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mbe_8 | mbe | 8 | 3 | MBE-1972-78-part2 | nan | 9 | A water pipe burst in the basement of Supermart, a grocery store, flooding the basement and damaging cases of canned goods on the floor. The Plumbing contractor's workmen, in repairing the leak, knocked over several stacks of canned goods in cases, denting the cans. After settling its claims against the landlord for the water leak and against the plumbing contractor for the damage done by his workmen, Supermart put the goods on special sale. Four weeks later Dotty was shopping in Supermart. Several tables in the market were covered with assorted canned foods, all of which were dirty and dented. A sign on each of the tables read: "Damaged Cans-Half Price." Dotty was having Guest for dinner that evening and purchased two dented cans of tuna, packed by Canco, from one of the tables displaying the damaged cans. Before Guest arrived, Dotty prepared a tuna casserole which she and Guest ate. Both became ill and the medical testimony established that the illness was caused by the tuna's being unfit for consumption. The tuna consumed by Dotty and Guest came from the case that was at the top of one of the stacks knocked over by the workmen. The tuna in undamaged cans from the same Canco shipment was fit for consumption. | If Guest asserts a claim against Dotty, Dotty most likely will | be held strictly liable in tort for serving spoiled tuna | be held liable only if she were negligent | not be held liable unless her conduct was in reckless disregard of the safety of Guest | not be held liable because Guest was a social visitor | B | The Indiana courts have apparently never squarely addressed the precise issue presented here. But it has long been the rule in Indiana that the duty of care owed by a real-property owner to his social guests requires only that the host refrain from willfully, wantonly or intentionally injuring his social guests. Swanson v. Shroat, 169 Ind.App. 80, 345 N.E.2d 872 (1976); Pierce v. Walters, 152 Ind.App. 321, 283 N.E.2d 560 (1972); Fort Wayne National Bank v. Doctor, 149 Ind.App. 365, 272 N.E.2d 876 (1971). | mbe_5 | 5-train | [
520
]
|
mbe_20 | mbe | 20 | 9 | MBE-1972-78-part2 | nan | 21 | nan | Lord leased a warehouse building and the lot on which it stood to Taylor for a term of ten years. The lease contained a clause prohibiting Taylor from subletting his interest. Can Taylor assign his interest under the lease? | Yes, because restraints on alier ation of land are strictly construed. | Yes, because disabling restraints on alienation of land are invalid. | No, because the term "subletting" includes "assignment" when the term is employed in a lease. | No. because, even in the absence of an express prohibition on assignment, a tenant may not assign without the landlord's permission. | A | A restraint on alienation, in the law of real property, is a clause used in the conveyance of real property that seeks to prohibit the recipient from selling or otherwise transferring their interest in the property. Under the common law such restraints are void as against the public policy of allowing landowners to freely dispose of their property. Perhaps the ultimate restraint on alienation was the fee tail, a form of ownership which required that property be passed down in the same family from generation to generation, which has also been widely abolished | mbe_17 | 17-train | [
953
]
|
mbe_34 | mbe | 34 | 19 | MBE-1972-78-part2 | nan | 35 | nan | "A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law." This quotation is basically a statement of the | M'Naghten Rule | right and wrong plus irresistible impulse test | Durham Rule | Model Penal Code provision | D | The Model Penal Code presents a distinct formulation of the insanity defense. Under this test, an individual is not liable for criminal offenses if, when he or she committed the crime or crimes, the individual suffered from a mental disease or defect that resulted in the individual lacking the substantial capacity to appreciate the wrongfulness of his or her actions or to conform his or her actions to requirements under the law. | mbe_30 | 30-train | [
1147,
11392,
11836
]
|
mbe_42 | mbe | 42 | 25 | MBE-1972-78-part2 | nan | 43 | nan | Defendant was driving his automobile at a legal speed in a residential zone. A child darted out in front of him and was run over and killed before Defendant could prevent it. Defendant's driver's license had expired three months previously; Defendant had neglected to check when it was due to expire. Driving without a valid license is a misdemeanor in the jurisdiction. On a charge of manslaughter, Defendant should be found | guilty under the misdemeanor-manslaughter rule | guilty because the licensing requirements are to protect life, and failure to obey is negligence | not guilty because the offense was not the proximate cause of the death | not guilty because there was no criminal intent | C | To find the defendant guilty of involuntary manslaughter you must be convinced beyond a reasonable doubt (that) the act or acts charged were the proximate cause of the death under such circumstances as to constitute involuntary manslaughter.
By the proximate cause of the death is meant that which, in natural and continued sequence, or chain of events, unbroken by an efficient intervening cause, aids in producing the death, and without which it would not have occurred. | mbe_38 | 38-train | [
9935
]
|
mbe_45 | mbe | 45 | 28 | MBE-1972-78-part2 | nan | 46 | nan | The police, answering a complaint about noise, arrived at Sam's apartment and found Sam's wife dead on the living room floor. One of the officers turned to Sam and said, "What happened?" Sam replied, "She was a bitch and I took care of her." At Sam's trial his statement should be ruled | Admissible because the statement was part of the res gestae | admissible because the statement was made at the scene, was essentially volunteered, and was not a product of a custodial interrogation | inadmissible because the statement is ambiguous and not necessarily incriminatory | inadmissible because Sam was effectively in police custody and should have been given the Miranda warnings | B | Custodial interrogation is “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” Id. at 444, 86 S.Ct. 1602. And interrogation includes not only “express questioning,” but also “any words or actions ... that the police should know are reasonably likely to elicit an incriminating response from the suspect.” Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980). Absent any exception to the Miranda requirement, the police's failure to administer the warnings before a defendant is subjected to custodial interrogation requires the exclusion of his statements from evidence. See Miranda, 384 U.S. at 444, 86 S.Ct. 1602; Berkemer v. McCarty, 468 U.S. 420, 429, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984). | mbe_41 | 41-train | [
786,
959
]
|
mbe_63 | mbe | 63 | 38 | MBE-1972-78-part3 | nan | 14 | Si was in the act of siphoning gasoline from Neighbor's car in Neighbor's garage and without his consent when the gasoline exploded and a fire followed. Rescuer, seeing the fire, grabbed a fire extinguisher from his car and put out the fire, saving Si's life and Neighbor's car and garage. In doing so, Rescuer was badly burned. | If Rescuer asserts a claim against Si for personal injuries, Rescuer will | prevail, because he saved Si's life | prevail, because Si was at fault in causing the fire | not prevail, because Rescuer knowingly assumed the risk | not prevail, because Rescuer's action was not a foreseeable consequence of Si's conduct | B | Where a person, by his negligence, creates a situation that calls for rescue, he is subject to two duties – a primary duty to the imperiled victim, and a secondary duty to the rescuer. The rationale behind this is simple: although the wrongdoer might owe no duty of care to the rescuer in the first place, the wrongdoer’s negligence has created a dangerous situation which invites the rescue and the wrongdoer ought, as a reasonable man, to have foreseen the likelihood of intervention by a rescuer. | mbe_54 | 54-train | [
1725
]
|
mbe_64 | mbe | 64 | 38 | MBE-1972-78-part3 | nan | 15 | Si was in the act of siphoning gasoline from Neighbor's car in Neighbor's garage and without his consent when the gasoline exploded and a fire followed. Rescuer, seeing the fire, grabbed a fire extinguisher from his car and put out the fire, saving Si's life and Neighbor's car and garage. In doing so, Rescuer was badly burned. | If Rescuer asserts a claim against Neighbor personal injuries, Rescuer will | prevail, because he saved Neighbor's property | prevail, because he acted reasonably in an emergency | not prevail, because Neighbor was not at fault | not prevail, because Rescuer knowningly assumed the risk | C | An injury that occurs during a rescue effort should be attributed to the party that exposed the person who required assistance to the danger.1 One who is injured while rescuing another can recover to the same extent as the person being rescued. | mbe_55 | 55-train | [
1725
]
|
mbe_79 | mbe | 79 | 49 | MBE-1972-78-part3 | nan | 30 | nan | Defendant sold heroin to Morgan. Morgan was later stopped by police for speeding. The police searched Morgan's car and found the heroin concealed under the rear seat. Defendant is charged with illegally selling heroin. Defendant's motion to prevent introduction of the heroin into evidence will most probably be | granted, because the heroin was not in plain view | granted, because the scope of the search was excessive | denied, because Defendant has no standing to object to the search | denied, because the search was proper as incident to a valid full custodial arrest | C | only persons whose privacy or property interests are violated may object to a search on Fourth Amendment grounds; exerting control and oversight over property by virtue of participation in a criminal conspiracy does not alone establish such interests | mbe_64 | 64-train | [
12888
]
|
mbe_110 | mbe | 110 | 65 | MBE-1972-78-part4 | nan | 10 | While Defendant was in jail on a procuring charge, his landlord called the police because rent had not been paid and because he detected a disagreeable odor coming from Defendant's apartment into the hallways. The police officer who responded to the call knew that Defendant was in jail. He recognized the stench coming from Defendant's apartment as that of decomposing flesh and, without waiting to obtain a warrant and using the landlord's passkey, entered the apartment with the landlord's consent. The lease to these premises gave the landlord a right of entry, at any reasonable hour, for the purpose of making repairs. The police officer found a large trunk in the bedroom which seemed to be the source of the odor. Upon breaking it open, he found the remains of Rosette, Defendant's former mistress. | If Defendant undertakes to challenge the search of his apartment, he has | standing because the items seized in the search were incriminating in nature | standing because he still has a sufficient interest in the apartment even while in jail | no standing because his landlord authorized the search | no standing because he was out of the apartment when it occurred and had not paid his rent | B | The standing inquiry consists of three elements: (1) the plaintiff must have personally suffered a “concrete and particularized ... actual or imminent” injury, (2) that is fairly traceable to the challenged actions of the defendant, and (3) there is a substantial likelihood the requested relief will remedy the alleged injury. Meyers v. JDC/Firethorne, Ltd., No. 17-0105, ––– S.W.3d ––––, ––––, 2018 WL 2749769, at *5 (Tex. June 8, 2018). Each party must establish standing to bring each of its claims, meaning courts assess standing “claim by claim.” Heckman, 369 S.W.3d at 150.
