
    Commonwealth vs. William S. King & another.
    Evidence which proves an embezzlement under the statute will not sustain a general charge of larceny at common law.
    In an indictment for receiving stolen goods, it is not necessary to state by whom the larceny was committed; but, if alleged to be by A. B., it must be so proved.
    If a servant appropriates to his own use bank bills, obtained by him at a bank, on a check drawn by his master, it is an embezzlement, and not a larceny.
    In an indictment against one for a larceny at common law, and against another for receiving the goods so stolen, if the evidence fails to prove the larceny by the former, the charge of receiving the stolen goods cannot be sustained against the latter.
    This was an indictment, containing two counts, one for larceny of bank bills, belonging to John S. Fowler, and the other for receiving the bills, knowing them to have been stolen. King, one of the defendants named in it, was tried in the municipal court of the city of Boston, before Perkins, J.; and Albion L. Mellen, the other defendant, pleaded guilty generally.
    There was evidence that Mellen, the other person named in the indictment, was in the employment of Fowler, as his clerk and servant, and was in the habit of receiving money on checks drawn by Fowler, for Fowler, and doing other Dusiness for Fowler, as he was directed; that, on the morning of the eighth day of December, 1851, Mellen received from Fowler a check on the North Bank, in Boston, for fourteen hundred and fifty-seven dollars, with directions to draw the same from the bank, and, with the money received, to take up certain notes of Fowler, then due and payable at other banks in Boston, the money being, at the time, on deposit at the North Bank, in Fowler’s name. Some time previous to the eighth day of December, 1851, Mellen and King, having a knowledge that the above check was to be drawn on that day by Fowler, and would come into the hands of Mellen, agreed that they would take the money which should be drawn thereon by Mellen, and appropriate it to their own use; but, on the day before the eighth day of December, in consequence of some fears and misgivings on the part of King, about carrying out some of the terms of the agreement, Mellen supposed that the agreement might not be carried out; and when, on the morning of the eighth, Mellen received the check from Fowler for fourteen hundred and fifty-seven dollars, he was not certain that he should meet King; and if he did not meet him, he expected that he should receive the money and apply it according to Fowler’s directions. But, while Mellen was on the way to the bank, with the cheek in his possession, King met him, and ascertained that he had the cheek in his possession, and they then proceeded to carry out their original agreement above stated. They went into the building where the bank was, and Mellen went into the bank, while King remained in another room of the building near by. Mellen drew the money and immediately joined King, and gave him four hundred dollars of the money; and they both went off to get the money each had received changed into the bills of other banks, for the purpose of preventing detection and securing the money. They secreted themselves in Boston for a time, and afterwards went to some other place, where they were arrested, and a part of the money found on each was secured.
    The defendant, King, contended that the jury had no right to find, on these facts, that a larceny had been committed by anybody, and so they could not convict the defendant on either of the counts in the indictment. But, there being evidence that when Mellen took the check, on the morning of December 8th, he had not the purpose of converting the money to his own use, and nothing to show the contrary, the judge ruled that, although Mellen might have received the .check without any positive intent, at the time, to appropriate the money to be received thereon to his own use, yet if, while he had the check in his hands, and was on his way to the bank, he met King, and the two then agreed that Mellen should use the check in pursuance of the previous agreement and combination, as a trick or contrivance to obtain the money of Fowler then in the bank, with the present purpose of appropriating it to his own use; and, thereupon, Mellen and King should feloniously appropriate the money so obtained to their own use, against the will and without the knowledge of Fowler; and Mellen, in pursuance of this agreement and understanding, did use the check as a contrivance for getting Fowler’s money out of the bank into his possession, with the above intent, and in the manner agreed, and did obtain Fowler’s money thereon, and King received the money in the manner charged and set forth in the second count of the indictment, the jury would be justified, all other facts necessary to constitute the larceny being proved, in finding, on these facts, that the money was taken by larceny, for the purpose of this indictment, in the second count thereof.
    The jury found the defendant, King, guilty of receiving four hundred dollars of the money charged to have been received in the second count of the indictment, in manner as set forth; whereupon he alleged exceptions to the above instructions.
    
