Rehearing denied.
In denying a rehearing in this case, it is proper to add that upon the question as to the constitutionality of our statute providing that the jury are, on all proper occasions, to be instructed that the testimony of an accomplice ought to be viewed with distrust and the evidence of the oral admission of a party with caution (Code Civ. Proc., sec. 2061), which question was fully argued both in the briefs herein and orally, we are of the opinion that, so far as the statute requires such an instruction ever to be given, it is unconstitutional, for the reason that such an instruction would be in violation of the constitutional injunction against judges charging as to matters of fact. It has been frequently said by this court that the giving of such an instruction will not be held reversible error where by it the jury are instructed as to mere commonplace matters within their general knowledge (People v. Wong Bin, 139 Cal. 60, 65; People v.Farrington, 140 Cal. 656), but we are satisfied that a judgment should never be reversed for the refusal on the part of the court to instruct upon matters of fact.