Lindig v. Pleasant Hill Rocky Cmty. Club, No. 03-17-00388-CV, 2018 WL 3447719, at *2 (Tex. App. July 18, 2018) | mbe_88 | 88-train | [
12620
]
|
mbe_119 | mbe | 119 | 71 | MBE-1972-78-part4 | nan | 19 | Bill and Chuck hated Vic and agreed to start a fight with Vic and, if the opportunity arose, to kill him. Bill and Chuck met Vic in the street outside a bar and began to push him around. Ray, Sam, and Tom. who also hated Vic, stopped to watch. Ray threw Bill a knife. Sam told Bill, ''Kill him." Tom. who made no move and said nothing, hoped that Bill would kill Vic with the knife. Chuck held Vic while Bill stabbed and killed him. | On a charge of murdering Vic, Sam is | not guilty, because his words did not create a ''clear and present danger" not already existing | not guilty, because mere presence and oral encouragement, whether or not he has the requisite intent, will not make him guilty as an accomplice | guilty. because. with the intent to have Bill kill Vic. he shouted encouragement to Bill | guilty. because he aided and abetted the murder through his mere presence plus his intent to see Vic killed | C | ‘Encouragement,’ for the purpose of determining accomplice liability, is the equivalent of conduct that by any means countenances or approves the criminal actions of others.” Id. | mbe_96 | 96-train | [
773
]
|
mbe_139 | mbe | 139 | 85 | MBE-1972-78-part4 | nan | 40 | Johnson took a diamond ring to a pawnshop and borrowed $20 on it. It was agreed that the loan was to be repaid within 60 days and if it was not, the pawnshop owner. Defendant, could sell the ring A week before expiration of the 60 days. Defendant had an opportunity to sell the ring to a customer for S125. He did so, thinking it unlikely that Johnson would repay the loan and if he did, Defendant would be able to handle him somehow, even by paying him for the ring if necessary. Two days later. Johnson came in with the money to reclaim his ring. Defendant told him that it had been stolen when his shop was burglarized one night and that therefore he was not responsible for its loss. Larceny, embezzlement, and false pretenses are separate crimes in the jurisdiction. | It is most likely that Defendant has committed which of the following crimes?. | Larceny | Embezzlement | Larceny by trick | Obtaining by false pretenses | B | Embezzlement is the “ ‘fraudulent appropriation of property by a person to whom such property has been entrusted or into whose hands it has lawfully come.’ ” Brady v. McAllister (In re Brady), 101 F.3d 1165, 1172–73 (6th Cir.1996) (citing Gribble v. Carlton (In re Carlton), 26 B.R. 202 (Bankr.M.D.Tenn.1982)). | mbe_110 | 110-train | [
8074
]
|
mbe_140 | mbe | 140 | 85 | MBE-1972-78-part4 | nan | 41 | Johnson took a diamond ring to a pawnshop and borrowed $20 on it. It was agreed that the loan was to be repaid within 60 days and if it was not, the pawnshop owner. Defendant, could sell the ring A week before expiration of the 60 days. Defendant had an opportunity to sell the ring to a customer for S125. He did so, thinking it unlikely that Johnson would repay the loan and if he did, Defendant would be able to handle him somehow, even by paying him for the ring if necessary. Two days later. Johnson came in with the money to reclaim his ring. Defendant told him that it had been stolen when his shop was burglarized one night and that therefore he was not responsible for its loss. Larceny, embezzlement, and false pretenses are separate crimes in the jurisdiction. | Suppose in the case above. instead of denying liability, Defendant told Johnson the truththat he sold the ring because he thought Johnson would not reclaim it-and offered to give Johnson $125. Johnson demanded his ring. Defendant said, 'Look buddy, that's what I got for it and it's more than it's worth," John reluctantly took the money. Defendant could most appropriately be found guilty of | larceny | embezzlement | false pretenses | none of the above | B | Larceny is “the fraudulent and wrongful taking and carrying away of the property of another with intent to convert the property to the taker's use without the consent of the owner.”16 The difference between these two types of misconduct is that, with embezzlement, the debtor initially acquires the property lawfully whereas, with larceny, the property is unlawfully obtained.17 | mbe_111 | 111-train | [
8074
]
|
mbe_148 | mbe | 148 | 90 | MBE-1972-78-part4 | nan | 49 | nan | Mrs. Dennis' 12-year-old daughter, Gala, had some difficulty getting along with other children in the neighborhood, especially with the younger ones. Thinking the experience would be good for her. Mrs. Dennis recommended Gala to Mr. Parrent as a baby-sitter for his five-year-old boy, Robby, but did not mention Gala's difficulties or her lack of prior experience as a babysitter. The Dennises and the Parrents were longstanding social acquaintances. On the evening Gala was to sit, the Parrents told Gala that she should treat Robby firmly, but that it would be preferable not to spank him since he did not take kindly to it. They did not tell Gala they had experienced trouble retaining baby-sitters because of Robby's temper tantrums. Later in the evening when Robby became angry upon being told to go to his room for being naughty. Gala spanked him, but only moderately hard. Robby then threw a hardbacked book at Gala, hitting her in the eye. As Gala tried to catch Robby to take him to his room, Robby fled around the house and out the back door, knocking over and breaking an expensive lamp. The back yard was completely dark. Gala heard Robby screaming and banging at the back door, which had closed and locked automatically, but she did nothing. After twenty minutes had passed, she heard a banging and crying at the front door, but still she did nothing. Then the noise stopped. In a few minutes Gala went outside and found Robby lying on the steps unconscious and injured. If a claim is asserted on behalf of Robby against Mrs. Dennis for damages based on Gala's conduct, Mrs. Dennis will probably be liable. because | parents are vicariously liable for the intentional torts of their children | she has a nondelegable duty to control the actions of her child | responded superior applies | she was negligent | D | Mere knowledge by the parent of a child's mischievous and reckless, heedless or vicious disposition is not of itself sufficient to impose liability with respect to torts of a child. See Bieker v. Owens, 234 Ark. 97, 350 S.W.2d 522, 525 (1961); Dinsmore–Poff v. Alvord, 972 P.2d 978, 981, 986 (Alaska 1999). Specifically, the parent must know, or should have known, that the child had a habit of engaging in the particular act or course of conduct which led to the plaintiff's injury. See Dinsmore–Poff, 972 P.2d at 986; Barth v. Massa, 201 Ill.App.3d 19, 146 Ill.Dec. 565, 558 N.E.2d 528, 534 (1990); Skaare, supra, at 95, 97. Simply put, no parental liability exists without notice of a specific type of harmful conduct and an opportunity to interfere with it. Barth, 558 N.E.2d at 535. | mbe_117 | 117-train | [
520
]
|
mbe_163 | mbe | 163 | 100 | MBE-1978-83-part1 | nan | 12 | nan | John was fired from his job. Too proud to apply for unemployment benefits, he used his savings to feed his family. When one of his children became ill, he did not seek medical attention for the child at a state clinic because he did not want to accept what he regarded as charity. Eventually, weakened by malnutrition, the child died as a result of the illness. John has committed | murder | involuntary manslaughter | voluntary manslaughter | no form of criminal homicide | B | Voluntary manslaughter is an unlawful killing done without malice, in the heat of passion, or in unreasonable belief in the necessity of self-defense. | mbe_128 | 128-train | [
772
]
|
mbe_170 | mbe | 170 | 105 | MBE-1978-83-part1 | nan | 19 | nan | A leading question is LEAST likely to be permitted over objection when | asked on cross -examination of an expert witness | asked on direct examination of a young child | asked on direct examination of a disinterested eyewitness | related to preliminary matters such as the name or occupation of the witness | C | A party is permitted to ask leading questions on direct examination when a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, and there is no limit on the number of leading questions the party may ask. | mbe_135 | 135-train | [
4000,
12613
]
|
mbe_198 | mbe | 198 | 122 | MBE-1978-83-part1 | nan | 48 | nan | In which of the following cases is a conviction of the named defendant for robbery LEAST likely to be upheld? | Johnson forced his way into a woman's home, bound her, and compelled her to tell him that her jewelry was in an adjoining room. Johnson went to the room, took the jewelry, and fled. | A confederate of Brown pushed a man in order to cause him to lose his balance and drop his briefcase. Brown picked up the briefcase and ran off with it. | Having induced a woman to enter his hotel room, Ritter forced her to telephone her maid to tell the maid to bring certain jewelry to the hotel. Ritter locked the woman in the bathroom while he accepted the jewelry from the maid when she arrived. | Hayes unbuttoned the vest of a man too drunk to notice and removed his wallet. A minute later, the victim missed his wallet and accused Hayes of taking it. Hayes pretended to be insulted, slapped the victim, and went off with the wallet. | D | “Robbery” is the felonious taking of any article of value, in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear. | mbe_163 | 163-train | [
5032,
7703
]
|
