begin at different points. They do not agree as to a single call; the directions are not always the same; in only one instance do they coincide as to distances; the calculation of the distances, calls, and directions shows the lines of the two lots to be more than 1100 feet apart. To uphold a decree under such circumstances would be equivalent to ruling that it may affirm the applicant's title to any land whether described in the application or not.

Respondent claims that the prayer for general relief contained in the application gave the court jurisdiction of the subject matter of the suit. Hence, that under the rule stated in Fox v. Hall and other cases cited, the supplemental decree is not void upon its face or susceptible to collateral attack. The cases mentioned only hold that a prayer for general relief authorizes the court to grant any relief within the issues presented by the allegations of the complaint; it does not confer jurisdiction to determine matters beyond the issues stated in the complaint. This is especially true where, as in the instant proceeding, there is no answer. (Staacke v. Bell, 125 Cal. 309 [57 Pac. 1012].) The purpose of a proceeding under the Torrens Title Act is to adjudicate title to specific land. One of the essential issues is the identity and description of the property. Where the descriptions in the application and decree not only do not so correspond as to indicate that they refer to the same premises, but are so dissimilar as to establish a marked difference, it cannot be said. that the decree adjudicating title to land described in it has passed upon an issue presented by the application. In such an instance, which is the case here, the decree, having adjudicated title to property by a different description than that named in the application, is void. The appellant had no notice that the court would hear evidence concerning any other property than that described in the application. [5] It cannot be said that a prayer for general relief authorizes the adjudication by the court of the title to property other than that mentioned and described by the applicant merely because it appears to be owned by the same person who petitioned for a decree under the Torrens Title Act, or perhaps includes some of the land named in the application. In re Sackett, 53 Cal. App. 592 [200 Pac. 742], is pointed to by respondent as a case almost exactly similar to the one under consideration. The following excerpt from the opin

ion in the decision cited is sufficient to point out the utter dissimilarity of the issues involved in the two cases: "The description contained in the decree and certificate were the same as in the petition and notice."

We conclude that the trial court should have granted a petition to vacate the supplemental decree. In order that

this may be done the order appealed from is reversed.

Finlayson, P. J., and Works, J., concurred.

[Crim. No. 966. Second Appellate District, Division Two.-July 3,

1923.]

THE PEOPLE, Respondent, v. PAUL GRAHAM, Appellant. [1] CRIMINAL LAW MURDER SELF-DEFENSE EVIDENCE. - In this prosecution, in which the defendant was convicted of murder in the second degree, while there were discrepancies in the testimony of the several eye-witnesses to the fatal scene, the evidence was such as to justify the jury in concluding that the defendant was the aggressor in the affray between him and the deceased and that the taking of life under the circumstances was not necessary to the self-defense of the defendant.

[2] ID. THREATS BY DECEASED ASSAULts-Self-defenSE

EVIDENCE.

In this prosecution for murder, in view of the instructions on the subject of self-defense given by the court, it was not prejudicial error to refuse to give the further instruction requested by defendant to the effect that if the jury found that the deceased had made threats against defendant and those threats were communicated to defendant, thereby placing him under constant fear of bodily harm, as a result of which he considered his life in danger when he met the deceased, and if the jury further found that the defendant was in lawful pursuit of business or pleasure at the time and place of the fatal affray, and while in such pursuit he was accosted by the deceased, who was armed with a deadly weapon, and driven from his ground, then under the law defendant had a right to immediately arm himself for the purpose of self-protection against any fresh assaults with a deadly weapon from the deceased.

1. General doctrine of self-defense set up by accused, who began the conflict, notes, 109 Am. St. Rep. 804; 45 L. R. A. 687.

[3] ID. - JUSTIFICATION FOR ASSAULT-WORDS OF INSULT INSTRUCTIONS. The court having instructed the jury that "Mere words of insult or of reproach, however grievous, will not justify an assault, a blow or a threatening demonstration with a deadly weapon," it was not error to refuse defendant's requested instruction to the effect that "no mere words of accusation and insult, however profane or severe, justify an assault under the law" and that, therefore, the deceased was not justified by any words spoken by defendant to him or regarding him in assaulting defendant.

[4] ID.-REPETITION OF INSTRUCTIONS.-When the substance of the refused instruction is given, the defendant is not entitled to a repetition of the same matter or to the adoption by the court of his own phraseology.

APPEAL from a judgment of the Superior Court of Tulare County. J. A. Allen, Judge. Affirmed.

The facts are stated in the opinion of the court.

