I concur in the judgment, and, in the main, with what is said by Mr. Justice Craig; but upon the question of estoppel I wish to add the following:
To determine whether the doctrine of estoppel can be invoked by the People in support of the issue respecting the corporate existence of the Southern Oregon Oil and Gas Company, it should first be ascertained, if possible, what is the underlying principle which has induced the courts to sanction the application of that doctrine in criminal cases. Unless we can discover the fundamental reason upon which rests the doctrine of estoppel in criminal cases we are without chart to guide or compass to locate the boundary which separates the cases where that doctrine is properly applicable from those where it is not. In none of the decisions brought to my attention was any attempt made to set forth the philosophical basis or rationale of the rule which sanctions the application of the doctrine of estoppel in criminal prosecutions. In many of the decisions the courts, without attempting to probe to the bottom in search for the reason upon which the rule rests, have given unquestioning assent to a dictum of Mr. Bishop, and have let it go at that. See Exparte Hedley, 31 Cal. 113, for the language of Bishop.
An analysis of the criminal actions in which estoppel has been held to be applicable discloses that, as between the prosecuting witness and the accused, the former was vested with some sort of private right; that this right was the result of acts of estoppel on the part of the defendant; and that violence had been done to that right by the criminal act which the accused committed against the peace and dignity of the state — his act of criminality being at once both an injury to the wronged individual, furnishing the basis for a civil liability, and an injury to the public, for which a penal liability attached.
Almost all of the criminal actions in which the doctrine of estoppel has been held applicable are cases of embezzlement. In that class of cases it has been held that in prosecutions against an agent or servant for embezzling the money or property of his principal or employer, if the accused has received the money or other thing of value in the assumed exercise of authority as such agent or servant, he is estopped to deny the authority when prosecuted for the embezzlement. *Page 483 (Ex parte Hedley, supra; People v. Treadwell, 69 Cal. 226 [10 P. 502]; People v. Gallagher, 100 Cal. 471 [35 P. 80];People v. Leonard, 106 Cal. 302 [39 P. 617].) It also has been held in embezzlement cases that an agent who has treated his principal as the owner of the property is estopped to deny the latter's ownership (State v. Whitworth, 30 Wn. 47 [70 P. 254]); also that one entrusted with money or other thing of value is estopped to claim that his principal obtained it illegally, or that he could not lawfully possess it under the statute. (People v. Royce, 106 Cal. 173, 186, 187 [37 P. 630, 39 P. 524]. See Sebree v. Commonwealth, 190 Ky. 164 [227 S.W. 152], and cases there cited.) It seems clear that in each of these classes of cases the act of estoppel related only to the private right of a private individual, usually the complaining witness. Take, for example, those embezzlement prosecutions in which it is held that an agent who has treated his principal as the owner of the property is estopped to deny the latter's ownership or his lawful right of possession: It is manifest that in that class of cases the principal has a private right of property which he could successfully assert in any civil action which might be brought by him against his unfaithful agent. The same is true of that other class of cases where it is held that the accused is estopped to deny that he received the money or property in the course of his employment if he received it in the assumed exercise of authority as an employee or agent of the prosecuting witness. In that class of cases the complaining witness has a valuable private right based on the acts of estoppel of the one assuming to exercise the authority. That is to say, in any civil action brought by him he would have the right to claim, as against the one assuming to act as his agent or employee, that the latter received the money or thing of value in the due course of his employment, and that, therefore, the self-assumed agent or employee is responsible to him for all the legal consequences which naturally flow from such assumption of authority. "The word `rights' is generic, common, embracingwhatever may be lawfully claimed. (Lonas v. State, 50 Tenn. (3 Heisk.) 306.) (Italics mine.) In White v. Commissioners ofMultnomah, 13 Or. 317 [57 Am. Rep. 20, 10 P. 484], it is said that "a `right' has been defined by Mr. Justice Holmes to be the legal consequence which attaches to certain facts." Under *Page 484 these definitions it is clear that in all the cases mentioned by me as examples of the applicability of the doctrine of estoppel in criminal prosecutions, the complaining witness was vested with some sort of a private right arising out of the acts of estoppel, and that this right had been violated by the criminal act committed by the accused.
