The opinion
Morton, J.
The instructions of the court that “ upon the undisputed evidence in the case Brown did not sustain such a relation to the property in question as would make his felonious appropriation of it an act of embezzlement, but that his taking of the same, if the jury found the other elements necessary to constitute the offence, would be larceny,” were correct. Brown was a mere servant of the owners of the property alleged to be stolen by him. We cannot see in the case any testimony which tends to show that he had even the bare custody of the goods, much less the legal possession. They were in the possession and custody of the owners, and the felonious taking and appropriation of them by Brown was clearly larceny and not embezzlement. Upon the facts in this ease an indictment against him for embezzlement could not be sustained. Commonwealth v. Berry, 99 Mass. 428 . Exceptions overruled.