Concurring. — I concur in the conclusion reached that the judgment of conviction must be affirmed.
It may be true that estoppel, as that term is ordinarily used, cannot be invoked against a defendant in a criminal case. But in this case the appellant assigned as error the refusal of the trial court to strike Exhibits “D,” “T” and “F,” which were purported ordinances of the city of Idaho Falls, for the reason that the evidence showed that these ordinances were never published or posted as required by law. I think the court properly refused to strike these exhibits. They were competent to show that the appellant, while acting as city clerk, collected funds belonging to the city with the consent of the municipality, and that therefore, when collected by appellant, they became the property of the city. There is no evidence in the record to suggest that appellant, while collecting the funds of the city, was acting merely as an agent of the city, or otherwise than in his official capacity as city clerk. The funds came into his possession by virtue of his office. In my opinion, independently of any statute or ordinance, he was under a legal duty, as city clerk, to pay the funds collected by him to the legal custodian of the funds. I think, therefore, the appellant was *812properly charged and convicted of embezzlement of the public funds of the city of Idaho Falls as city clerk.
The court properly declined to require the state to elect as to which act of embezzlement it would rely upon, because the evidence did not show that there were separate acts of embezzlement. The indictment charged but a single offense. I think it is not a question of whether the embezzlement of separate and distinct amounts was susceptible of direct proof, but it is a question of whether the evidence did prove that there were separate and distinct embezzlements of separate amounts. Until the evidence disclosed such a state of facts the state was not required to elect, but the issue properly went to the jury upon the indictment itself.