Main

The defendant and appellant was charged by indictment in the county of Los Angeles with having violated the Corporate Securities Act. It was alleged in four counts thereof that on the respective dates therein mentioned he sold and issued shares of the capital stock of a corporation which had not obtained a permit to issue or sell its stock; and in a fifth count that without first having obtained a permit or license so to do, from the commissioner of corporations, he engaged in the business of selling shares of the stock of the same corporation on the dates specified in the first four counts. General and special demurrers were interposed, which were overruled, and the defendant was convicted by a jury upon each of said counts. Motion for a new trial was thereafter presented and overruled, and this is an appeal from the judgment and the ruling upon said motion.

The charging part of the first four counts of the indictment to which exception was taken by demurrer and which constitutes the basis of attack here, alleged that “the said P. L. Main did then and there wilfully, unlawfully, knowingly and feloniously, and for a valuable consideration, sell and issue, and aid and abet some…

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.…

I concur in the judgment and in the opinion of Mr. Justice Craig, with this exception: I do not concur in what he says upon the subject of estoppel. I think it inexpedient to join in a quest for the reasons upon which the supreme court, in company with other tribunals, has applied the doctrine of estoppel in criminal cases, for I do not think such a search is necessary to a decision of the present action. Upon the question of estoppel I think no more than this need be said: The doctrine has been applied in no criminal case except where the defendant was sought to be punished for a wrongful invasion of the private property right of an individual, which invasion might have been the subject of a civil action by the individual, and in which he might have invoked the estoppel allowed to be asserted in the criminal case. The prosecution here seeks to punish appellant for acts and omissions which did not themselves invade the property right of any individual. There is no estoppel involved in the specific charges here made which any individual could invoke. It seems to me that these are sufficient reasons for the assertion that the criminal cases in which the doctrine has been applied are…