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
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.
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.