The bill of exceptions states that this indictment was found under Gen. Sts. c. 161, § 41. It seems to be a good indictment under that section, or under § 35 of the same chapter. Commonwealth v. Concannon, 5 Allen, 506. Commonwealth v. Williams, 3 Gray, 461. But the more important question is, whether, upon the facts reported, an indictment can be sustained for the crime of embezzlement. The statutes creating that crime were all devised for the purpose of punishing the fraudulent and felonious appropriation of property which had been intrusted to the person, by whom it was converted to his own use, in such a manner that the possession of the owner was not violated, so that he could not be convicted of larceny for appropriating it. Proof of embezzlement will not sustain a charge of larceny. Commonwealth v. Simpson, 9 Met. 138. Commonwealth v. King, 9 Cush. 284. In the case last cited, it is said by Mr. Justice Dewey that “ the offences are by us considered so far distinct as to require them to be charged in such terms as will indicate the precise offence intended to be charged.” “ If tne goods are not in the actual or constructive possession of the master, at the time they are taken, the offence of the servant will be embezzlement, and not larceny.” We see no reason why the converse of the proposition is not true, that, if the property is in the actual or constructive possession of the master at the time it is taken, the offence will be larceny, and not embez *430zlement. And it has been so held in England. Where the prisoner was the clerk of A., and received money from the hands of another clerk of A. to pay for an advertisement, and kept part of the money, falsely represehting that the advertisement bad cost more than it had; it was held that this was larceny and not embezzlement, because A. had had possession of the money by the hands of the other clerk. Rex v. Murray, 1 Mood. 276; S. C. 5 C. & P. 145. The distinction is between custody and possession. A servant who receives from his master goods or money to use for a specific purpose has the custody of them, but the possession remains in the master.
The St. 14 & 15 Vict. c. 100, § 13, provided that whenever, on the trial of an indictment for embezzlement, it should be proved that the taking amounted to larceny, there should not be an acquittal, but a conviction might be had for larceny. We have no similar statute in this Commonwealth.
In the present case, the defendant, who was employed as a servant, was directed by one member of the firm who employed him to take a sum of money from him to another member of the firm. He had the custody of the money, but not any legal or separate possession of it. The possession remained in his master. His fraudulent and felonious appropriation of it was therefore larceny, and not embezzlement. Commonwealth v. O’Malley, 97 Mass. 584. Commonwealth v. Hays, 14 Gray, 62. People v. Call, 1 Denio, 120. United States v. Clew, 4 Wash. C. C. 702.
In People v. Hennessey, 15 Wend. 147, cited for the Commonwealth, the money embezzled by the defendant had never come into the possession of his master. And in People v. Dalton, 15 Wend. 581, the possession of the defendant was that of a bailee.
Exceptions sustained.