mbe_250 | mbe | 250 | 150 | MBE-1978-83-part1 | nan | 101 | nan | Al and Bill are identical twins. Al, angry at David, said, "You'd better stay out of my way. The next time I find you around here, I'll beat you up." Two days later, while in the neighborhood, David saw Bill coming toward him. As Bill came up to David, Bill raised his hand. Thinking Bill was Al and fearing bodily harm, David struck Bill. If Bill asserts a claim against David and David relies on the privilege of self-defense, David will | not prevail, because Bill was not an aggressor | not prevail unless Bill intended his gesture as a threat | prevail if David honestly believed that Bill would attack him | prevail only if a reasonable person under the circumstances would have believed that Bill would attack him | D | “[T]he questions of the reasonableness of a defendant's belief that self-defense is necessary and of the reasonableness of the actions taken in self-defense do not call for an evaluation of the defendant's subjective state of mind, but for an objective evaluation of the defendant's assertedly defensive acts. California law expresses the criterion for this evaluation in the objective terms of whether a reasonable person, as opposed to the defendant, would have believed and acted as the defendant did. We hold that expert testimony about a defendant's state of mind is not relevant to the reasonableness of the defendant's self-defense.” (People v. Aris, supra, 215 Cal.App.3d at p. 1196, 264 Cal.Rptr. 167, italics in original.) | mbe_200 | 200-train | [
741
]
|
mbe_254 | mbe | 254 | 153 | MBE-1978-83-part1 | nan | 105 | nan | Tom had a heart ailment so serious that his doctors had concluded that only a heart transplant could save his life. They therefore arranged to have him flown to Big City to have the operation performed. Dan, Tom's nephew, who stood to inherit from him, poisoned him. The poison produced a reaction which required postponing the journey. The plane on which Tom was to have flown crashed, and all aboard were killed. By the following day, Tom's heart was so weakened by the effects of the poison that he suffered a heart attack and died. If charged with criminal homicide, Dan should be found | guilty | not guilty, because his act did not hasten the deceased's death, but instead prolonged it by one day | not guilty, because the deceased was already suffering from a fatal illness | not guilty, because the poison was not the sole cause of death | A | “Murder” is the killing of one human being by another with the requisite malevolent state of mind and without justification, excuse, or mitigation. | mbe_204 | 204-train | [
772
]
|
mbe_302 | mbe | 302 | 176 | MBE-1978-83-part1 | nan | 154 | In the application for a life insurance policy, Mary answered in the negative the question, "Have you ever had any heart disease?" Both the application and the insurance policy which was issued provided: "Applicant warrants the truthfulness of the statements made in the application and they are made conditions to the cont ract of insurance." Unknown to Mary, she had had a heart disease at a very early age. The policy provided that the proceeds were not to be paid over to the named beneficiary, Mary's daughter, Joan, "until she reaches the age of 21." No contingent beneficiary was named in the policy. Mary was killed in an automobile accident two months after the policy was issued. Joan died one month later at the age of 19 from injuries incurred in the same accident. | If the question is raised in an action against the insurance company, how is the court likely to construe the clause dealing with the truthfulness of statements in the application? | The clause is a condition, and because the condition was not met, the company will not be liable. | The clause is a condition, but it will be interpreted to mean, "truthfulness to the best of my knowledge." | The clause is not a condition, and therefore the company may be liable even though Mary's statement was not true. | The clause is not a condition but is a promise, and therefore the company will have a cause of action against Mary 's estate for any losses it suffered because of Mary 's misstatement. | B | “A condition precedent is an act or event, other than a lapse of time, which, unless the condition is excused, must occur before a duty to perform a promise in the agreement arises” (Oppenheimer & Co., 86 N.Y.2d at 690, 636 N.Y.S.2d 734, 660 N.E.2d 415 [internal quotation marks omitted]). An express condition -- that is, one agreed to by the parties that must be literally performed (substantial compliance will not suffice) -- must be reflected in clear, express language (see id. at 691, 636 N.Y.S.2d 734, 660 N.E.2d 415); “[c]ourts are reluctant to interpret a contractual clause as a condition precedent in the absence of ... unmistakable conditional language” ( VXI Lux Holdco S.A.R.L. v. SIC Holdings, LLC, 171 A.D.3d 189, 195, 98 N.Y.S.3d 1 [1st Dept. 2019]). | mbe_239 | 241-train | [
3925,
11638
]
|
mbe_303 | mbe | 303 | 176 | MBE-1978-83-part1 | nan | 155 | In the application for a life insurance policy, Mary answered in the negative the question, "Have you ever had any heart disease?" Both the application and the insurance policy which was issued provided: "Applicant warrants the truthfulness of the statements made in the application and they are made conditions to the cont ract of insurance." Unknown to Mary, she had had a heart disease at a very early age. The policy provided that the proceeds were not to be paid over to the named beneficiary, Mary's daughter, Joan, "until she reaches the age of 21." No contingent beneficiary was named in the policy. Mary was killed in an automobile accident two months after the policy was issued. Joan died one month later at the age of 19 from injuries incurred in the same accident. | If no objection is made concerning Mary's misstatement in the application, how is the court most likely to construe the clause dealing with the payment of the proceeds to Joan? | Joan's reaching the age of 21 is a constructive condition concurrent. | Joan's reaching the age of 21 is a condition precedent to the insurance company's duty to pay anyone. | Joan's reaching the age of 21 has legal significance only with respect to the time of payment. | Joan's reaching the age of 21 has no legal significance. | C | Contingent beneficiary under life policy was not entitled to policy proceeds upon death of insured, where primary beneficiary, though disqualified from receiving proceeds by virtue of fact he had murdered insured, survived insured, and policy lacked specific provisions defining term contingent beneficiary. | mbe_240 | 242-train | [
3921,
12011
]
|
mbe_304 | mbe | 304 | 177 | MBE-1978-83-part1 | nan | 156 | Defendant became intoxicated at a bar. He got into his car and drove away. Within a few blocks, craving another drink, he stopped ails car in the middle of the street, picked up a brick, and broke the display window of a liquor store. As he was reaching for a bottle, the night watchman arrived. Startled, Defendant turned, struck the watchman on the head with the bottle, killing him. Only vaguely aware of what was happening, Defendant returned to his car, consumed more liquor, and then drove off at a high speed. He ran a red light and struck and killed a pedestrian who was crossing the street. Relevant statutes define burglary to include "breaking and entering a building not used as a dwelling with the intent to commit a crime therein." Manslaughter is defined as the "killing of a human being in a criminally reckless manner." Criminal recklessness is "consciously disregarding a substantial and unjustifiable risk resulting from the actor's conduct." Murder is defined as "the premeditated and intentional killing of another or the killing of another in the commission of committing rape, robbery, burglary, or arson." Another statute provides that intoxication is not a defense to crime unless it negates an element of the offense. Defendant was charged with the murder of the watchman and manslaughter in the death of the pedestrian. Assume that he is tried separately on each charge. | At Defendant's trial for the murder of the watchman, the court should in substance charge the jury on the issue of the defense of intoxication that | intoxication is a defense to the underlying crime of burglary if Defendant, due to drunkenness, did not form an intent to commit a crime within the building, in which case there can be no conviction for murder unless Defendant intentionally and with premeditation killed the watchman | voluntary intoxication is no defense to the crime of murder | Defendant is guilty of murder despite his intoxication only if the state proves beyond a reasonable doubt that the killing of the watchman was premeditated and intentional | voluntary intoxication is a defense to the crime of murder if Defendant would not have killed the watchman but for his intoxication | A | Intoxication instruction given in state homicide prosecution did not create unconstitutional presumption of premeditation insofar as it stated there was no presumption that intoxicated person was incapable of premeditation. | mbe_241 | 243-train | [
12485
]
|
mbe_305 | mbe | 305 | 177 | MBE-1978-83-part1 | nan | 157 | Defendant became intoxicated at a bar. He got into his car and drove away. Within a few blocks, craving another drink, he stopped ails car in the middle of the street, picked up a brick, and broke the display window of a liquor store. As he was reaching for a bottle, the night watchman arrived. Startled, Defendant turned, struck the watchman on the head with the bottle, killing him. Only vaguely aware of what was happening, Defendant returned to his car, consumed more liquor, and then drove off at a high speed. He ran a red light and struck and killed a pedestrian who was crossing the street. Relevant statutes define burglary to include "breaking and entering a building not used as a dwelling with the intent to commit a crime therein." Manslaughter is defined as the "killing of a human being in a criminally reckless manner." Criminal recklessness is "consciously disregarding a substantial and unjustifiable risk resulting from the actor's conduct." Murder is defined as "the premeditated and intentional killing of another or the killing of another in the commission of committing rape, robbery, burglary, or arson." Another statute provides that intoxication is not a defense to crime unless it negates an element of the offense. Defendant was charged with the murder of the watchman and manslaughter in the death of the pedestrian. Assume that he is tried separately on each charge. | At Defendant's trial on the charge of manslaughter in the death of the pedestrian, his best argument would be that | he was too intoxicated to realize he was creating a substantial and unjustifiable risking the manner in which he was operating his car | when he got in the car his acts were not volun. tary because he was too intoxicated to know where he was or what he was doing | the pedestrian was contributorily negligent in failing to see Defendant's car approaching | he was too intoxicated to form any intent to voluntarily operate the automobile | A | Because DUI manslaughter is not a specific intent crime, but rather a general intent crime, voluntary intoxication is not a defense to DUI manslaughter. | mbe_242 | 244-train | [
