deposited in lieu of bail. The attorney who had before appeared for the defendant at this time objected to the defendant's being called, or any proceedings being taken to declare the deposit forfeited, "on the ground that the indictment in said cause did not set forth any public offense against the laws of the territory of Utah," and requested the privilege of being heard on the sufficiency of said indictment. The assistant district attorney objected to the appearance of said attorney and to his right to be heard as requested, on the ground that the defendant had no right to appear by attorney or counsel, and that his attorney had no right to be heard in the case. The court so decided, and thereupon the defendant was called, and not appearing, an order of forfeiture was entered; to all of which the attorney for the defendant excepted. Afterwards, but during the same term, and without any personal appearance on the part of the defendant, and without his surrendering himself in any way to the custody of any officer, his counsel moved the court to discharge the order of forfeiture, upon the same grounds substantially on which he had sought to resist the entry of the order. The hearing upon this latter motion was postponed from time to time, and finally came on to be heard during the April term of the court, at which time the district attorney objected to the hearing of the motion, on the ground that the defendant was at large, and could not be heard in an application to discharge the forfeiture unless personally present; and in support of his objection presented a certificate of the United States marshal, showing that the defendant was still at large, a fugitive from justice. The court received the certificate and refused to entertain said motion, to which counsel for defendant excepted. Afterwards the court ordered the clerk to pay over said deposit money to the territorial treasurer, as directed by section 411 of the criminal practice act. Arthur Brown, for the appellant. No brief on file. Zera Snow, assistant district attorney, for the respondent. The orders complained of are not appealable, no appeal having been given by statute. But if they are, the defendant can not be heard. A defendant charged with a felony may appear with counsel, not by counsel. He had no right to move by counsel to set aside the forfeiture; he can not prosecute this appeal by counsel: People v. Redinger, 55 Cal. 290; State v. Genet, 59 N. Y. 81; Smith v. United States, 94 U. S. 97; Commonwealth v. Andrews, 97 Mass. 543. EMERSON, J.: This appeal, prosecuted on the part of the defendant by his counsel, is from the order of the court forfeiting the money deposited in lieu of bail, upon the default of the defendant in not appearing when the case was called for trial; and from the ruling of the court in refusing to entertain the motion, to discharge the order of forfeiture, made by his counsel, while the defendant was still at large, a fugitive from justice, and without his having in any manner surrendered himself to the jurisdiction of the court subsequent to the order of forfeiture, and no excuse whatever being offered for his failure to appear at the trial; and also from the order of the court directing the clerk to pay over the money deposited to the territorial treasurer. When the cause was called for argument, the assistant district attorney, Zera Snow, Esq., moved the court to dismiss the appeal, on the ground that the defendant was still at large, a fugitive from justice. This fact is made to appear by the certificate of the United States marshal, nor is it denied by the counsel who prosecutes this appeal for the defendant; and upon the further ground that the orders themselves. are not appealable. The appeal should be dismissed on both grounds. The offense charged is a felony, and so long as defendant remains a fugitive from justice he has no right to be heard upon any appeal in his behalf in this court: People v. Redinger, 55 Cal. 290, where many cases are reviewed, all holding the same way. Certainly this defendant has no right to be heard while he refuses to submit himself to the jurisdiction of the court, upon any matters connected with the proceedings appealed from. 3 334 12 270 The orders are not appealable. They were but steps in the criminal proceedings commenced by the filing of the indictment, and if reviewable at all, could only be so on an appeal from a final judgment: People v. Clarke, 42 Cal. 622. The appeal is dismissed. HUNTER, C. J., and TwISS, J., concurred. PEOPLE v. HILL. SECTION 192 OF THE CRIMINAL PRACTICE ACT CONSTRUED. The second AN INDICTMENT, FRAMED IN THE LANGUAGE OF THE STATUTE, CHARGING AN INDICTMENT WHICH CHARGES SEVERAL ACTS, ANY ONE OF WHICH SECTION 196 OF THE CRIMINAL PRACTICE ACT CONSTRUED.