¶1The only question argued before us by the defendant is that of jurisdiction. It is contended that when an offence 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.
¶2If we assume that position to be correct, it does not meet this case. The offence charged in the indictment, upon which the defendant was found guilty, is that of receiving and aiding in the concealment of stolen property, under the Gen. Sts. a. 161, § 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 offence 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 offence punishable under the laws of the United States. The U. S. St. of 1864, e. 106, § 55, provides: “ That every president, director, cashier, teller, clerk, or agent of any association, who shall embezzle, abstract or wilfully 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 offences 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 offences of that slass against tho property of national banks.
¶3*6The 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 offence comes within the terms of the statute of the United States, and is punishable exclusively under it; and therefore that the accessorial offence of Barry cannot be punished at all. Commonwealth v. Felton, 101 Mass. 204.
¶4In 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 statutes of the state. There is no identity in the character of the two offences, 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. Commonwealth v. Hogan, 97 Mass. 122. Commonwealth v. Harrison, 11 Gray, 308. Commonwealth v. Shea, 14 Gray, 386. Commonwealth v. Carpenter, 100 Mass. 204. Morey v. Commonwealth, 108 Mass. 433. Exclusive jurisdiction of the one does not exclude jurisdiction of the other.
¶5Upon the facts stated it is clear that the offence 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 Mass. 548.
¶6In the second place the offence of receiving stolen property is a substantive crime in Itself, and not merely accessorial to the principal offence of larceny. In this respect the case is clearly distinguishable from that of Commonwealth v. Felton, supra.
¶7 Exceptions overruled.