The courts have been frequently required to construe the statutes relating to embezzlement for the purpose of determining who is an agent, clerk, servant, bailee, public officer, and the like.

The term "agent" includes anyone who in a distinct capacity is authorized to represent another,87 but it does not include a receiver.88 Nor is a person engaged in making collections on commission as an independent business, an agent within the meaning of the statute relating to embezzlement; but otherwise, if he is collecting merely for his employer, not as an independent business.89 An ordinary agent is not included in the statute which enumerates bankers, brokers, attorneys, or other agents fraudulently converting to their own use the money or property of another.90 A person who is authorized to take orders for goods for his principal when and where he pleases, and to collect the money for the sales made by him within three months, is not a "clerk or servant."91

The mode of compensation, whether by commission or otherwise, does not determine whether one is a clerk or servant. It depends upon the nature of the employment.92 The employment referred to in the statute must be the regular employment as agent, clerk or servant. A mere casual employment, as one doing errands, is not sufficient.93

A township treasurer of school funds is a "public officer."94 Clerks and servants of public officers are not within the terms of the statute against public officers.95 The treasurer of a state university is a public officer and liable under the statute relating to embezzlement.96 A deputy of a state treasurer is a public officer.97 Clerks and assistants of the treasurer under the federal law are public officers.98 A director of a national bank is an officer thereof.99

87 People vs. Treadwell, 69 Cal., 236; Hughes Cr. Law, Sec. 508; 10 Am. & Eng. Ency. Law, 998 (2nd Ed.).

88 State vs. Kubbard, 58 Kan., 797.

89 Stone vs. Com., 20 Ky. L., 488; People vs. Hanaw, 107 Mich., 337; Campbell vs. State, 35 Ohio St., 70.

90 Reg. vs. Portagal, L. R., 16

Q. B. D., 487.

91 Hughes Cr. Law, Sec. 513;

Reg. vs. Matle, 11 Cox, C. C, 150. 92 Reg. vs. Hall, 13 Cox, C. C, 49.

93 Hughes Cr. Law, Sec. 512.

94 Johnson vs. People, 123 ID., 625;

Hughes Cr. Law, Sec. 518.

Cashiers and tellers of national banks also are officers of the bank.100 An officer de facto is punishable the same as one de jure.101