Commonwealth v. Barry. the money into the vault, and locked the outside door of the vault, leaving the outside door of the inner safe standing open; I opened the outer door of the vault, the combination of which lock I had, and finding the outside door of the inner safe open, I took a screw driver and removed the brass box which held the number of the combination on that door, and in that way obtained a knowledge of the combination of that lock, which enabled me to unlock that door when locked while the combination was in use. There being an error in the books of the bank, the cashier and I remained in the bank that evening till half-past eight o'clock, at which time I placed the money in the safe and fastend the doors; the cashier and I then left the bank together, he going toward his home, and I then returned to the bank, unlocked the door, entered the bank, lighted a candle, and unlocked the doors of the safe and vault, using the same combination which existed at noon-time, and removed all the funds and money of the bank, wrapped them up in a paper and left the bank, locking all the doors, and proceeded with the money to my boarding-house. On Friday, October 20, 1871, I received notice from the cashier that I would be discharged from the employ of the bank on account of my irregular habits; on the evening of that day, at about nine o'clock, having made up my mind to take the funds of the bank, I met the defendant Barry in the streets of Great Barrington, and asked him to drive me to Pittsfield the next afternoon, as I wanted to take the nine o'clock P. M. train from Pittsfield to Albany, and agreed to give him $50 if he would get me there in time to do so; he seemed astonished at the offer; I told him if I chose I could take the funds of the bank, and I thought of doing so the next day; he asked me if I meant business, and I said yes; we then proceeded down the railroad track some distance, and I then disclosed to him my plans; this was the commencement of the defendant's knowing or having any thing to do in the transaction; after I had taken the funds of the bank to my boarding-house, and placed them in a satchel, I proceeded with the money from my boarding-house to Humphrey's Bridge, the place agreed upon for meeting Barry; I found Barry there without a conveyance of any kind, and we then concluded to walk to Van Deusenville, where I was to take the cars, and did so; I took from the satchel three packages of money, amounting in all to about $1,700, and delivered them to the defendant Barry, and took the train for Pittsfield; that was the last I saw of Barry." Commonwealth v. Barry. It was proved that Hine at January term, 1872, of the Supreme Court in Berkshire, had pleaded guilty to an indictment for larceny of $24,894 of the moneys of the said National Mahawie Bank from the building of said bank, and been sentenced thereon to the house of correction for two years. The government proved the organization of the National Mahawie Bank, under the laws of the United States, and in accordance with the provisions of the acts of Congress in relation to the organization of National banks contained in the U. S. Statutes 1864, chapter 106. The defendant asked the judge to rule that upon this evidence his offense was not within the jurisdiction of the court. The judge declined so to rule; the jury returned a verdict of guilty and the defendant alleged exceptions. J. M. Barber (E. M. Wood with him), for defendant. 1. The offense of the defendant was only cognizable by the courts of the United States. It appeared in evidence that Hine was the teller of the National Mahawie Bank, which was organized under the United States Statutes of 1864, chapter 106, and that while such teller, he abstracted, and took from the vault of the bank a large sum of money belonging to the bank, and converted it to his own use. This was an offense under section 55 of that act, and was punishable as a misdemeanor. There was evidence tending to show that the defendant aided and abetted Hine in taking said money and converting it to his own use, advising with him in regard to taking the money, and assisting him in carrying the same to Van Deusenville, and receiving and concealing a portion of the same. By so doing he committed an offense under the United States Statutes of 1869, chapter 145. The offense was only cognizable by the courts of the United States. The United States Statutes of 1789, chapter 20, section 11, provides that the Circuit Courts of the United States "shall have exclusive cognizance of all crimes and offenses cognizable under the authority of the United States, except where this act otherwise provides, or the laws of the United States shall otherwise direct." No law of the United States gives to the State courts cognizance of offenses under the United States Statute of 1864, chapter 106, or the United States Statutes of 1869, chapter 145. It therefore Commonwealth v. Barry. follows that the State courts have no jurisdiction of the offense committed by the defendant. Commonwealth v. Felton, 101 Mass. 204 (ante, p. 573); Prigg's Case, 16 Pet. 539, 617; Houston v. Moore, 5 Wheat. 1, 27; 1 Kent's Com. (12th ed.) 399; Commonwealth v. Fuller, 8 Metc. 313, 319; Commonwealth v. Tenney, 97 Mass. 50 (ante, p. 568). 2. The offense of Hine, as stated in his own testimony, was embezzlement, and not larceny. He was the teller of the bank; that is, the officer who receives and pays out its money; and, as he testifies, that upon that evening at half-past eight o'clock, he himself placed the moneys of the bank in the safe, inside the vault, and fastened the doors; as teller of the bank he could lawfully take its moneys from the safe and pay them to third persons, and his office of teller continued in the night time as well as during the day. This case is distinguishable from Commonwealth v. Davis, 104 Mass. 548, by the fact that in the latter case the defendant had no right to remove the goods, or to sell them, or had even the bare custody of them, being simply a clerk and packer in the employ of the owner of the goods. 