-The words "next succeeding grand jury," in section 196 of the criminal practice act, providing that after demurrer to an indictment is allowed the court may resubmit the cause 'to the same or to the next succeeding grand jury," refer back to the time when the judgment on the demurrer is made and entered, and the meaning is that if the order of resubmission is made, it must be to the first grand jury that meets after the demurrer is allowed. IN THIS CASE THE JUDGMENT OF THE COURT BELOW SUSTAINING THE DeMURRER WAS REVERSED AND THE CAUSE REMANDED, with instructions to that court to overrule the demurrer and allow the defendant to plead to the indictment. APPEALS from the third district court. The people appealed from the judgment sustaining a demurrer to the indictment; the defendant appealed from an order resubmitting the cause to the grand jury which should be next impaneled after the judgment on the demurrer, and from an order holding the defendant in custody to abide the action of such grand jury. Subsequent to the finding of the indictment, and prior to the judgment on the demurrer being entered, a grand jury impaneled for the third district had convened and been discharged. The opinion states the other facts. E. T. Sprague, assistant U. S. attorney, Zera Snow, assistant U. S. attorney, and Arthur Brown, for the people. This is an appeal by the people from an order of the third district court sustaining a demurrer to the indictment, and is taken under the criminal practice act of 1878: Crim. Prac. Act, 1878, sec. 361; People v. Ah Owen, 39 Cal. 604; 47 Id. 112. On this appeal it is very desirable on the part of the people that it be settled whether: 1. Non-conformity to section 151 is cause of demurrer. Admitting that the legislature may have intended 151 where it has said 152, in subdivision 2 of section 192, does such intention, unexpressed, become effectual? 2. Whether this demurrer contains specifications to the indictment so as to entitle it to be considered at all under section 193. An answer in 'the negative to either of the above queries involves reversal of the judgment on the demurrer. The first ground of demurrer (in substance, for ambiguity and uncertainty) is based upon subdivision 2, section 192; the section referred to therein (152) in no way prescribes the form or substance of an indictment, though section 151 does. But an indictment which fails to meet the requirements of section 151 is not demurrable, for the reason that the statute, section 193, has failed by its very terms to make that a subject of demurrer. But this ground of demurrer is not well taken, for the reason that it fails to point out in what respect the indictment does not comply with the sections named. It is in substance a demurrer that the indictment "is ambiguous, uncertain, and unintelligible;" and this uncertainty must be pointed out in the demurrer-not in argument merely-or it must be disregarded. In civil cases, this is the rule without a statute; in criminal cases, the statute requires it. See Prac. Act, 1878, sec. 193; and see Lopez, Adm'x, v. Central Arizona Mining Co., 1 West Coast Rep. 41, where the rule is carried further than we would admit; People v. Ah Sam, 7 Nev. 127. Any other rule would enable a defendant to assign, in argument, to the lower court one ground of uncertainty, and on an appeal another and different one, thus raising in an appellate court objections not first taken below, and upon which the lower court had no opportunity to pass. But we submit the indictment is definite and certain, and contains the "particular circumstances" of the offense, unless it is a rule of pleading that evidenciary facts, and not ultimate facts, must be pleaded. If to enable the court to pronounce judgment (sec. 158), or the defendant to answer the indictment (sec. 150), it is meant that a defendant is entitled to be advised of all the evidence of the prosecution, the indictment may be insufficient. If the court below and counsel were asked if the indictment stated a public offense, the answer unquestionably would be that it did (it is not demurred to because it does not statę a public offense; on the contrary, one of the objections is that it states too many offenses), and that that offense was embezzlement. If now the indictment states all the facts that the evidence of the prosecution admits of, then we take it the order of the court below will not be affirmed, because the indictment fails to state "particular circumstances," which might have been, but which owing to the scarcity of facts were not connected with the transaction. We invoke as the broadest rule of pleading (and the one most favorable to defendant), that if an indictment states the particular circumstances of an offense so fully and clearly that the defendant and the court can understand the charge made, it is in that regard sufficient. Taking sections 150, 151, and 158, and studying them together, and this rule includes all that is required by them. "Particular circumstances" are words which, literally accepted, are without defined limits. They involve unnum |