Cobb, J.
1. After a careful reading of the evidence in this case we are satisfied that there was nothing proved which would have authorized the jury to find the accused guilty of the offense of manslaughter; and therefore the failure of the judge to charge the law relating to that offense was not erroneous. It is therefore unnecessary to determine whether the admission in open court by counsel for the accused, that the case as made by the evidence was one where the accused was either guilty of murder or was justifiable, would have been a sufficient reason for the judge to fail to charge the law of manslaughter, if as matter of fact the evidence would have authorized a finding that the accused was guilty of this lower grade of homicide. In the case of Coney v. State, 90 Ga. 140, it was held that there was no error in not charging touching the law of manslaughter, when counsel for the prisoner admitted in open court that manslaughter was not involved and contended that the homicide, if not murder, was justifiable, and the evidence was sufficient to warrant counsel in taking this position. This case is not authority for the position that counsel can hy an admission in open court excuse the judge from charging upon the law applicable to the case. It would seem to be the better practice for the judge to charge the law applicable to the facts of the case as he understands them, without regard to the construction placed upon the evidence hy counsel for the accused. The present case is exactly in line with the Coney case. Both counsel and the judge were correct in their conclusion, that the law in relation to manslaughter had no application to the case.
2. When the conductor of a passenger-train discovers a person attempting to steal a ride upon the train without paying his fare, the conductor has a right to stop the train and require the tres*283passer to either pay his fare or leave the train, using such force as may be necessary to accomplish this purpose. But this is not the only course open to the conductor. He may require the trespasser to come into the train, without stopping the same, and thus give him an opportunity to pay his fare or explain the circumstances which apparently indicated his purpose to defraud the company. More than this, although satisfied that the person would not pay Ms fare, the conductor could,'without stopping the train, compel him to come Mto the same for the purpose of investigating the matter. In such a case the conductor would have, under his powers as a police officer of the State, authority to retain the trespasser M custody and deliver him to the State authorities for a violation of the law m attempting to steal a ride on the train. See Acts 1897, p. 116; Penal Code, §902. The .conductor has a right to compel the trespasser to come Mto the tram, M the discharge of the duty wMch he owes Ms employer to require payment of fare; he has authority under the law of the State to arrest such a person for violatmg a law of the State; and in cases where the trespasser is in a dangerous position, the conductor has a right, for the trespasser’s own safety, to compel him to come inside of the tram. Certainly such a person has no right to demand that the tram be stopped immediately at a place not a regular stopping-place, m order that he may be ejected from the tram Mstead of bemg reqmred to ride thereon until a regular stopping-point is reached, at which the tram can be stopped without detriment to the company’s Mterests or to the convenience of the passengers. If a person found M such a position on the train as is above indicated refuses, upon request of the conductor or other employees M charge of the tram, to come into the tram, and manifests an intention to resist any effort on them part to brmg him M, and to this end makes a display of a deadly weapon, the employees have a right to arm themselves M such manner as may be necessary to protect themselves from an assault by the trespasser, and enable them to force him to come Mto the tram. The charge complaMed of seems to be in substanstantial accord with the principles above stated, and we see no error in the same.
3. It was further contended that the charge dealt with M the precedMg division of the opMion was erroneous for the reason that it contained an expression of opinion as to what had been proved. *284A careful reading of the charge will make it manifest that it is not subject to this criticism.
The accused relied upon the defense of alibi. The jury have seen fit to disregard the testimony of the witnesses introduced 'for the purpose of establishing this defense, and have preferred to believe the testimony introduced in behalf of the State, which was amply sufficient to authorize a finding that the crime was committed by the accused. Such being the case, and there being, in our opinion, no error of law, the judgment of the trial judge refusing a new trial will not be disturbed.
Judgment affirmed.
All concurring, except Lewis, J., absent.