      O. II. P. Green, for the defendant.
    Clifford, (attorney-general,) for the commonwealth.
   Dewey. J.

The indictment upon which the defendant was tried, charged the offence of the prisoner in two forms; first, as a joint larceny at common law, with one Albion L. Mellen; secondly, in a distinct count, a charge of larceny at common law, by Mellen, and that the defendant received and aided in the concealment of the property thus stolen by Mellen, knowing the same to have been stolen. The jury having acquitted the defendant on the first count, the only questions, therefore, now arise upon the conviction of the defendant upon the second count, as receiver of stolen goods. To authorize such conviction, the government must prove the material allegations in the indictment.

The first of these that is to.be considered, is the charge of a larceny at common law by Mellen. The government are confined to a larceny at common law, having, by the form of the indictment, thus limited themselves. Evidence tending to prove an embezzlement under the statute, would not sustain a general charge of larceny at common law, as was held by this court' in Commonwealth v. Simpson, 9 Met. 138. The two 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. It was not necessary to state in the indictment by whom the larceny was committed. Rex v. Jervis, 6 Car. & Payne, 156; but, if alleged to be by A. B., it must be so proved. Rex v. Woolford, 1 Mood. & Rob. 384.

To prove the larceny by Mellen, the government relied upon the facts stated in the bill of exceptions, as to the manner of his obtaining the bank bills ; and the inquiry is, do these facts show a larceny at common law ? If the goods are not in the actual or constructive possession of the master, at the time they were taken, the offence of the servant in taking them will be embezzlement, and not larceny. Therefore, when goods in the possession of a third person, and not yet delivered to the master, are delivered to the servant, who appropriates them to his own use, this is not a larceny, for, at the time of the receipt of the goods by the servant, in the case supposed, there was no possession in the master, without which there could be no trespass or larceny. Roscoe, Evi. 547; 2 East. P. C. 568.

But if A. gives a sum of money to his servant, to carry to B., and the servant converts the same, this may be larceny. Thus, in Rex v. Sullens, 1 Moody’s Cr. Cases, 129, where, upon an indictment for larceny, it appeared that the defendant, being sent by his master to get change for a £5 bank note, obtained silver for it, as he was directed, and subsequently absconded with the silver, it was held not to be larceny, because the silver had never been in possession of the master, except by the hands of the defendant. The principle of this and other English cases of like character shows, that the instruction to the jury, as given in the present case, cannot be sustained.

If the check had been originally obtained of the master by fi'aud, or subsequently appropriated to the use of the servant, it would only have authorized an indictment for larceny of the check itself. But the present indictment charges larceny of the bank bills obtained at the bank. Those bills had never been in the possession of the master, in any such sense as would authorize him to sue the servant in trespass for them. The bank bills delivered to the servant were not the bills of the master, while in the bank. They were the money of the bank, and, as such, were delivered to Mellen, the servant; and never came to the hands of the master, or were held by him. It is just the case that, under the authorities cited, constitutes embezzlement of the bank bills, as in Rex v. Walsh, Russ. & Ryan, 215.

Stating the principle to be that, when the goods have never been in the master’s possession, but have been delivered to the servant for the master’s use, and the servant, instead of delivering them, converts them to his own use, this is not a feloni ous conversion at common law. Wharton’s Grim. Law, 405, et seq. The cases, it is true, are not entirely uniform on this point, some of the earlier cases sanctioning the contrary doctrine, but the preponderance of authority is, that it is not a case of larceny. The error of the presiding judge was in assuming that the bank bills were held by the servant in the same manner, as to the possession of the master, as the cheek itself, which was not correct.

The government has failed, therefore, to establish such a larceny as was set forth in the indictment, and in reference to which the defendant was charged with concealing the property stolen.

Having elected to charge the offence in this manner, having based the charge against the defendant as being a receiver of goods stolen by Mellen, by a larceny at common law, it was open to the defendant to insist, that no such larceny was proved as was charged and was made the basis of the charge of receiving and concealing the bank bills by the defendant.

The result is, therefore, that the exceptions are sustained.

Verdict set aside, and a new trial ordered.  