Dissenting. — Estoppel has been defined as ‘ ‘ a preclusion in law which prevents a man alleging or denying a fact in consequence of his own act, allegation or denial of a contrary tenor.” (16 Cyc. 679, note 1.) The application of the doctrine of estoppel in criminal cases is of doubtful origin and worse than doubtful soundness. To attempt to apply it to this case is to violate Rev. Codes, see. 7758, which provides that the plea of not guilty puts in issue every material allegation of the indictment, and the well-known principle of law that the burden is on the state to prove every fact and circumstance which is essential to the guilt of the accused. (12 Cyc. 379.)
The application of that spurious doctrine here means that not only was appellant precluded from showing the law did not make it his duty, as charged, to receive the money and pay it over to the city, but relieved the state of the burden of proving he received it, as clerk, by virtue of his office, and thus violated an official trust when he misappropriated it.
No case can be found where a court has followed this so-called doctrine of estoppel in criminal cases to the extent of holding that an accused can be prevented from- asserting what the law is, or that his act did not constitute a violation of the law he was accused of having violated. That is the result of its application to this case and means that because *813appellant, when he received the money, assumed to act as clerk he is precluded from showing, or asserting that, as a matter of lorn, no such duty rested upon the incumbent of that office and that when he appropriated it to his own use no official trust was violated.
Reduced to its final analysis, estoppel in criminal cases amounts to this: Although accused is not guilty of the crime charged, his misconduct has been such as to make proof of his guilt unnecessary in order to bring about his conviction.
The indictment in this case charges, in substance, that appellant was an officer of the city of Idaho Falls, to wit, city clerk, and that by virtue of his trust as such officer there came into his possession and under his control $8,430.78, the property of the city, and that while said money was so in his possession and under his control, by virtue of his said trust, he appropriated it to his own use, not in the due and lawful execution of his said trust.
The indictment charges a violation of Rev. Codes, sec. 7066, by appellant, as an officer, to wit, clerk of Idaho Falls. That section, so far as it applies to this case, provides: “Every officer of ... . any city .... and every .... agent of any .... corporation (public or private) who fraudulently appropriates to any use or purpose not in the due and lawful execution of his trust, any property which he has in his possession or under his control by virtue of his trust .... is guilty of embezzlement.”
The gravamen of the offense is the misappropriation of property in violation of a trust and the crime may be committed, so far as this case is concerned, by either one of two classes of persons: 1. Officers of cities; 2. Agents of corporations.
The evidence tends to Show that appellant came into possession of money of Idaho Falls and that he appropriated it to his own use. If he did this as an officer of the city he is guilty of a violation of the above-quoted statute. If he did it as an agent of that municipal corporation, he is guilty of a violation of the same statute. Whether he acted as an officer or as an agent becomes material because of the allegation *814in the indictment specifically accusing him of having acted as an officer, to wit, clerk. This designation of the capacity in which he acted made it necessary for the state to establish that, in misappropriating the funds of the city, appellant violated a duty which he, as clerk, owed to it.
Had the evidence shown that, instead of being clerk, appellant was mayor of Idaho Falls and that, in the latter official capacity, he received and misappropriated the money, it would hardly be urged that the proof would sustain this indictment although a mayor may commit the crime, mentioned in the statute. It is equally clear that if'his misconduct did not constitute a breach of a duty which the clerk owed to the city, but that his misappropriation of the funds of the municipality, was in violation of the trust which it reposed in him as its agent, there is a fatal variance between allegation and proof.
Agency may be, and sometimes is, created by the conduct of the parties. Official duties are imposed only by law. (29 Cyc. 1431; Moore v. State, 53 Neb. 831, 74 N. W. 319; Warswick v. State, 36 Tex. Cr. 63, 35 S. W. 386; State v. Bolin, 110 Mo. 209, 19 S. W. 650; State v. Meyers, 56 Ohio St. 340, 47 N. E. 138; People v. Shearer, 143 Cal. 66, 76 Pac. 813; Hartnett v. State, 56 Tex. Cr. 281, 133 Am. St. 971, 23 L. R. A., N. S., 761, 119 S. W. 855; Dickey v. State, 65 Tex. Cr. 374, 144 S. W. 271.)
There is no statute in Idaho making it the duty of the city clerk to collect, or pay over, this money, and the ordinances by which it was sought to impose those duties upon that officer were held, by the trial court, to be void, so that the state failed to establish the following-indispensable elements of the crime charged: That the money in question was in appellant’s “possession or under his control by virtue of his trust” as city clerk, and that while it was so held in his possession he appropriated it to “a use or purpose not in the due and lawful execution of said trust.”
It appears that a custom was established, probably pursuant to the ordinances which were held to be void, as above noted, whereby appellant collected certain money belonging *815to the „ city and turned portions of it over to the treasurer. "While void ordinances cannot serve to impose an official duty upon the clerk, the custom which was established and the conduct of the parties in following it made appellant the city’s agent, and his misappropriation of the money in question constituted a breach of his trust, as such, and a violation of Rev. Codes, sec. 7066. He was not accused of that, but was charged with having, as city clerk, violated a duty which that officer, as such, was not shown to owe to the municipality. He was not accused of the crime of which the evidence tended to show him guilty and, in the absence of a valid ordinance making it his official duty, as city clerk, to pay over the funds in question, he could not be guilty of the one of which he was accused.