PRESENCE. The being in a particular place.
In many contracts and judicial proceedings it Is necessary that the parties should be present in or der to render them valid ; for example, a party to a deed, when it is executed by himself, must per sonally acknowledge it, when such acknowledgment is required by law, to give it its full• force and ef fect, and his presence is indispensable, unless, in deed, another person represent him as his attorney, having authority from hlm for that purpose.
Actual presence is being bodily in the pre cise 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 testi fying, 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 Sevin, 131 U. S. 267, 9 Sup.. Ct. 699, 33 L. Ed. 150.
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 insensi ble ; 4 Bro. P. C. 71; 3 Russ. 441; or if the act were done secretly so that he knew noth ing 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 stat ute it has been decided that an actual pres ence is not indispensable, but that where there was a constructive presence it was suf ficient; as, where the testatrix executed the will in her carriage standing in the street be fore the office of her solicitor, the witness retiring into the office to attest it, and it be ing proved that the carriage was accidentally put back, so that she was in a situation to see the witness sign the will, through the win dow 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 tak en by default; Dunn v. Com., 6 Pa. 387; Whart. Cr. Pl. & Pr. § 540. The prisoner's actual presence is not requisite at the mak ing 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 Ill. 284; Bish. New Cr. Pro. 265; 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 can not be waived ; Prine v. Com., 18 Pa. 103; but where a prisoner was voluntarily absent during the taking of a portion of the testi mony in an adjoining room, he was consider ed 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. Pl. & Pr. § 550. See TRIAL.