D. E. Perkins, Karl A. Machetanz and Patterson Howell for Appellant.

U. S. Webb, Attorney-General, and Erwin W. Widney, Deputy Attorney-General, for Respondent.

SHENK, J., pro tem.-Appellant was convicted of murder in the second degree and appeals from the judgment and from the order denying his motion for a new trial.

The deceased, E. W. Mort, died from a gunshot wound inflicted by the defendant on the twenty-first day of August, 1922. There is no dispute as to this fact, but it is contended that the killing was necessary to the self-defense of the defendant under the circumstances shown in evidence.

The deceased lived near the town of Earlimart, in Tulare County. I feeling had existed between him and the defendant for some time. In August, 1921, the deceased had occasion to approach a hay-baling outfit operating about two miles from Alpaugh for the purpose of inquiring if the hay then in process of baling was for sale. The defendant was working on the baler and when he noticed the presence of the deceased he berated him for having accused him at some prior time of stealing hogs. A physical encounter ensued in which the deceased was thrown to the ground and severely

beaten by the defendant. Defendant was undoubtedly a more powerful man than the deceased and as an indication of his disposition it was in evidence that when he had thrown the deceased to the ground he struck and kicked him and when told by a fellow-workman that "he had whipped him enough" and to let him up the defendant replied: "You fellows go back out of this, this is my fight." The existing enmity affords a background in viewing the actions of the parties a year later.

Defendant was in the town of Earlimart on the afternoon of the day of the killing and was heard to say that he was waiting for a man to come to town in a few minutes; that he was looking for him, did not want to miss him, and that then "he guessed he would get him."

About sixteen witnesses who observed the affray testified at the trial. One witness for the prosecution testified that about a quarter of 6 he saw the deceased drive up in his automobile and stop in front of Vaughan's store, which was a combination general store and postoffice; that the deceased alighted from his car, walked around the front end of the car to the sidewalk and started for the store door, where he met the defendant face to face; that defendant then said to the deceased: "Come down in the street and we'll settle this"; that Mort said: "All right," turned around and reached into his car for a club or billy; that when the defendant saw that the deceased had a weapon in his hand he ran down the street and turned the corner; that Mort followed him for a short distance, then turned back to a place near the front of the store, and put the club in his hip pocket; that he saw the defendant approach his own car yelling and making motions with his hands; that he saw him take a 30-30 rifle from his car and go toward the Vaughan store; that the deceased had entered the store and was about two-thirds of the way back talking to the clerk; that the defendant proceeded to a position in front of the store, where he called the deceased many opprobrious names and told him to come outside and he would fix him; that deceased remained in the store until the defendant repeated his command and then went outside; that a bystander importuned the defendant to desist, saying: "Put that gun up, you are too good a man to do anything like this," whereat the defendant said to the bystander: "You get out of the

way or I will poke you, too," and cursed him; that defend-' ant then addressed Mort, saying: "You liar, you know I never stole those hogs"; that Mort replied: "You know you stole those hogs"; that the defendant then said: "If you say I stole those hogs you are a

liar," and repeated the epithet with variations, at the same time pointing the rifle directly at the deceased with less than a foot intervening between the muzzle of the rifle and Mort's body; that Mort seized the muzzle of the gun with his left hand, shoved it to one side, reached into his right hip pocket for his billy and struck the defendant three or four blows; that the defendant received most of the blows on his left arm, which was upraised for protection, but received one blow on the head; that the defendant then jerked the gun away from the deceased's grasp, staggered back a few steps to catch his balance and fired; that the deceased whirled around, fell to the ground and said: "He got me, boys, he got me," to which the defendant replied: "You are

right, I got you," turned around and walked away. The bullet pierced the chest of the deceased, shattering the fifth rib and carrying a portion of the rib into the lung cavity. He died about an hour later.

It was in evidence that defendant put the rifle in his car, went to a near-by gas-filling station, and engaged in conversation with a man to whom he said: "I just shot him down there." When asked why he had done so he replied: "He hit me over the head with a club. I have got self-defense." Another witness testified that he saw the defendant take the rifle from his car; that he was about ten feet from the defendant when he saw this and that as the defendant reached into his car for the gun he said: "I'll get him"; that shortly thereafter he heard the shot.

A clerk in Vaughan's store testified that it was the custom of the deceased to stop at the store in the evening to get his mail and the groceries he had ordered in the morning and that he came to the store for that purpose about a quarter of 6 on the evening of the tragedy.

Another witness testified that when the defendant took the gun from his car he saw him make motions as if he were loading it; that the defendant walked toward the front of Vaughan's store and called out: "Come out now, you

-; I will fight you"; that the defendant pointed.