12485
]
|
mbe_311 | mbe | 311 | 180 | MBE-1978-83-part1 | nan | 163 | Albert, the owner of a house and lot, leased the same to Barnes for a term of five years. In addition to the house, there was also an unattached, two-car brick garage located on the lot. Barnes earned his living as an employee in a local grocery store, but his hobby consisted of wood carving and the making of small furniture. Barnes installed a work bench, electric lights, and a radiator in the garage. He also laid pipes connecting the radiator with the heating plant inside the house. Thereafter Albert mortgaged the premises to Good Bank to secure a loan. Barnes was not given notice of the mortgage, but the mortgage was recorded. Still later, Albert defaulted on his mortgage payments, and Good Bank began foreclosure proceedings, as it was entitled to do under the terms of the mortgage. By this time Barnes's lease was almost ended. Barnes began the removal of the equipment he had installed in the garage. Good Bank brought an action to enjoin the removal of the equipment mentioned above. Both Barnes and Albert were named as defendants. | If the court refuses the injunction, it will be because | Barnes was without notice of the mortgage | the circumstances reveal that the equipment was installed for Barnes's exclusive benefit | in the absence of a contrary agreement, a residential tenant is entitled to remove any personal property he voluntarily brings upon the premises | the Statute of Frauds precludes the Bank from claiming any interest In the equipment | B | [F]ixtures and trade fixtures are differentiated under the law. A fixture is an item of personal property which is incorporated into or attached to realty. Nokomis Quarry Co. v. Dietl, 333 Ill.App.3d 480, 484, 266 Ill.Dec. 829, 775 N.E.2d 669 (2002). Because a fixture is deemed a part of the realty, it cannot be removed by a tenant without incurring liability. Nokomis, 333 Ill.App.3d at 484, 266 Ill.Dec. 829, 775 N.E.2d 669. A finding that certain property is a fixture requires ***682 **290 the court to consider a number of factors, including the agreement and intent of the parties, the nature of the attachment to the real estate, and whether the property can be removed without damage to the real estate. See Crane Erectors & Riggers, Inc. v. LaSalle National Bank, 125 Ill.App.3d 658, 662, 80 Ill.Dec. 945, 466 N.E.2d 397 (1984).
A trade fixture is an item of personal property that is attached to the realty by a tenant for the purpose of carrying on the tenant's business. Nokomis, 333 Ill.App.3d at 484, 266 Ill.Dec. 829, 775 N.E.2d 669. A tenant may only remove a trade fixture from the realty if doing so would not damage the realty. Nokomis, 333 Ill.App.3d at 484, 266 Ill.Dec. 829, 775 N.E.2d 669 (“[r]emoval is allowed only if, after the fixture is removed, the realty is the same as it was prior to the tenant's tenancy”). “In other words, a fixture is a trade fixture when the tenant leases property and adds a fixture for use in the tenant's business. Before the lease expires, the tenant would be allowed to remove a trade fixture, so long as the tenant did not damage the realty in the process of the removal.” Nokomis, 333 Ill.App.3d at 484, 266 Ill.Dec. 829, 775 N.E.2d 669. | mbe_246 | 248-train | [
12691
]
|
mbe_320 | mbe | 320 | 184 | MBE-1978-83-part1 | nan | 172 | Drew was tried for the July 21 murder of Victor. | Drew called Warren to testify to alibi. On cross-examination of Warren, the prosecutor asked, "Weren't you on the jury that acquitted Drew of another criminal charge?" The best reason for sustaining an objection to this question is that | the question goes beyond the scope of direct examination | the probative value of the answer would be outweighed by its tendency to mislead | the question is leading | prior jury service in a case involving a party renders the fitness incompetent | B | Evidence has “probative value” only if it has any tendency to establish or disestablish a legally necessary (material) proposition in the case through proof of the probability that the proposition is true (or untrue). See Berger, supra, ¶ 401; see also Epoch Producing Corp. v. Killiam Shows, 522 F.2d 737, 744 (2d. Cir.1975) (“An inference will be upheld only if application of common experience and logic to the underlying evidence will support it.”), cert. denied, 424 U.S. 955, 96 S.Ct. 1429, 47 L.Ed.2d 360 (1976). | mbe_254 | 256-train | [
12613
]
|
mbe_321 | mbe | 321 | 185 | MBE-1978-83-part1 | nan | 173 | nan | Re-direct examination of a witness must be permitted in which of the following circumstances? | To reply to any matter raised in crossexamination | only to reply to significant new matter raised in cross-examination | Only to reiterate the essential elements of the case | Only to supply significant information inadvertently omitted on direct examination | B | “[R]edirect examination is limited to matters which were first raised on cross-examination, to which the opposing party is merely responding on redirect.” Dobson v. United States, 426 A.2d 361, 365 (D.C.1981) (quoting Singletary v. United States, 383 A.2d 1064, 1073 (D.C.1978)); see Hilton v. United States, 435 A.2d 383, 389 (D.C.1981). “The reply on redirect may take the form of explanation, avoidance, or qualification of the new substantive facts or impeachment matters elicited by the cross-examiner.” 1 MCCORMICK ON EVIDENCE § 32, at 119–20 (John W. Strong ed., 5th ed.1999) (citations omitted). | mbe_255 | 257-train | [
4000,
6080
]
|
mbe_331 | mbe | 331 | 192 | MBE-1978-83-part1 | nan | 183 | nan | Darlene was arrested on a murder charge. She was given Miranda warnings and refused to talk further with the police. At trial, she testified in her own defense. She recounted in some detail her whereabouts on the day of the ci ime and explained why she could not have committed the crime. On cross-examination and over defense objection, the prosecution emphasized the fact that she did not tell the police this story following her arrest. The prosecution thereby suggested that her testimony was false. Defendant was convicted. On appeal, she claims error in the prosecutor's cross-examination. Her conviction will most probably be | affirmed, because defendant's silence at time of arrest is tantamount to a prior inconsistent statement, giving rise to an inference that the story was fabricated | affirmed, because defendant's silence was not used as direct evidence but only for impeachment, a purpose consistent with legitimate cross-examination | reversed, because post-arrest silence constituted defendant's exercise of her Miranda rights and use of that silence against her at trial violated due process | reversed, because to require the defense to acquaint the prosecution with defendant's testimony prior to trial would constitute unconstitutional pre-trial discovery | C | A waiver of Miranda rights may be implied through the defendant's silence, coupled with an understanding of his rights and a course of conduct indicating waiver. | mbe_264 | 266-train | [
959
]
|
mbe_382 | mbe | 382 | 215 | MBE-1978-83-part5 | nan | 34 | nan | The most generally accepted basis on which a court will hold that X has a legal duty to aid another is the recognition by X that there is immediate danger of serious harm to | another human being from a stranger's wrongful conduct | his neighbor from a stranger's wrongful conduct | his cousin from a stranger's wrongful conduct | another human being from X's own nonnegligent conduct | D | “ ‘Duty is a legal conclusion about relationships between individuals, made after the fact.... The nature of the duty, and the specific persons to whom it is owed, are determined by the circumstances surrounding the conduct of the individual.’ ” Clohessy v. Bachelor, 237 Conn. 31, 45, 675 A.2d 852 (1996). Although one generally has no legal duty to aid another in peril, even when the aid can be provided without danger or inconvenience to the provider, there are four widely recognized situations in which the failure to act may constitute breach of a legal duty: (1) where one stands in a certain relationship to another; (2) where a statute imposes a duty to help another; (3) where one has assumed a contractual duty; and (4) where one voluntarily has assumed the care of another. 1 W. LaFave & A. Scott, supra, § 3.3(a)(1)–(4), pp. 284–87.14 The state argues that this case falls within both the first and fourth situations, or some combination thereof. | mbe_302 | 304-train | [
741
]
|
