presence

unlike an individual its 'presence' without, as well as within, the state of its origin can be manifested only by activities carried on in its behalf by those who are authorized to act for it. To say that the corporation is so far 'present' there as to satisfy due process requirements, for purposes of taxation or the maintenance of suits against it in the courts of the state, is to beg the question to be decided. For the terms 'present' or 'presence' are used merely to symbolize those activities of the corporation's agent within the state which courts will deem to be sufficient to satisfy the demands of due process.

The being in a particular place. In many contracts and judicial proceedings it is necessary that the parties should be present in order to render them valid; for example, a party to a deed, when it is executed by himself, must personally acknowledge it, when such acknowledgment is required by law, to give it its full force and effect, and his presence is indispensable, unless, indeed, another person represent him as his attorney, having authority from him for that purpose. Presence at a particular transaction is in a measure relative. Thus, a crime is committed in the presence of a police officer if he can detect the act, and could have seen the persons had it been light (53 Mich. 493); and a married woman executes a deed in the presence of her husband, if he was under the same roof, though not in the same room (112 Mass. 287). Actual presence is being bodily in the precise spot indicated. Constructive presence is being so near to or in such relation with the parties actually in a designated place as to be considered in law as being in the place. Thus, a man was held constructively present at tice to the robber of the leaving of the stage. 13 Nev. 386.,

The being in a particular place. In many contracts and judicial proceedings It Is necessary that the parties should be present in order to render them valid; for example, a party to a deed, when it is executed by himself, must personally acknowledge it, when such acknowledgment is required by law, to give it its full force and effect, and his presence is indispensable, unless, indeed, another person represent him as his attorney, having authority from him for that purpose. Actual presence is being bodily in the precise spot indicated. Constructive presence is being so near to or in such relation with the parties actually in a designated place as to be considered in law as being in the place. Attempting to deter a witness from testifying, while he is in the witness-room or hallways of the court-room, by offering him money, is a misdemeanor in the presence of the court, and punishable without indictment, as contempt; Petition of Savin, 131 U. S. 267, It is a rule in the civil law that he who is incapable of giving his consent to an act is not to be considered present although he be actually in the place. A lunatic, or a man sleeping, would not, therefore, be considered present; Dig. 41. 2. 1. 3. And so if insensible; 4 Bro. P. C. 71; 3 Russ. 441; or if the act were done secretly so that he knew nothing of it; 1 P. Wms. 740. The English statute of frauds, § 5, directs that all devises and bequests of any lands or tenements shall be attested or subscribed in the presence of the devisor. Under this statute it has been decided that an actual presence is not indispensable, but that where there was a constructive presence it was sufficient; as, where the testatrix executed the will in her carriage standing in the street before the office of her solicitor, the witness retiring into the office to attest it, and it being proved that the carriage was accidentally put back, so that she was in a situation to see the witness sign the will, through the window of the office; Bro. C. C. 98. See 2 Curt. Eccl. 320, 331; 1 Maule & S. 294; 2 C. & P. 491; Riggs v. Riggs, 135 Mass. 241, 46 Am. Rep. 464; Baldwin v. Baldwin’s Ex’r, 81 Va. 410, 59 Am. Rep. 669. In Criminal Law. In trials for cases in which corporal punishment is assigned, the defendant’s appearance must ordinarily be in person, and must so appear on record. There can be no judgment of conviction taken by default; Dunn v. Com., 6 Pa. 387; Whart. Cr. PI. & Pr. § 540. The prisoner’s actual presence is not requisite at the making and arguing of motions of all kinds, though in motions for arrest of judgment and in error, the old practice was to require it; Godfriedson v. People, 88 111. 284; Bish. New Cr. Pro. 2G5; State v. Elkins, 63 Mo. 159. This is not now usually required in proceedings in error; People v. Clark, 1 Park. C. C. (N. Y.) 360. In felonies presence at the verdict is essential, and this right cannot be waived; Prine v. Com., 18 Pa. 103; but where a prisoner was voluntarily absent during the taking of a portion of the testimony in an adjoining room, he was considered as constructively present; 25 Alb. L. J. 303. See Lynch v. Com., 88 Pa. 189, 32 Am. Rep. 445. In trials for misdemeanors these rules do not apply; People v. Winchell, 7 Cow. (N. Y.) 525; Whart. Cr. PI. & Pr. § 550. See Tbtal.

Being in a particular place, which is either actual, as where the person is bodily there, or constructive, as where he is so near as to be held to be present in contemplation of law.

Being in a particular place. Actual presence. Being bodily in the precise spot indicated. Constructive presence. Being so near to, or iU such relation with, the parties actually in a designated place, as to be considered, in law, as in the place. 3 In the cdmmission of crime, not always an actual immediate standing by, within sight or hearing of the fact; may be a constructive presence, as when one commits a robbery or murder and another keeps watch at a convenient distance.^ See Accessary; Principal, 5. Does not depend upon whether a person can be distinctly seen.^ Obscene words uttered in the hearing of a female, are used in her presence; especially so, when addressed to her by name.^ "In the presence of the testator" who can see, means within his sight, at reasonable proximity^ Statutes of wills do not make the test of the validity of a will to be that the testator must see the witnesses subscribe their names. They must subscribe "in his presence; " but in cases where he has lost or cannot use his sense of sight, if his mind and hearing are not affected, and he is sensible of what is being done, and the witnesses subscribe in the same room, or in such close proximity as to be within the line of vision of one in his position who could see, and within his hearing, they subscribe in his presence.^ Statutory provisions which require that a will be signed in the presence of the testator are intended to enable him to see that the persons, he confides in are those who attest, and to prevent a, false paper being 1 Campbell v. Holt, 115 U. S. 633 (1885), Miller, J.; Angell, Limitations, §§ 1, 2. See also 51 N. H. 329; 11 Lea, 388; 32 Pa. 398; 38 La. An. 318. 2 [Ray V. Burbank, 61 Ga. 511 (1878), Bleckley. J. s [Baldwin u. Baldwin, 81 Va 410 (1886): Bouvier's Law Diet. 4 4 Bl. Com. 34. e People %). Bartz, 53 Mich. 495 (1884). 6 Brady v. State, 48 Ga. 313 (5873); 1 Keyes, 66. imposed upon them. "Presence "is the opposite of absence; it means in company with, within the view of, in the same room with the testator, coupled with consciousness on his part of such proximity.^ As to the presence of the husband when a wife is acknowledging a deed, see Examination, 5. As to presence in the law of estoppel, see Stand By.

A question to a witness as to what was said " in the presence " of a person is not objectionable on the ground that explicit proof that it was said in his hearing is necessary. What is said in a person's presence may be presumed to have been in his hearing. Hochreiter v. People, 1 Keyes, 66. When obscene and vulgar language is used in the hearing of a female, the words are used in the " presence " of a female, within the meaning of a statute punishing the use of obscene and vulgar language in the presence of a female, without provocation. Brady v. State, 48 Ga. 311.