of the offence charged in this indictment.
We have, however, at the request of counsel, and with reference to further proceedings in this case, considered the general question, whether an indictment for simple larceny is an appropriate and legal form for charging a case of embezzlement under the Rev. Sts. c. 126, § 30. The statute in terms says, that the person doing certain acts “ shall be deemed, by so doing, to have committed the crime of simple larceny.” Treating this statute as one defining the offence of larceny, and, under the legislative authority, embracing within it a larger range of offences, to be hereafter known and recognized as larcenies, it would well authorize all of-fences described in it to be charged as larcenies, relying upon the statute as an authority for the position, that the cases may be punished as larcenies. But we do not feel authorized to give so broad a construction to this statute, and one which would entirely merge the crime of embezzlement in that ot larceny. The general object of the various statutes in relation to embezzlement, in England and in this Commonwealth, doubtless was, to embrace, as criminal offences punishable by law, certain cases where, although the moral guilt was quite as great as in larceny, yet the technical objection, arising from the fact of a possession lawfully acquired by the party, screened him from punishment. They were therefore declared crimes punishable by law.
The purposes of this statute may, as it seems to us, be sufficiently attained, without any infringement of those rules of criminal pleading which require the charge to be particularly and certainly set forth. The defendant should, as far as is reasonably practicable, be apprised, by the indictment, of the precise nature of the charge made against him. This, in embezzlement, so far as respects the nature of the offence or character of the crime charged, may be easily indu ated by setting forth the fiduciary relation, or the capacity in which the *143defendant acted, and by means of which the property came into his possession, and by charging the fraudulent conversion. Such seems to have been the practice under the English Sts. 21 Hen. 8, c. 7, 39 Geo. 3, c. 85, and 52 Geo. 3, c. 63. See the forms of indictment, in 3 Chit. Crim. Law, (4th Amer. ed.) 961, seq. Archb. Crim. Pl. (1st ed.) 156.
The court are of opinion that the two offences of larceny and embezzlement are so far distinct in their character, that under an indictment charging merely a larceny, evidence of embezzlement is not sufficient to authorize a conviction; and that, in cases of embezzlement, the proper mode is, notwithstanding the statute to which we have referred, to allege sufficient matter in the indictment to apprise the defendant that the charge is for embezzlement. Although the party, in the language of the statute, “ shall be deemed to have committed the crime of simple larceny,” yet it is a larceny of a peculiar character, and must be set forth in its distinctive character.
New trial ordered.