Showalter

Defendant, who was a receiver appointed by the trial court, was indicted by the grand jury on six separate counts for the commission by him of the “crime of embezzling public moneys, in violation of section 424 of the Penal Code”. A detimrrer to the indictment was sustained and the action “dismissed” by order of the trial court. The plaintiff has appealed “from a judgment for the defendant on the demurrer and the order of dismissal”.

The pertinent portion of section 424 of the Penal Code, under the provisions of which defendant was indicted, is as follows:

It is thus apparent that in a determination of the correctness of the judgment from which the appeal is taken, the questions which may be considered include, first, whether within the intent of section 424 of the Penal Code, a receiver appointed by the court in a civil action is an officer; and, if so, whether the moneys held by such person as such receiver are “public moneys”.

In effect, it is urged by appellant that since by the authorities generally, a receiver is an officer of the court, it necessarily follows that, in its nature, his position complies with the well-recognized requirement that to constitute one an officer…