Thе defendant was indicted for the crime of larceny from the person, and was tried and convicted. The trial judge certified certain questions to this court.
I. It is certified that the offense was committed on a bridge which, at Winona, in this state, spans the Mississippi river from the Minnesota side to thе Wisconsin side of that river, and was so committed on the part of said bridge which is built upon an island in the river. This island is on the Wisconsin side of the main channеl of the river, and the waters between the island and the Wisconsin bank of the river are not used for navigation. Said bridge crosses said island, and is supported on piles driven into the soil of the island. The bridge is a permanent structure, used as a driveway for teams and vehicles, and the floor of the same is above high-water mark. “Said island is subject to overflow and when said river is at a stage of ordinary high water and for a period of about four months in each year is submerged to the depth of from two to four feet by the waters of said river.” The question certified on these faсts is, “Had the district court jurisdiction to try, hear, and determine this matter?”
It is contended by counsel for defendant that the courts of Minnesota have no jurisdiction over this offense. It is urged that the offense was not committed on the waters of the river, but on a permanent structure built on an island, and whiсh is a part of the
“Sec. 3. And be it further enacted, that the said state of Wisconsin .shall have concurrent jurisdiction on the Mississiрpi and all other rivers and waters bordering on the said state of Wisconsin, so far as the same shall form a common boundary to said state аnd any -other state or states now or hereafter to be formed or bounded by the same.” 9 Stat. at Large, c. 89, § 3.
Section 2 of the enabling act under which Minnesota was admitted into the Union is an exact copy of the above section, except that the word “Minnesota” is substituted for the word “Wisconsin.” 11 Stat. at Large, c. 60, § 2. This section is incorporated in the constitution of Minnesota, art. 2, § 2. It is provided by Laws 1889, 'c. 70 (G. S. 1894, §§ 4835, 4836), that this concurrent jurisdiction shall be exercised by the courts sitting in the counties bordering on the river, and for this purpose the part of the river bordering on each county is attached to that county. Some of the purposes of this concurrent jurisdiction are to enforce proper police regulations on the river, and to regulate and protect interstate traffic on and across the river, and the persons engaged in the same. If public travel across the river at this point was carried on by means of a ferryboat, there is no question but that this concurrent jurisdictiоn would attach during the transit across the river. The fact that the appliance by means of which the travel is carried on is a bridge instead оf a ferryboat does not change the rule. The question here involved is not whether the courts of Minnesota have jurisdiction ■over this permаnent structure on this island considered as real estate, but whether Minnesota and her courts have jurisdiction over the persons and moving or mоvable vehicles and things oh this bridge. In our opinion, it is not material whether, at the time of the occurrence, such persons happen tо be over the water of the
2. The judge further cеrtified that on the trial of said defendant it appeared that he had a preliminary examination upon said charge in the municipal сourt of Winona, at which a witness was examined on behalf of the state> and cross-examined by defendant’s attorneys; that, at the request of thе judge of that court, a competent stenographer was present, and took down all the evidence in shorthand, but he was not sworn, pursuant to Gr. S. 1894, § 1372; that after said examination, and before said trial, said witness died; that said stenographer was called and sworn as a witness on behalf оf the state, and he, having refreshed his memory by his stenographic notes, gave evidence as to what said deceased witness had so testifiеd on said examination; that defendant’s attorney duly objected to this testimony on the ground that it was incompetent and inadmissible, “and upon the further ground that several questions asked said Bogers” (the deceased witness) “upon his said cross-examination had been erroneously excludеd by the court on objections made thereto by the county attorney,” but the district court on said trial overruled defendant’s said objections, аnd admitted said testimony, to which defendant excepted. The question certified is, was the evidence of the stenographer admissible? We are of the opinion that it was. It must be presumed that the defendant was present at such examination, was confronted with the witness, and had a reasonable opportunity to cross-examine him. Under these circumstances, the evidence was admissible on the subsequent trial, the witness hаving died in the meantime. Where a witness against the defendant on the trial of a criminal case dies before a subsequent trial, his testimony on the fоrmer trial may be given in evidence on the subsequent trial. People v. Murphy,
3. The stenographer, when testifying, could use bis notes to refresh bis memory. Rounds v. State,
4. None of tbe evidence given upon tbe trial in the court below is returned here. Neither does the judge certify what questions, if any, were so excluded on said cross-examination of said deceased witness. It does not appear that defendant did not have a proper opportunity to cross-examine tbe witness, or that tbe second ground of bis objection above quoted was well founded. This disposes of all the questions in this case.
Tbe two questions certified are answered in tbe affirmative, and tbe cause remanded to tbe court below for further proceedings.
Notes
Buck, J., absent, took no part.