Three points have been presented by the defendant’s counsel in support of this bill of exceptions, neither of which seems to be well taken.
1. The actual enjoyment and use of the franchise by the Middlesex Railroad Company were evidence sufficient to au thorize the jury to find, in the absence of any proof to the contrary, that its location was lawful. The provision of law for the punishment, as a criminal act, of the wilful and malicious obstruction of a railroad track, is not designed merely for the protection of the company in the enjoyment of its property. It is intended as much for the security and protection of the passengers upon the road, as a provision for the public safety and convenience ; and it is much more questionable whether affirmative proof of irregularities in the proceedings of the company, such as were suggested in the defendant’s prayer for instructions at the trial, would have availed him in defence, than whether the proof offered was sufficient to authorize the jury to find the facts necessary to support the indictment.
2. It was not necessary to prove that the defendant was requested to remove from the track, and refused to do so, if the jury were satisfied from other evidence that his obstructing the cars was wilful and malicious. Such request and refusal are only one species of evidence that the obstruction is intentional.
3. The intention of the defendant to obstruct the car is sufficiently alleged by charging in the words of the statute that he did “ wilfully and maliciously ” obstruct it. Commonwealth v. Brooks, 9 Gray, 299. In Commonwealth v. Temple, 14 Gray, 69, it was settled that an actual purpose to obstruct the car is not necessary to constitute the offence; “ that if a wilful intent to follow his own convenience, in violation of the equal rights of others, exists, it is sufficient.” Exceptions overruled.