It cannot be that estoppel is invokable by the People as the direct or primary beneficiary thereof. It is a fundamental principle of estoppel that it operates only between parties to the transaction and their privies. A stranger, who is not a party nor a privy, can neither be bound nor aided. (21 C.J., p. 1180; 2 Pomeroy's Equity Jurisprudence, 4th ed., sec. 813. See Figg v.Handley, 52 Cal. 244.) In the classes of criminal prosecutions where acts of estoppel may be proved against the defendant, such, for example, as the embezzlement cases cited supra, the state, proceeding in its sovereign capacity to punish for an infraction of its criminal laws, is a total stranger to the transaction out of which the estoppel arose. The acts of estoppel did not directly affect any public right, i.e., any right of the sovereign state as distinguished from the private right of the complaining witness, who, by reason of the acts of estoppel, could lawfully claim, in any civil action which he might bring, that certain legal consequences flowed from the estoppel. Nor could it be said in any of those cases that the state was in privity with the complaining witness whose private right attached by reason of the acts of estoppel. A crime has been defined as "a public wrong in that it affects public rights and is an injury to the whole community, considered as a community, in its social aggregate capacity." (16 C.J., p. 54.) It is an act committed against the public and not against an individual merely. The guilty party is prosecuted in the interest of the state and not in the interest of the party injured. (7 Cal. Jur., p. 840.) True, the same act may constitute both an injury to an individual, furnishing the basis for a civil action by him, and an injury to the public, for which a penal liability arises. But when the penal liability is enforced in the interest of the People by criminal proceedings, the only right the injury to which is considered is that public right which is due the whole community, considered as a community, in its social aggregate capacity. For this reason it is impossible for the People to *Page 485 be in privity with the individual whose private right was violated by the wrongful act of the accused. Equally obvious is it that the People do not "represent" the private right of the individual in the sense that it is a right to which the People have succeeded.
For the foregoing reasons I think it clear that the sole basis for the application of the doctrine of estoppel in criminal cases is the existence in some individual of a private right, depending for its existence upon the acts of estoppel, which right was invaded by the accused when he committed the criminal act against the state. In the ordinary criminal prosecution for embezzlement, where the complaining witness actually owns the money or property embezzled, or actually has some qualified ownership thereof with the right of possession and control, the prosecution, to make out a case against the accused, must, of course, prove such ownership in the prosecuting witness. In a case where the private individual injured by the act of embezzlement does not actually own the money or other thing of value, or has not an actual qualified interest therein, but has, nevertheless, the right to claim ownership as between himself and the accused, based upon the latter's acts of estoppel, he has a certain kind of private right — a right which, in a civil action by him against his unfaithful agent, would constitute the basis for appropriate relief against the wrongdoer. This private right, notwithstanding it rests entirely upon estoppel, may be proved by the prosecution in a criminal action against the wrongdoer for the same reason and for the same purpose that the prosecution may prove ownership in the complaining witness where the latter is in fact the rightful owner. But whether the People prove an actual ownership, as is ordinarily the case, or prove that the accused is estopped to deny ownership, in either event the prosecution does no more than prove the existence of a private right in the complaining witness — a private right which the accused has injured by an act which constitutes at once an injury to the public and an injury to the individual who has been harmed in his private property right. And so where the accused, by his assumption of authority, has estopped himself to deny that he received the money or property in the course of his employment, evidence of the acts of estoppel is admissible, not upon the theory that the estoppel inures to the People as the direct *Page 486 and immediate beneficiary thereof, but upon the theory that, as between the complaining witness and the accused, the acts of estoppel in effect establish a fact, namely, the relation of principal and agent, which fact is one that appertains to a private right which the accused has criminally violated. "Every fact," says the court in White v. Commissioners of Multnomah,supra, "which forms one of the group of facts of which the right is the legal consequence appertains to the substance of the right." And so in every other instance in which the doctrine of estoppel has been applied in a criminal action, it will, I believe, be found that the application of the doctrine was but a means of proving the existence of some private right in the complaining witness which had been injured by the criminal act of the accused, even though that right be one which exists only as between the complaining witness and the defendant.
It seems clear to me that the admissibility of acts of estoppel in criminal cases can be justified only upon some such theory as that which I have attempted to outline. In a vigorous dissenting opinion in State v. Dawe, 31 Idaho, 796 [177 P. 393], it is said by Mr. Justice Morgan that "the application of the doctrine of estoppel in criminal cases is of doubtful origin and worse than doubtful soundness." Unless I thought that the application of the doctrine could be justified upon some such theory as that which I have sought to expound, I should feel constrained to agree with the learned author of that dissent. The application of the doctrine of estoppel in criminal cases certainly would be of "worse than doubtful soundness" if it were made to rest upon the notion that the estoppel is invokable by the People as its direct and immediate beneficiary. If that were the theory upon which it rested it would do violence to the fundamental rule that estoppel operates only between parties and their privies.
If the foregoing be a correct exposition of the underlying theory upon which rests the doctrine of estoppel in criminal cases, then that doctrine is not applicable in the instant case. Here the criminal act with which appellant is charged did no injury to the complaining witness or to any of her private rights. The injury was solely to society in the aggregate. It is this which differentiates the present case from those *Page 487 relied upon by the attorney-general. I therefore concur in the judgment of reversal.