BAR EXAM QUESTION NO.

1(2016 CRIMINAL LAW)

Explain the application of the Indeterminate Sentence Law (ISL). (5%)

SUGGESTED ANSWER:

APPLICATION OF INDETERMINATE SENTENCE LAW EXPLAINED

In the case of People vs. Gabres , the Court has had occasion to so state that-

Under the Indeterminate Sentence Law, the maximum term of the penalty shall be that
which, in view of the attending circumstances, could be properly imposed under the Revised
Penal Code, and the minimum shall be within the range of the penalty next lower to that
prescribed for the offense. The penalty next lower should be based on the penalty
prescribed by the Code for the offense, without first considering any modifying circumstance
attendant to the commission of the crime.

The determination of the minimum penalty is left by law to the sound discretion of the court
and it can be anywhere within the range of the penalty next lower without any reference to
the periods into which it might be subdivided. The modifying circumstances are considered
only in the imposition of the maximum term of the indeterminate sentence. The fact that
the amounts involved in the instant case exceed P22,000.00 should not be considered in the
initial determination of the indeterminate penalty; instead, the matter should be so taken as
analogous to modifying circumstances in the imposition of the maximum term of the full
indeterminate sentence. This interpretation of the law accords with the rule that penal laws
should be construed in favor of the accused. Since the penalty prescribed by law for the
estafa charge against accused-appellant is prision correccional maximum to prision mayor,
minimum, the penalty next lower would then be prision correccional minimum to medium
.Thus, the minimum term of the indeterminate sentence should be anywhere within six (6)
months and one (1) day to four (4) years and two (2) months . . .(People v. Saley; GR
121179, July 2, 98)

BAR EXAM QUESTION NO.2 (2016 CRIMINAL LAW)

[a] Define malfeasance, misfeasance and nonfeasance. (2.5%)

[b] Differentiate wheel conspiracy and chain conspiracy. (2.5%)

SUGGESTED ANSWER:

(a) MALFEASANCE means the Commission of an Unlawful Act. The term is generally
made applicable to certain unlawful acts which are actionable per se. It does not require any
proof of intention, negligence or malice on the part of the defendant.
For EXAMPLE, the act of trespass, the plaintiff can take action against the trespasser for his
mere act of trespass, through there might be negligence or malice on the part of the
trespasser.

MISFEASANCE means the Improper performance of some lawful act. Under certain a
particular circumstances a man has a duty to perform ac act in manner, if he fails to perform
that act in a proper manner, it will be an act of misfeasance. The tort of negligence may
arise from the improper performance of some lawful act, i.e. act of misfeasance.

For EXAMPLE, if doctor performs an operation by using rusted tools or leaving an alien object
in the stomach during procedure. Generally, a civil defendant will be liable for misfeasance if
the defendant owed a duty of care toward the plaintiff, the defendant breached that duty of
care by improperly performing a legal act, and the improper performance resulted in harm to
the plaintiff. For example, assume that a janitor is cleaning a restroom in a restaurant. If he
leaves the floor wet, he or his employer could be liable for any injuries resulting from the wet
floor. This is because the janitor owed a duty of care toward users of the restroom, and he
breached that duty by leaving the floor wet.

NONFEASANCE means Failure or Omission to perform some act when there was an
obligation to perform that act. The tort of negligence may arrive from nonfeasance. When a
person owes a duty towards another to do particular act, a failure to do that act may result
in an injury to that another, thus the nonfeasance of such an act gives rise to a cause of
action

EXAMPLE: A company hires a catering company to provide drinks and food for a retirement
party. If the catering company doesnt show up , its considered nonfeasance . If the catering
company shows up but only provides drinks (and not the food, which was also paid for), its
considered misfeasance . If the catering company accepts a bribe from its clients
competitor to under cook the meat, thereby giving those present food poisoning, its
considered malfeasance.

(b) A wheel conspiracy consists of a single conspirator, generally the ringleader who is
interconnected to every other co-conspirator. The ringleader is the hub; the other co-
conspirators are the spokes of the wheel. An example of a wheel conspiracy would be a mob
boss linked to individual members of the mob following his or her commands.

A chain conspiracy consists of co-conspirators connected to each other like links in a chain
but without a central interconnected ringleader. An example of a chain conspiracy is a
conspiracy to manufacture and distribute a controlled substance, with the manufacturer
linked to the transporter, who sells to a large-quantity dealer, who thereafter sells to a
smaller-quantity dealer, who sells to a customer. Whether the conspiracy is wheel, chain, or
otherwise, if the jurisdiction has a statute or common-law rule that each member does not
need to personally know every other member as discussed previously, the co-conspirators
may be criminally responsible for the conspiracy and the crime(s) it furthers.