1962 Bar Examination questions (Continuation) Remedial Law

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Part of The Lawyers Journal

Title: 1962 Bar Examination questions (Continuation) Remedial Law
Language: English
Year: 1962
Subject: Remedies (Law) -- Philippines --Examinations, questions, etc.
Rights
Fulltext: VII. (a} What do you know about the so-called impossible crimt's? Do the pe1 ·petrators thereof incur uny criminal li:ibility under the pl'ovisions of the Revised Penal Cor!e? Why? (b) I n the affirmati\·e case, give an cxnmple of a fclC111ious act punished by the Penal Code that turns out to be an impossible crime. In the negative case, explain briefly why the perpetrator vf a so-called impossible crime does not incur any criminal liability. \'III. Jn January, 1959, Romeo was prosecuted and convicted in the Court of First Instance of Manila of 3 crimes of th~ft fol' which he was sentenced by reason of the value of the properties stolen to the following penalties of prision correccioual: l'G,200 fine to 3 years, G months and 20 days; l'l,000 and P500 fine to 1 year, 8 months and 21 days in each case. Romeo immediately commenced to serve these )lenahies in i\luntinglupa. Jn 1960, while serving s~ntenec, he escaped therefrom and went to Lingaye11, Pangasin:rn, where he also committed IO crimes of ('Stafa, each in the sum of J>I,0-00, for all whi~h crimes, he again was prosecuted and convicted after hearing in May, 1961. Under these eircumstanC'es, can the penalties imposed 1o Rome-o, for the crimes committed before his escape from l\tuntinglupa, affect the imposition and service cf the penalties for which hC' was sentenced for the second group of crimes undf'r the threefold-length-of-time rule prescribed in Article 70, last para~raph, of the Revised Penal Code, as amended by Commonwealth Act 217, section 2? · I X. X-newspaper of general circulation in the Philippines, published in its issue of August I , 1962, a libelous a1·ticle accusing A, B and C of having acted in confederation to smuggle as they did smuggle into the Philippines, several items of merchandise worth PI,000,000. A resides in Manila; B in Quezon City : and C in Polo, Bulacan. Under these facts, may the criminal liability of the author of that libel be divided into 3 distinct and separate offenses so that said author might be prosecuted and convicted of 3 crimes O r libel? Expla~n your answer. :X. (a) A, B, C and D, without any right whatsoever squatted on a piece of land in the Cit y of Manila, the property of z. Inasmuch as ejectment prnceedings would take quite a very long time to produce results, if evt>r successful, can the Viscal of Manila, upon complaint of Z, charge A, B, C and D with the crime of coercion or unjust vexation which, though light felcnies, covered by Article 287, last paragraph, of the Revised Penal Code, would, upon conviction of the culprits, bring about their immediate ejection from the premises? Express your opinion giving your reasons therefor. (b) Hogelio was prosecuted for murder. After hearing, he was found guilty of the crime charged attended by the mitigating Circumstance of the offender having voluntarily surrendered himself to a person in authority or his agents. He was, t herefore, sentenced, among oth('rs, to the principal penalty provided for murder in its minimum· degree, that is, to 17 years, 4 months and 1 day of rechtsio1t temporal. May the provisions of Acts 4103 and 4225, known as the indeterminate sentence law be applied in this case? Explain your anREMEDIAL LAW TO T HE EXAM IN EE: Whl'l'e you are given a problem, first give your answer and then your reasoning. I. A11tonio was run over by a jeepney driven by Cirilo but owned by Baldomero and he suffered serious physical in· juries as a result; in due t ime, A11tonio filed a civil action fo1· damages against Bu.ldotlb'11'o in the Justice of the Peace Court and immediately secured a writ of attachment upon Bal<lomero'B properties which was levied upon a parcel of unregistered land owned by Baldomero; trial was held and Antonio won in the Justice of the Peace but Baldomero appea led. (a) If pending t rial in the Cou1-t of Flrst Instance, A nto11io died whe1 ·eupon, Baldomero moved to dismiss but Antonio~s heirs oppose the motion, how wonld you rule on the motion? (b) If pending trial in the Court of First Instance, it was flaldcmiuo who died ana his heirs therefore move to dismiss but A ntonio opposes the motion, how would you mle on said motion? I I. Dionisio filed an action against Eriberto but when the Sheriff came to Eriberto's house, to serve summons, it happened that E riberto was away having gone to Mindauao on business and the Sheriff only 1·eached Eriberto's wife who received the summons for him; now Eriberto did not return any more because he died in Mindanao, 1 day before service of summons upon his wife here in Luzon but news of his death came to his wife much later and Dionisio was able to secure a default jmigment i11 the action and after that a writ of execution, but when this was about to be levied upon Eribe;-to's properties, his wife liaving a lready learned of Eriberto's death, consulted an attorney who filed a motion to annul the execution and the default judgment, but beca:ise one year had already passed since the entry of the judgment when the wife came to know of E riberto's cleath so that the motion was filed more than one yea1· after the entry of said judgment , therefore, Dionisio opposed t he motion alleging it was too la te, because according to him, lack of jurisdiction over the person of Eriberto should have been availed of under Ru!