3. It is entirely immaterial whether the crime of Hine was embezzlement or larceny. Whichever it was, all the acts which he did from the time when he took the money out of the vault, until he and the defendant parted at Van Deusenville, constituted an offense under the U. S. Stat. of 1864, chapter 106, section 55, and in doing all these acts he was, according to the testimony, aided and abetted by the defendant, who, in doing all that he did, committed an offense under the U. S. Statute of 1869, chapter 145, which offense was cognizable by the courts of the United States and only there. C. R. Train, Attorney-General, for the Commonwealth. WELLS, J. The only question argued before us by the defendant is that of jurisdiction. It is contended that when an offense is punishable both by the laws of a State and by those of the United States, the jurisdiction of the courts of the latter excludes that of the State courts, unless otherwise provided by the laws of the United States. If we assume that position to be correct, it does not meet this The offense charged in the indictment upon which the case. Commonwealth v. Barry. defendant was found guilty, is that of receiving and aiding in the concealment of stolen property, under the General Statutes, chapter 161, section 43. The count recites the previous larceny of the property, consisting of money, from the National Mahawie Bank, by William S. Hine. Both this and the principal offense of Hine, as set forth, are independent of any trust, and of any relation of either to the bank as officer, clerk or agent. But such relation and breach of trust are essential elements in the offense, punishable under the laws of the United States. The U. S. Statutes of 1864, chapter 106, section 55, provides: "That every president, director, cashier, teller, clerk, or agent of any association, who shall embezzle, abstract or willfully misapply any of the moneys, funds or credits of the association" shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be punished by imprisonment not less than five nor more than ten years. The two offenses are essentially different. The statute of the United States does not purport to punish larceny as such. The obvious inference is that Congress did not intend to interfere with the jurisdiction of State laws and State courts over offenses of that class against the property of National banks. The defendant contends that, as it appeared in evidence that Hine was in fact teller of the bank, and was enabled through that position to secure the means by which to "abstract" the funds from its vault, his offense comes within the terms of the statute of the United States, and is punishable exclusively under it; and therefore that the accessorial offense of Barry cannot be punished at all. Commonwealth v. Felton, 101 Mass. 204 (ante, p. 573). In our opinion, neither branch of this proposition can be maintained. In the first place, if the fact that Hine was teller of the bank subjects him to the punishment imposed for his breach of trust in that capacity, under the statute of the United States, it does not relieve him from his liability to punishment for the larceny at common law or under the statutes of the State. There is no identity in the character of the two offenses, although the same evidence may be relied upon to sustain the proof of each. An acquittal or conviction of either would be no bar to a prosecution for the other. Commonwealth v. Tenney, 97 Mass. 50 (ante, p. 568); Commonwealth v. Hogan, 97 Mass. 122; Commonwealth v. Harrison, 11 Gray, 308; Commonwealth v. Shea, 14 id. 386; Commonwealth v. Carpenter, 100 Mass. 204; Morey y. Commonwealth, 108 id. 433. Commonwealth v. Barry Exclusive jurisdiction of the one does not exclude jurisdiction of the other. Upon the facts stated it is clear that the offense of Hine was larceny and not embezzlement. Although as teller he was intrusted with funds of the bank while engaged in transacting its business, at night they were withdrawn from his possession and placed in such custody that he could not lawfully resume possession until the return of business hours and the concurrence of the cashier authorized him to do so. That custody was possession by the bank; and his wrongful violation of it made the taking of the funds larceny. Commonwealth v. Berry, 99 Mass. 428; Commonwealth v. Davis, 104 id. 548. In the second place the offense of receiving stolen property is a substantive crime in itself, and not merely accessorial to the principal offense of larceny. In this respect the case is clearly distinguishable from that of Commonwealth v. Felton, supra. In State v. Tuller, ante, p. 375, the Supreme Court of Connecticut held that while a State court has no jurisdiction of the offense of embezzlement by an officer of a National bank of the property of the bank, it has jurisdiction of the larceny or purloining by such officer of the property of others left with the bank for safe-keeping. This conclusion was based upon the argument that the exclusive Federal jurisdiction was limited to offenses arising out of the internal working of such banks-to offenses arising out of the relation between the officers, clerks and agents of the bank, and the bank itself; but that as to the offenses arising out of the business relations between the bank or its officers and agentsand its customers the state court had jurisdiction. Thus the court said: "It is theft by our law to steal from a National bank; it is burglary to break into one for the purpose of stealing; and it is cheating to obtain money from one by false pretenses. As a corporate being, located in the State, its property and interests and business are protected by state laws and subject to state legislation, and so it is competent for the legislature to protect its customers, the citizens of the State, in their business dealings with it, whatever they may be, whether constituting the relation of borrower and lender or of special or general depositor and bailee; and they may be controlled and protected by penal en Exceptions overruled. actments, without interference with the laws of Congress.' InCommonwealth v. Tenney,ante, p.568. the Supreme Judicial Court of Massachusetts held that a State court had jurisdiction of an indictment against an officer of a National bank for fraudulently converting to his own use the property of an individual deposited in the bank, under a state statute making such fraudulent conversion "larceny." This was on the ground that the offense charged had not been made punishable by act of Congress, as the 55th section of the National Banking Act only applied to embezzlement of the property of National banks. Again, in Commonwealth v. Felton, ante, p. 573, the same court held that a State court had no jurisdiction of the crime of embezzlement by an officer of a National bank of the funds of the bank since such offense is exactly covered by the act of Congress, and also that as Congress had made such offense a misdemeanor, only an accessory could not be punished under a state statute making the offense a felony. The foregoing case of Commonwealth v. Barry is in accordance with these decisions, holding that while a State court has not jurisdiction of the offense of embezzlement of the property of the bank by an officer thereof, it has jurisdiction of the offense of larceny of the property of the bank by |