This indictment is founded on Gen. Sts. c. 161, § 39, within the provisions of which, we have no doubt, national banks, created under the laws of the "United States, must be held to be included. The words “ incorporated bank ” are broad enough to embrace not only banks existing at the date of the passage of the act, but such as have been chartered since; and they are not limited to corporations created by the laws of Massachusetts, but likewise include such national banking corporations as are located within this Commonwealth, if the offence to be punished is here committed.
The further objection is made, that the courts of the United States are vested by the judiciary act of September 24, 1789, (U. S. St. 1789, c. 20, § 11) with exclusive cognizance of all crimes cognizable under the authority of the United States, except where it is otherwise provided by the acts of congress. But an examination of the statutes of the United States leads us to the conclusion that the offence charged in this indictment has not been made punishable by any act of congress. The enactments cited on behalf of the defendant punish the embezzlement of the property of national banks, but not of the property of individuals, deposited with and in the custody of such banks. U. S. St. 1863, c. 58, § 52. U. S. St. 1864, c. 106, § 55. As the federal courts have no criminal jurisdiction except that conferred by congress, no question can be made as to the constitutionality of state legislation punishing such frauds, until they have been made punishable by the federal laws. There is no view of the relative, or of the concurrent powers of the two governments, which affects the decision of the present case; for all courts and jurists agree that state sovereignty remains unabridged for the punishment of all crimes committed within the *57limits of a state, except so far as they have been brought within the sphere of federal jurisdiction by the penal laws of the United States. Commonwealth v. Fuller, 8 Met. 313. Commonwealth v. Peters, 12 Met. 387.
The objection that the First National Bank of Greenfield had not been duly organized as a corporation was not insisted upon at the argument, and, so far as we can judge from the evidence reported, appears to have no foundation.
The defendant pleaded in bar a former acquittal, which plea was overruled upon the demurrer of the government, and the correctness of that decision is before us for revision. An inspec tian of the record in the former case shows that it was a simple common law indictment for larceny of the same bonds, the felonious and fraudulent conversion of which is charged in the case at bar. The present indictment follows the words of the statute upon which it is framed, which describe the whole offence. This is ordinarily sufficient, and is not now objected to as defective. It does not allege whether the defendant was intrusted with the possession of the abstracted property or not, and by the express language of the section this is immaterial. The guilt and punishment of an officer of a bank, or a person employed in it, who fraudulently converts to his own use the property of any person deposited in the bank, is made the same, whether he was or was not entrusted with the custody thereof. In either case such’an act is “ to be deemed a larceny.” But this language does not make the act indictable as a larceny if it were not so before. It is a statute offence, and must be charged as such. Commonwealth v. Simpson, 9 Met. 138. Commonwealth v. King, 9 Cush. 384. Under the first indictment, the defendant might probably have been found guilty of a common law larceny, if he had not been intrusted with the possession of the. property. At all events, this may be assumed for the purposes of the present discussion. But proof that he was intrusted with the property would have defeated the first indictment. It does not appear whether the evidence at the trial of the present case showed that he was or was not intrusted with the custody of the property taken. If the ground on which a conviction was claimed was that of lar*58ceny, and it appeared that the property abstracted was not intrusted to the custody of the defendant, the record of a former acquittal might perhaps have been introduced as conclusive evidence in his favor. But it was not offered in evidence. And it is impossible to sustain a plea of autrefois acquit where, by a comparison of the two records, it appears that the two indictments are in point of law for distinct offences. 1 Stark. Crim. Pl. 322 el seq. Commonwealth v. Roby, 12 Pick. 496. Commonwealth v. Clair, 7 Allen, 525. In the present case the plea does not answer the indictment, but only one aspect of the evidence by which it may have been supported. The allegations constituting the statute offence may all be sustained by facts not amounting to larceny.
Consequently the plea is insufficient, because it does not appear that the defendant was by the former indictment put in jeopardy for the same offence. This would have been entirely apparent if the present indictment alleged that the defendant, being a person in the employment of the bank, and being intrusted with certain property, &c., had fraudulently converted it to his own use. It then would have been manifest that a larceny was not charged and the former acquittal was no defence. Such may have been the reason for the previous acquittal and for the present conviction, in which case both verdicts are right! But if at the last trial the government proceeded on a state of facts amounting to mere larceny, and consequently covered by the first indictment, the defendant’s only remedy was, as we have already stated, to introduce the former record in evidence. The peculiarity of the present case arises from the circumstance that the statute has been so framed that an indictment under it may be maintained upon either of two states of facts. We are satisfied that this provision was intentional, and designed by the legislature to prevent the escape of the guilty employee in a bank upon a doubt whether he ought to be convicted of larceny or embezzlement.
With reference to the fraudulent and felonious character of the acts proved, and their sufficiency to warrant a conviction we entertain io doubt. To take from their place of deposit the *59bonds of a depositor, and send them out of the state to be used as collateral security for the defendant’s own debt, was a fraudulent conversion. Intention to restore the bonds, and the agreement of the party who received them not to sell or dispose of them, cannot do away with the criminal nature of the transaction. A guilty intent is necessarily inferred from the voluntary commission of such an act, the inevitable effect of which is to deprive the true owner of bis property and appropriate it to the defendant’s own use. Perhaps in a majority of cases the party who violates his trust in such a manner does not expect or intend that ultimate loss shall fall upon the person whose property he takes and misuses. But no hope or expectation of replacing the funds abstracted can be admitted as an excuse before the law. The forger who means to take up the forged paper, the thief who contemplates making eventual restitution, and the man who embezzles money or bonds with the design of restoring them, all fall under like condemnation in courts of justice and wherever the rules of sound morality are respected.
Exceptions overruled.