~ 8 and the period fot' this had already passed; in any case, the pcriod prescribed in Rule 38 on relief from judgment had also already passed. How do you decide? I ll. Felix leased l1is house to G:·eg0rio ; Gregorio failed to pay the 1·entals due; Felix sent him a letter of demand and a threat to sue him on unlawful detainer should he not make 1>ayment within IO days from notice; Gi·egorio received the letter but did not pay nor vacate; instead, Gregorio filed an action against Felix in the Court of F irst InstanCC' for specific performance, alleging that t he rental agreed lJpon was much lower than that demanded and that he, Gregorio, wa s willing to pay the correct amount and therefore, he cleposited the amount in the Court of First Instance a nd asked that Felix be ordered to receive them and to permit him, Gregorio, to continue in possession as lessee. Felix having received summons, he filed an answer alleging that the rental he had demanded was the conect one. The case was tried in the Court of First Instance and decision was rendered for Felix, dismissing the case. After judgment had become final, Felix presented his own action, for unlawful detainer, against G1·egorio, but Gregorio, upon receipt of the summons in this case, n(Jw filed a motion to dismiss on the ground that this was a suit on exactly the same cause of action betw~n them and that since Felix foJ'got to secure the correct remedy in the first case by filing his necessary counterclaim for unlawful detainer, the judgment in t he first case already ba rred him from instituting the second action. Decide the motion. JV. Juan sues Leon on a sum of money for b1·each of contract; but before trial, ~uan goes to Tokyo on business; he is there when his attorney receives notice of t l'ial; therefore the attorney at once serves notice upon Leon's attorney in Manila for t he taking of Juan's deposition before the Philippine consul in Tokyo upon oral examination, on a definite time and place, before the scheduled trial in Manila; Leon's September 30, 1962 LAWYERS JOURNAL Page 285 attorney consulted with Leon but as they did not have any money to make the journey to Tokyo, they did not go there besides the fact which they noted that the taking of the rleposition was not at all authorized by the trial Court in 1\laniln for Juan's attorney also forgot to secure that authority thru a motion; therefore, after the deposition had been taken in Tokyo and trial came to be he!d in Manila, Leon's attorney objected to its admission for said lack of previous authorization from the trial court. How do you decide the question? V. (a) What difference is there between manner of service of summons and that of subpo.ena and what is the reason fo1· the difference? (b) What do you mea n by an ordet' 1umc pro time? What rule, if any, authorizes its issuance? (c) Distinguish, if there is any distinction, between a restraint order and a pi·eiiminary injunction. VI. An American sailor having arrived at the port of Manila, goes on shore leave; he is seen by a taxi dancer at a night club and she entices him to go with her to a pleasure house and while there, the taxi dances robs him of his money; the sailor complains to the police who arrest the dancer and F'iscal charges her i11 the Municipal Couit and sha is there convicted hut she appeals to the Court of First ln!>tance ::.nt pending appeal, the American £ailor leaves for Americ3 F-O that when trial was called in the Court of First Instance, he was no longer available; therefore, the Fiscal soug1lt the presentation of the notes taken by the Municipal Judge during the trial of the case as secondary proof of the testimony of the sailor; these notes were attached to the record and the Municipal Judge could be called to identify them; the Fiscal contended that they could be admitted because there were no stenographic notes since the Municipal Conrt is not a Court of record. Defense however contends that the procedure was wrong and the evidence incompetent. How would you decide the question of the admissibility of said notes of the Muncip!!.l Lludge? VII. Conrado loaned money to Dionisio who executed a deed of real estate mortgage unto Conrado and the mortgage was duly registered, but when the loan fell due, an<l notwithstanding the demands of Conrado, the Joan was not paid; t-herefore, Conrado sent a final letter of demand unto Dionisio informing him that should he not still pay, Conrado would file action to collect ; upon receipt of that letter, Dionisio in turn filed an action to annul the