¶1The statute provides for the punishment of one who embezzles property delivered to him, which may be the subject of larceny. Gen. Sts. c. 161, § 35.
¶2The defendant is here charged with embezzling a savings bank book. He moved to quash the indictment, because the possession of the bank book at the time of its embezzlement was not sufficiently alleged to have been in him. In order to convict the defendant of the crime charged, it was necessary to prove that the possession of the property as distinguished from its mere custody was in him. If the actual or constructive possession was in the owner, then the wrongful conversion would be larceny, and not embezzlement. The two offences are distinct, and must be charged in such terms as will indicate the precise offence intended to be charged. Commonwealth v. King, 9 Cush. 284. Commonwealth v. O’Malley, 97 Mass. 584. Commonwealth v. Berry, 99 Mass. 428.
¶3This indictment sufficiently alleges the crime of embezzlement. As to the possession of the property, it alleges that the book was delivered to the defendant by the owner, in the trust and confidence, and with the direction, that the defendant should thereby receive only the custody of it, and should hold it until demanded by the owner, and should then deliver up and return it to him. Taken together, this implies that the actual and legal possession was parted with by the owner, and vested in the defendant, who became a bailee of the property for safe keeping, to be delivered back to the owner when demanded. The limitation that the defendant should thereby receive only the custody of it was intended to exclude the inference that the defendant took any interest in the property, except as a naked bailee. The chief allegation is that the defendant embezzled property delivered to him by the owner in trust and confidence, which was *22to be delivered back when demanded, and this allegation of possession in the defendant is not controlled bx the limitation above stated. Exceptions overruled.