Worthington

The appellant was convicted of murder in the second degree, and now appeals from the judgment and order denying her motion for a new trial.

It is insisted that the trial court committed error in giving the jury the following instruction: - “It is, however, supposed to be unnecessary to elaborate the law of self-defense for the purpose of this case, inasmuch as it is understood to be conceded that the deceased was not, at the moment he was shot, endeavoring to do any injury to the accused woman, or to any other person, but was standing quietly at the wharf when she took his life by shooting him with a loaded pistol.” It is unfortunate that the statements of the judge found in this instruction as to the facts of the case should have gone to the jury. It is said in People v. Gordon, 88 Cal. 426 : “That *245 judges must not charge juries with respect to matters of fact is a constitutional prohibition which has been jealously guarded and rigidly upheld- from the earliest judicial history of the state.” In People v. Phillips, 70 Cal. 68 , the trial court detailed to the jury certain facts of the case as having been proven, and this court there said: “Of course this mode of charging a…