mbe_388 | mbe | 388 | 220 | MBE-1978-83-part5 | nan | 40 | nan | Amy Docent, a state college instructor, was discharged because of her refusal to comply with a state statute requiring public employees to swear or affirm that they will (1) "uphold and defend" the state and federal constitutions and (2) "oppose the overthrow" of the state or federal governments "by force, violence, or by any improper method." The statute had previously been held constitutional by the state supreme court. Docent filed a complaint in federal district court alleging the unconstitutionality of the statute and seeking an injunction and damages. Which of the following is the state's strongest argument for sustaining the validity of the statute? | Government employment is a privilege, not a right. | The oath as a whole is only a commitment to abide by constitutional processes. | The First and Fourteenth Amendments permit a state to fix the conditions of state employment. | The state has a compelling need to keep disloyal persons out of governmental positions of trust. | B | Instead, as the U.S. Supreme Court has clarified, “the First Amendment simply protects a public employee's right, in certain circumstances, to speak as a citizen addressing matters of public concern.” For this reason, if a public employee is not speaking as a private citizen and/or is not speaking about a matter of public concern, their federal employer is free to restrict their speech without violating the First Amendment. | mbe_307 | 309-train | [
1189
]
|
mbe_418 | mbe | 418 | 240 | MBE-1978-83-part6 | nan | 18 | nan | Dean, charged with murder, was present with her attorney at a preliminary examination when White, who was the defendant in a separate prosecution for concealing the body of the murder victim, testified for the prosecution against Dean. When called to testify at Dean's trial, White refused to testify, though ordered to do so. The prosecution offers evidence of White's testimony at the preliminary examination. The evidence is | admissible as former testimony | admissible as past recollection recorded | inadmissible, because it would violate White's privilege against self-incrimination | inadmissible, because it is hearsay not within any exception | A | A party's “interest and motive at a second proceeding is not dissimilar to his interest at a first proceeding within the meaning of Evidence Code section 1291, subdivision (a)(2), simply because events occurring after the first proceeding might have led counsel to alter the nature and scope of cross-examination of the witness in certain particulars. [Citation.] The ‘ “motives need not be identical, only ‘similar.’ ” ’ ” (People v. Harris (2005) 37 Cal.4th 310, 333, 33 Cal.Rptr.3d 509, 118 P.3d 545.) Where the party had the same motive to discredit the witness and challenge the witness's credibility, the former testimony would be admissible under section 1291. (People v. Harris, at p. 333, 33 Cal.Rptr.3d 509, 118 P.3d 545.) Whether evidence is admissible under section 1291, moreover, depends on whether the party against whom the former testimony is offered had a motive and opportunity for cross-examination, not whether counsel actually cross-examined the witness. (People v. Williams (2008) 43 Cal.4th 584, 626–627, 75 Cal.Rptr.3d 691, 181 P.3d 1035.) | mbe_325 | 328-train | [
4001
]
|
mbe_420 | mbe | 420 | 242 | MBE-1978-83-part6 | nan | 20 | nan | While testifying as a witness in a civil trial, Walters was asked on cross-examination if he had been convicted in the circuit court of Jasper County of stealing $200 from his employer on August 16, 1977. Walters said, "No, I have never been convicted of any crime." In fact, Walters had pleaded guilty to such a charge and had been placed on probation. Walters was then charged with perjury on the ground that his statement denying the conviction was false. A statute in the jurisdiction defines perjury as knowingly making a false statement while under oath. At trial, the state proved Walters' statement and the prior conviction. Walters testified that the attorney who represented him in the theft case had told him that, because he had been placed on probation, he had not been convicted of a crime. Walters had served his probationary period satisfactorily and been discharged from probation. The alleged advice of the attorney was incorrect. If the jury believes Walters, it should find him | guilty, because his mistake was one of law | guilty, because reliance on the advice of an attorney is not a defense | not guilty if the jury also finds that his reliance on the attorney's advice was reasonable | not guilty, because he lacked the necessary mental state | D | For many but not all crimes, the prosecution must prove not only that the defendant carried out certain acts but also that they had a certain mental state. This is often known as the “mens rea” (“guilty mind”) element, and it prevents people from being punished when their intentions were innocent. When a prosecutor is trying to prove intent or another mental state, they may present evidence showing that a defendant had a motive to commit the crime. Conversely, a defendant may try to defeat a charge by showing that they did not have a motive to commit the crime. However, having a motive is not a required element of a crime. | mbe_327 | 330-train | [
3024,
3526,
11076
]
|
mbe_434 | mbe | 434 | 255 | MBE-1978-83-part6 | nan | 34 | nan | Dutton, disappointed by his 8-year-old son's failure to do well in school, began systematically depriving the child of food during summer vacation. Although his son became seriously ill from malnutrition, Dutton failed to call a doctor. He believed that as a parent he had the sole right to determine whether the child was fed or received medical treatment. Eventually the child died. An autopsy disclosed that the child had suffered agonizingly as a result of the starvation, that a physician's aid would have alleviated the suffering, and that although the child would have died in a few months from malnutrition, the actual cause of death was an untreatable form of cancer. The father was prosecuted for murder, defined in the jurisdiction as "unlawful killing of a human being with malice aforethought." The father should be | acquitted, because of the defendant's goodfaith belief concerning parental rights in supervising children | acquitted, because summoning the physician or feeding the child would not have prevented the child's death from cancer | convicted, because the father's treatment of his son showed a reckless indifference to the value of life | convicted, because the child would have died from malnutrition had he not been afflicted with cancer | B | As we have discussed, but-for causation is not a discernment of degree. Rather, but-for causation determines whether a particular factor was necessary to produce a result, regardless of its percentage contribution to the result or weight in relation to other causal factors. See, e.g., Burrage, 571 U.S. at 218, 134 S.Ct. 881 (rejecting “substantial” or “contributing” factor tests because they seek to quantify the relationship between the relevant causal factor and the end result, thereby injecting uncertainty that cannot be squared with a beyond-a-reasonable-doubt standard). Importantly, the Council rejected “primarily” as a causation standard. Responding to the jury's questions concerning the degree to which bias motivated the assault would not have clarified any confusion about the application of but-for causation. The trial court's response, therefore, sought to steer the jury back to the critical inquiry of but-for causation. | mbe_340 | 343-train | [
772
]
|
mbe_441 | mbe | 441 | 261 | MBE-1978-83-part6 | nan | 41 | nan | Talbot and Rogers, as lessees, signed a valid lease for a house. Lane, the landlord, duly executed the lease and delivered possession of the premises to the lessees. During the term of the lease, Rogers verbally invited Andrews to share the house with the lessees. Andrews agreed to pay part of the rent to Lane, who did not object to this arrangement, despite a provision in the lease that provided that "any assignment, subletting or transfer of any rights under this lease without the express written consent of the landlord is strictly prohibited, null, and void." Talbot objected to Andrews' moving in, even if Andrews were to pay a part of the rent. When Andrews moved in, Talbot brought an appropriate action against Lane, Rogers, and Andrews for a declaratory judgment that Rogers had no right to assign. Rogers' defense was that he and Talbot were tenants in common of a term for years, and that he, Rogers, had a right to assign a fractional interest in his undivided one-half interest. In this action, Talbot will | prevail, because a co-tenant has no right to assign all or any part of a leasehold without the consent of all interested parties | prevail, because the lease provision prohibits assignment | not prevail, because he is not the beneficiary of the nonassignment provision in the lease | not prevail, because his claim amounts to a void restraint on alienation | C | “[U]nder New York law, contracts are freely assignable in the absence of ‘clear language expressly prohibiting assignment.’ ” Elliott Assocs., L.P. v. Republic of Peru, 948 F.Supp. 1203, 1211 (S.D.N.Y.1996) (quoting Pravin Banker Assocs., Ltd. v. Banco Popular del Peru, 895 F.Supp. 660, 668 (S.D.N.Y.1995)); Stralem, 303 A.D.2d at 122, 758 N.Y.S.2d 345 (same). | mbe_346 | 350-train | [
13016
]
|
mbe_463 | mbe | 463 | 279 | MBE-1985-part7 | nan | 11 | nan | While crossing Spruce Street, Pesko was hit by a car that she did not see. Pesko sued Dorry for her injuries. At trial, Pesko calls Williams, a police officer, to testify that, ten minutes after the accident, a driver stopped him and said, "Officer, a few minutes ago I saw a hit-and-run accident on Spruce Street involving a blue convertible, which I followed to the drive-in restaurant at Oak and Third," and that a few seconds later Williams saw Dorry sitting alone in a blue convertible in the drive-in restaurant's parking lot. Williams' testimony about the driver's statement should be | admitted as a statement of recent perception | admitted as a present sense impression | excluded, because it is hearsay not within any exception | excluded, because it is more prejudicial than probative | C | To qualify as a present sense impression under Rule 803(1), a statement must “describ[e] or explain[ ] an event or condition” while the viewer is perceiving it or immediately thereafter. Payne argues that Reyes was perceiving Gonzales's frustration with the children. But the statement at issue—Gonzales's threat to kill the children—was not the sense impression. Nor did the statement qualify as an excited utterance under Rule 803(2). That rule requires that the statement “relate[ ] to a startling event or condition.” | mbe_367 | 371-train | [