mortgage on the ground of lack of consideration. (a) If, in such a situation, Conrado filed an answer to the complaint for annulment, setting forth his defenses and then pending the case, he institute<! an independent action for foreclosure of the mortgage, but Dioni£io moved to dsmiss it on the ground of pending act-ion, how would you rule in the motion to dismiss? (b) If Comado did not file the independent action for foreclosure but just presented his answe1· with defenses in the complaint for annulment and the case was decided in his favor, declaring the mortgage valid, and after the judgment had become final, it was then when Conrado filed his complaint for foreclosure but Dionisio met it with a motion to dismiss on the ground of ba.r by former judgment contending thP.t Conrado had in his favor an altern3tive cause and failed to avail of the right to foreclose by filing it as a counterclaim in the action to annul, how would you decide Dionisio's motion to dismiss? VIII. Nestor brought an action to foreclose a mortgage on a par· eel of land against Olimpia; the latter upon receipt of the summons realized that the document was a forgery; there· fore, he went to the Fiscal and complaineci to him, and the F'iscal instituted after investigation, a. criminal charge for falsificat ion against Nestor but the crntention of Nestor was that the civil case was a prejudicial question and should first be tried and the Court sustained him; and the finat judgment in the foreclosure suit was that the documenL was forged as contended by Olimpio; whereupon, the Fiscal moved to hear the crimjnal case, but unfortunately, Olimpia died in the meantime, and so the Fiscal sou;:tht to pr('· sent his testimony in the civil case in which he testified that the signature in the deed was a fo1·gery, and alw the decision in the civil ca$e upholding the contention of Olimpio that it was indeed a forgery, but the defense of Nestor objects to the competency of both proofs contending that they were incompetent, besides being irrelevant in the crimina.l case. How do you <lecide? IX. In a criminal action for serious physical inJui·ies thru reek• less imprudence, t he defendtmt chauffeur was convicted and sentenced to pay damages to the injured party; the latter secured execution against the chauffeur but he turned out to be insolvent according to the sheriff's return; whereupon, the offended party filed a civil action for subsidiary civil liability against the employer of the chnuffeu t· which wcs a. public service transportation company and in tlH! trial of the civil case, attorney of pla.intiff presented the same sheriff's i·eturn to pro".e the insolvency of the chauffrur without calting the sheriff himself to testify on how he came to find out that the cha.uffeur was insolvent; therefore, attorney for defendant transportation company objected to the admission of the return calling the attention of the Court tha!. the sheriff was present and could be called and cross-examined and the return was therefore clearly hea.rsay anti deprived him of the chance to cross examine. How do you decide on the admissibility of the return? X. (a) Is there any difference or there is none between "public document" and "official entry?" Expbin you1· answer. (b) When do the Rules permit and when do they not permit, proof of bad character by !)articular wrongful acts? Give t.he reason for the Rules. LEGAL ETHICS '"d PRACTICAL EXERCISES I. (a) What are the duties of an attorney? (b) According to the Supteme Court, what ari, the circumstances to be considered in determining the compensation of a.n attorney? IL According to the Canons of Legal Elhics: (a) H ow far may a lawyer go in supporting a client's cause? (b) What is the lawyer's duty in its last analysis? lll. Acting upon a complaint filed by three leading bar associations to the effect that evil practices, more specifically, "ambulance chasing" or pen;onal injuries or damage suits, seemed to be spreading to demoralizing extent, with the consequence that the poor were 01ipressed and the ignornnt taken advantage of, retainers often on extra.vagant terms solicited and paid for, a practice not limited to lawyers for claimants but likewise 'availed of by lawyers for defendant!i and with the added result that the calendars became congestecl and clogged, the Supreme Court designated the Solicito1 General to conduct an investigation of such practices described in the petition and :my other practice obstructive or hannful to the administration of justice, wit.h instruction to ma.kc a report and recommendation within ninety day::, One of the witnesses cited wa.s a lawyer, X, a member of the Bar for more than twenty years, who was asked amon ~ others, who were his law office associates and' employees, whether he had been paying police officials and hospital personnel for referring cases to him. · He was also asked to produce all his records of litigations for damage suits and and to explain if some of those records were missing. Law(Con tinued next page) Page 286 LAWYERS JOURNAL September 30, 1962
pages: 285-286