12613
]
|
mbe_534 | mbe | 534 | 338 | MBE-1989-90-part2 | nan | 31 | nan | On a wholly random basis, a state agency has given a few probationary employees who were not rehired at the end of their probationary period a statement of reasons and an opportunity for a hearing; but the agency has very rarely done so. No statute or rule of the agency required such a statement of reasons or a hearing. The employment of Masters, a probationary employee, was terminated without a statement of reasons or an opportunity for a hearing. The agency did not even consider whether it should give him either. A suit by Masters requesting a statement of reasons and a hearing will probably be | successful on the grounds that failure to give Masters reasons and an opportunity for a hearing constituted a bill of attainder | successful on the grounds that an agency's inconsistent practices, even if unintentional, deny adversely affected | persons the equal protection of the laws unsuccessful because Masters does not have a right to be rehired that is protected by procedural due process | unsuccessful because the conditions of state employment are matters reserved to the states by the Tenth Amendment | C | procedural due process prohibits the government from depriving “an individual of a liberty or property interest without providing appropriate procedural protections”—usually in the form of notice and some kind of opportunity to contest the decision. E.g., Atherton v. D.C. Office of Mayor, 567 F.3d 672, 689 (D.C. Cir. 2009). | mbe_420 | 426-train | [
97
]
|
mbe_545 | mbe | 545 | 348 | MBE-1989-90-part2 | nan | 42 | nan | Ann leased commercial property to Brenda for a period of ten years. The lease contained the following provision: "No subleasing or assignment will be permitted unless with the written consent of the lessor." One year later, Brenda assigned all interest in the lease to Carolyn, who assumed and agreed to perform the lessee's obligations under the terms of the lease. Ann learned of the assignment and wrote to Brenda that she had no objection to the assignment to Carolyn and agreed to accept rent from Carolyn instead of Brenda. Thereafter, Carolyn paid rent to Ann for a. period of five years. Carolyn then defaulted and went into bankruptcy. In an appropriate action, Ann sued Brenda for rent due. If Ann loses, it will be because there was | laches | an accord and satisfaction | a novation | an attornment | C | A novation is an agreement made between two contracting parties to allow for the substitution of a new party for an existing one. The original contracting party who is replaced by the new party with the novation is excused by the novation, and therefore the original party who is replaced gives up any rights it has against the other original party to the contract. Both original contracting parties must agree to the novation. | mbe_429 | 436-train | [
953,
8327,
13016
]
|
mbe_562 | mbe | 562 | 364 | 1991-Feb | CRIM. LAW | 9 | nan | Shore decided to destroy his dilapidated building in order to collect the insurance money. He hired Parsons to bum down the building. Parsons broke into the building and carefully searched it to make sure no one was inside. He failed, however, to see a vagrant asleep in an office closet. He started a fire. The building was destroyed, and the vagrant died from burns a week later. Two days after the fire, Shore filed an insurance claim in which he stated that he had no information about the cause of the fire. If Shore is guilty of felony-murder, it is because the vagrant's death occurred in connection with the felony of | arson. | fraud. | conspiracy. | burglary. | A | Federal law classifies felony murder as first-degree murder. It lists the felonies that can form the basis for a felony-murder charge in a prosecution by the U.S. government. They include arson, escape, murder, kidnapping, treason, espionage, sabotage, sexual abuse, child abuse, burglary, and robbery. (18 U.S.C. § 1111(a) (2021).) | mbe_444 | 451-train | [
5011
]
|
mbe_591 | mbe | 591 | 388 | 1991-Feb | CRIM. LAW | 38 | Police received information from an undercover police officer that she had just seen two men (whom she described) in a red pickup truck selling marijuana to schoolchildren near the city's largest high school. A few minutes later, two police officers saw a pickup truck fitting the description a half block from the high school. The driver of the truck matched the description of one of the men described by the undercover officer. The only passenger was a young woman who was in the back of the truck. The police saw her get out and stand at a nearby bus stop. They stopped the truck and searched the driver. In the pocket of the driver's jacket, the police found a small bottle of pills that they recognized as narcotics. They then broke open a locked toolbox attached to the flatbed of the truck and found a small sealed envelope inside. They opened it and found marijuana. They also found a quantity of cocaine in the glove compartment. After completing their search of the driver and the truck, the police went over to the young woman and searched her purse. In her purse, they found a small quantity of heroin. Both the driver and the young woman were arrested and charged with unlawful possession of narcotics. | If the driver moves to suppress the use as evidence of the marijuana and cocaine found in the search of the truck, the court should | grant the motion as to both the marijuana and the cocaine. | grant the motion as to the marijuana but deny it as to the cocaine. | deny the motion as to the marijuana but grant it as to the cocaine. | deny the motion as to both the marijuana and the cocaine. | D | Under the “automobile exception,” “[i]f a car is readily mobile and probable cause exists to believe it contains contraband, the Fourth Amendment ... permits police to search the vehicle without more.” Maryland v. Dyson, 527 U.S. 465, 466, 119 S.Ct. 2013, 144 L.Ed.2d 442 (1999) (per curiam) (quoting Pennsylvania v. Labron, 518 U.S. 938, 940, 116 S.Ct. 2485, 135 L.Ed.2d 1031 (1996) (per curiam)). | mbe_466 | 475-train | [
796
]
|
mbe_592 | mbe | 592 | 388 | 1991-Feb | CRIM. LAW | 39 | Police received information from an undercover police officer that she had just seen two men (whom she described) in a red pickup truck selling marijuana to schoolchildren near the city's largest high school. A few minutes later, two police officers saw a pickup truck fitting the description a half block from the high school. The driver of the truck matched the description of one of the men described by the undercover officer. The only passenger was a young woman who was in the back of the truck. The police saw her get out and stand at a nearby bus stop. They stopped the truck and searched the driver. In the pocket of the driver's jacket, the police found a small bottle of pills that they recognized as narcotics. They then broke open a locked toolbox attached to the flatbed of the truck and found a small sealed envelope inside. They opened it and found marijuana. They also found a quantity of cocaine in the glove compartment. After completing their search of the driver and the truck, the police went over to the young woman and searched her purse. In her purse, they found a small quantity of heroin. Both the driver and the young woman were arrested and charged with unlawful possession of narcotics. | If the young woman moves to suppress the use as evidence of the heroin, the court should | grant the motion, because she did not fit the description given by the informant and her mere presence does not justify the search. | grant the motion, because the police should have seized her purse and then obtained a warrant to search it. | deny the motion, because she had been a passenger in the truck and the police had probable cause to search the truck. | deny the motion, because she was planning to leave the scene by bus and so exigent circumstances existed. | A | A search or seizure is ordinarily unreasonable in the absence of individualized suspicion of wrongdoing under the Fourth Amendment of the United States Constitution. | mbe_467 | 476-train | [
796
]
|
mbe_604 | mbe | 604 | 399 | 1991-Feb | REAL PROP. | 51 | nan | At the time of his death last week, Test owned Blackacre, a small farm. By his duly probated will, drawn five years ago, Test did the following: (1) devised Blackacre "to Arthur for the life of Baker, then to Casper"; (2) gave "all the rest, residue and remainder of my Estate, both real and personal, to my friend Fanny." At his death, Test was survived by Arthur, Casper, Sonny (Test's son and sole heir), and Fanny. Baker had died a week before Test. Title to Blackacre is now inx | Arthur for life, remainder to Casper. | Casper, in fee simple. | Sonny, in fee simple. | Fanny, in fee simple. | B | Generally, a life estate is created by a deed or will where the language of the instrument manifests an intention on the part of the grantor or testator to pass to a grantee or devisee a right to possess, use, or enjoy property during the period of the grantee's life. Eversole v. Williams, 943 S.W.2d 141, 143 (Tex.App.-Houston [1st Dist.] 1997, no writ). While no particular form of words is necessary to create a life estate, the words used must clearly express the grantor's intent to create a life estate. See Miller v. Wilson, 888 S.W.2d 158, 161 (Tex.App.-El Paso 1994, writ denied). | mbe_476 | 486-train | [
958
]
|
mbe_615 | mbe | 615 | 409 | 1991-Feb | EVIDENCE | 62 | nan | Decker, charged with armed robbery of a store, denied that he was the person who had robbed the store. In presenting the state's case, the prosecutor seeks to introduce evidence that Decker had robbed two other stores in the past year. This evidence is | admissible, to prove a pertinent trait of Decker's character and Decker's action in conformity therewith. | admissible, to prove Decker's intent and identity. | inadmissible, because character must be proved by reputation or opinion and may not be proved by specific acts. | inadmissible, because its probative value is substantially outweighed by the danger of unfair prejudice. | D | Rule 403 provides that, “[a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice.” “Probative” means “[t]ending to prove or disprove.” Black's Law Dictionary 1323 (9th ed.2009). Probative value is the measure of the importance of that tendency to the outcome of a case. It is the weight that a piece of relevant evidence will carry in helping the trier of fact decide the issues. “[T]he more essential the evidence, the greater its probative value.” United States v. Stout, 509 F.3d 796, 804 (6th Cir.2007) (internal quotation marks omitted). Thus, a court analyzing probative value considers the importance of the evidence and the significance of the issues to which the evidence relates. As our supreme court stated in State v. Torres, 390 S.C. 618, 703 S.E.2d 226 (2010), “[p]hotographs calculated to arouse the sympathy or prejudice of the jury should be excluded if they are ... not necessary to substantiate material facts or conditions.” 390 S.C. at 623, 703 S.E.2d at 228 (emphasis added). The evaluation of probative value cannot be made in the abstract, but should be made in the practical context of the issues at stake in the trial of each case. See *203 State v. Lyles, 379 S.C. 328, 338, 665 S.E.2d 201, 206 (Ct.App.2008) (“When [balancing the danger of unfair prejudice] against the probative value, the determination must be based on the entire record and will turn on the facts of each case.” (citing State v. Gillian, 373 S.C. 601, 609, 646 S.E.2d 872, 876 (2007))). | mbe_485 | 495-train | [
4335
]
|
mbe_636 | mbe | 636 | 427 | 1991-Feb | CRIM. LAW | 84 | nan | In which of the following situations would a court applying common-law doctrine be most likely to convict Defendant of the crime charged, despite Defendant's mistake? | Defendant was charged with bigamy. He married his neighbor four years after her husband was reported missing at sea. The rescued husband returns alive. A state statute provides that a person is presumed dead after five years of unexplained absence. Defendant believed the statutory period was three years. | Defendant was charged with murder after he shot and killed a man who had extorted money from him. Defendant mistakenly thought the victim had raised his hand to shoot, when, in fact, the victim was shaking his fist at Defendant to frighten him. | Defendant was charged with assault with intent to rape a woman who he mistakenly believed had agreed to have sexual intercourse with him. | Defendant was charged with burglary. He had broken into an office where he once worked and had taken a typewriter that he erroneously believed had been given to him before he was fired. | A | Generally, a mistake of the law is not a defense. Cheek v. United States, 498 U.S. 192, 199, 111 S.Ct. 604, 112 L.Ed.2d 617 (1991); State v. Jacobson, 697 N.W.2d 610, 615 (Minn.2005). | mbe_496 | 506-train | [
9602
]
|
mbe_647 | mbe | 647 | 437 | 1991-Feb | EVIDENCE | 95 | nan | In a prosecution of Dahle for assault, Wharton is called to testify that the victim, Valerian, had complained to Wharton that Dahle was the assailant. Wharton's testimony is most likely to be admitted if Wharton is | a doctor, whom Valerian consulted for treatment. | a minister, whom Valerian consulted for counseling. | Valerian's husband, whom she telephoned immediately after the event. | a police officer, whom Valerian called on instructions from her husband. | C | Federal courts recognize two distinct marital privileges under Rule 501 of the Federal Rules of Evidence: the marital confidential communication privilege and the adverse spousal testimony privilege. See United States v. Jackson, 939 F.2d 625, 627 (8th Cir.1991). Under the adverse spousal testimony privilege, the privilege at issue in this case, an individual “may be neither compelled to testify nor foreclosed from testifying” against the person to whom he or she is married at the time of trial.1 Trammel v. United States, 445 U.S. 40, 53, 100 S.Ct. 906, 914, 63 L.Ed.2d 186 (1980); see also Jackson, 939 F.2d at 627. The privilege therefore rests with the testifying spouse, who may waive the privilege without the consent of the defendant spouse. See Trammel, 445 U.S. at 53, 100 S.Ct. 906. | mbe_504 | 515-train | [
4001
]
|
mbe_681 | mbe | 681 | 467 | 1991-Feb | CONST. LAW | 130 | nan | To encourage the growth of its population, the state of Axbridge established a program that awarded $1,000 to the parents of each child born within the state, provided that at the time of the child's birth the mother and father of the newborn were citizens of the United States. The Lills are aliens who are permanent residents of the United States and have resided in Axbridge for three years. When their first child was born two months ago, they applied for and were denied the $1,000 award by Axbridge officials on the sole ground that they are not citizens of the United States. The Lills filed suit in federal court contending that their exclusion from the award program was unconstitutional. Assume no federal statute addresses this question. In this case, the court should hold that the exclusion of aliens from the Axbridge award program is | constitutional, because the Tenth Amendment reserves to the states plenary authority over the spending of state funds. | constitutional, because Axbridge has a legitimate interest in encouraging the growth of its population, and a rational legislature could believe that families in which both parents are United States citizens are more likely to stay in Axbridge and contribute to its future prosperity than those in which one or both of the parents are aliens. | unconstitutional, because strict scrutiny governs judicial review of such state classifications based on alienage, and Axbridge cannot demonstrate that this classification is necessary to advance a compelling state interest. | unconstitutional, because state classifications based on alienage are impermissible unless explicitly authorized by an act of Congress. | C | The Court has ruled that classifications by a State that are based on alienage are “inherently suspect and subject to close judicial scrutiny.” Graham v. Richardson, 403 U.S. 365, 372, 91 S.Ct. 1848, 1852, 29 L.Ed.2d 534 (1971). See Examining Board v. Flores de Otero, 426 U.S. 572, 601-602, 96 S.Ct. 2264, 2281, 49 L.Ed.2d 65 (1976); In re Griffiths, 413 U.S., at 721, 93 S.Ct. at 2854, 37 L.Ed.2d 910; Sugarman v. Dougall, 413 U.S. 634, 642, 93 S.Ct. 2842, 2847, 37 L.Ed.2d 853 (1973). In undertaking this scrutiny, “the governmental interest claimed to justify the discrimination is to be carefully examined in order to determine whether that interest is legitimate and substantial, and inquiry must be made whether the means adopted to achieve the goal are necessary and precisely drawn.” Examining Board v. Flores de Otero, 426 U.S., at 605, 96 S.Ct., at 2283. See In re Griffths, 413 U.S., at 721-722, 93 S.Ct., at 2854-2855. Alienage classifications by a State that do not withstand this stringent examination cannot stand. | mbe_529 | 540-train | [
1189
]
|
mbe_695 | mbe | 695 | 481 | 1991-Feb | CONTRACTS | 144 | nan | Debtor's $1,000 contractual obligation to Aunt was due on July 1. On the preceding June 15, Aunt called Niece and said, "As my birthday gift to you, you may collect on July 1 the $1,000 Debtor owes me." Aunt also called Debtor and told him to pay the $1,000 to Niece on July 1. On July 1, Debtor, saying that he did not like Niece and wouldn't pay anything to her, paid the $1,000 to Aunt, who accepted it without objection. Will Niece succeed in an action for $1,000 against Debtor? | Yes, because Aunt had effectively assigned the $1,000 debt to her. | Yes, because Aunt's calls to Niece and Debtor effected a novation. | No, because Aunt's acceptance of the $1,000, without objection, was in effect the revocation of a gratuitous assignment. | No, because Debtor cannot be compelled to render performance to an assignee whom he finds personally objectionable. | C | It is true that, in general, payments voluntarily made are not recoverable. | mbe_541 | 552-train | [
13012
]
|
mbe_699 | mbe | 699 | 484 | 1991-Feb | EVIDENCE | 148 | nan | Davidson and Smythe were charged with burglary of a warehouse. They were tried separately. At Davidson's trial, Smythe testified that he saw Davidson commit the burglary. While Smythe is still subject to recall as a witness, Davidson calls Smythe's cellmate, Walton, to testify that Smythe said, "I broke into the warehouse alone because Davidson was too drunk to help." This evidence of Smythe's statement is | admissible as a declaration against penal interest. | admissible as a prior inconsistent statement. | inadmissible, because it is hearsay not within any exception. | inadmissible, because the statement is not clearly corroborated. | B | Each element of a criminal offense “must be proven by sufficient evidence.” Spottedbear, ¶ 23. Prior inconsistent statements may be admitted as substantive evidence and may be considered in “determining whether the evidence is sufficient to sustain the conviction.” State v. Torres, 2013 MT 101, ¶ 27, 369 Mont. 516, 299 P.3d 804. A prior inconsistent statement is a statement made by a declarant that the declarant later contradicts during testimony at trial. M. R. Evid. 801(d)(1)(A). While such a statement may be admitted as substantive evidence, it is insufficient, standing alone, to prove a necessary element of a criminal offense. Torres, ¶ 27 (citing State v. White Water, 194 Mont. 85, 88-89, 634 P.2d 636, 638 (1981)). Instead, prior inconsistent statements must be corroborated by other evidence in order to sustain a conviction. State v. Giant, 2001 MT 245, ¶ 34, 307 Mont. 74, 37 P.3d 49; State v. Charlo, 226 Mont. 213, 217, 735 P.2d 278, 280 (1987).
**924 ¶ 12 We established in White Water that “[a]n unreliable prior inconsistent statement should not be the sole, substantive evidence upon which a jury should be allowed to base guilt.” White Water, 194 Mont. at 88, 634 P.2d at 638. We relied on White Water to conclude in Giant that prior inconsistent statements admitted as substantive evidence of guilt must be corroborated in order to sustain a conviction. Giant, ¶ 34. We held that evidence of the husband’s flight did not corroborate the wife’s prior inconsistent statement identifying him as her attacker, because neither the prior statement nor the evidence of flight independently constituted reliable evidence of guilt. Giant, ¶¶ 39, 41. We noted that evidence of flight, standing alone, “cannot be the sole basis of guilt,” as flight could be “as consistent with innocence as it is with guilt.” Giant, ¶ 38. We explained that to hold that “two forms of evidence, each unreliable in its own right, nonetheless, when taken together, are sufficient to prove guilt beyond a reasonable doubt, accords the sum of the evidence a characteristic trustworthiness that neither of its constituent parts possesses.” Giant, ¶ 39. | mbe_545 | 556-train | [
4335
]
|
mbe_706 | mbe | 706 | 491 | 1991-Feb | CRIM. LAW | 155 | nan | Miller's, a department store, had experienced a growing incidence of shoplifting. At the store's request, the police concealed Best, a woman who was a detective, at a vantage point above the women's apparel fitting rooms where she could see into these rooms, where customers tried on clothes. Detective Best saw Davis enter a fitting room, stuff a dress into her pocketbook, leave the fitting room, and start for the street door. By prearranged signal, Best notified another police officer near the door, who detained Davis as Davis started to go out into the street. Davis was placed under arrest, and the dress was retrieved from her purse. Davis is charged with shoplifting. Her motion to prevent the introduction of the dress into evidence will be | granted, because the police should have secured a search warrant to search her bag. | granted, because a customer has a reasonable expectation of privacy while using a department store fitting room. | denied, because the search and seizure were made incident to a valid arrest based on probable cause. | denied, because Detective Best could see into the room and thus Davis's activities were legitimately in plain view. | B | “A ‘reasonable’ expectation of privacy is an objective entitlement founded on broadly based and widely accepted community norms.” (Hill, supra, 7 Cal.4th at p. 37, 26 Cal.Rptr.2d 834, 865 P.2d 633.) The reasonableness of a privacy expectation depends on the surrounding context. The Supreme Court has “stressed that ‘customs, practices, and physical settings surrounding particular activities may create or inhibit reasonable expectations of privacy.’ [Citation.]” (County of Los Angeles, supra, 56 Cal.4th at p. 927, 157 Cal.Rptr.3d 481, 301 P.3d 1102.) | mbe_550 | 561-train | [
4483
]
|
mbe_792 | mbe | 792 | 568 | 1991-July | TORTS | 43 | nan | While Hill was in her kitchen, she heard the screech of automobile tires. She ran to the window and saw a tricycle flying through the air. The tricycle had been hit by a car driven by Weber, who had been speeding. She also saw a child's body in the grass adjacent to the street. As a result of her shock from this experience, Hill suffered a heart attack. In a claim by Hill against Weber, the issue on which Hill's right to recover will depend is whether | a person can recover damages based on the defendant's breach of a duty owed to another. | it is foreseeable that a person may suffer physical harm caused solely by an injury inflicted on another. | a person can recover damages caused by shock unaccompanied by bodily impact. | a person can recover damages for harm resulting from shock caused solely by another's peril or injury. | D | Proximate cause is “a ‘cause which in the natural and continuous sequence, unbroken by an efficient intervening cause, produces the result complained of and without which the result would not have occurred.’ ” Cruz-Mendez, 156 N.J. at 575, 722 A.2d 515 (quoting Daniel v. Dep't of Transp., 239 N.J. Super. 563, 595, 571 A.2d 1329 (App. Div.), aff'd o.b., 79 N.J. 547, 401 A.2d 532 (1979) ). It is not enough that the injury would not have occurred but for the defendant's negligence, where there are other contributing causes of the injury. A plaintiff must show that the negligence was a “substantial factor” contributing to the result. See Komlodi v. Picciano, 217 N.J. 387, 422, 89 A.3d 1234 (2014) (“[T]he ‘substantial factor’ test is given when there are concurrent causes potentially capable of producing the harm or injury.”); Verdicchio v. Ricca, 179 N.J. 1, 24-25, 843 A.2d 1042 (2004). “A substantial factor is one that is ‘not a remote, trivial or inconsequential cause.’ ” Komlodi, 217 N.J. at 423, 89 A.3d 1234 (quoting Model Jury Charge (Civil) § 6.13, “Proximate Cause – Where There is Claim that Concurrent Causes of Harm are Present and Claim that Specific Harm was Not Foreseeable” (approved May 1998) ). | mbe_612 | 623-train | [
517
]
|
mbe_804 | mbe | 804 | 579 | 1991-July | REAL PROP. | 55 | nan | Olwen owned 80 acres of land, fronting on a town road. Two years ago, Olwen sold to Buck the back 40 acres. The 40 acres sold to Buck did not adjoin any public road. Olwen's deed to Buck expressly granted a right-of-way over a specified strip of Olwen's retained 40 acres, so Buck could reach the town road. The deed was promptly and properly recorded. Last year, Buck conveyed the back 40 acres to Sam. They had discussed the right-of-way over Olwen's land to the road, but Buck's deed to Sam made no mention of it. Sam began to use the right-of-way as Buck had, but Olwen sued to enjoin such use by Sam. The court should decide for | Sam, because he has an easement by implication. | Sam, because the easement appurtenant passed to him as a result of Buck's deed to him. | Olwen, because Buck's easement in gross was not transferable. | Olwen, because Buck's deed failed expressly to transfer the right-of-way to Sam. | B | “An appurtenant easement ‘is one where the land of one person, the servient [estate], is subjected to some use or burden for the benefit of the lands of another person, the dominant [estate].’ ” Id. at 399, 302 P.3d 812 (quoting Bloomfield, 224 Or.App. at 445, 199 P.3d 318). “ ‘The right is enjoyed by the owner of the dominant estate by virtue of his ownership of the land. If the dominant estate is sold or otherwise transferred to another, the easement over the servient land is transferred as well.’ ” Id. (quoting Braat v. Aylett, 278 Or. 549, 552, 564 P.2d 1030 (1977)). | mbe_618 | 631-train | [
1715
]
|
mbe_809 | mbe | 809 | 584 | 1991-July | CRIM. LAW | 60 | nan | Smith and Penn were charged with murder. Each gave a confession to the police that implicated both of them. Smith later retracted her confession, claiming that it was coerced. Smith and Penn were tried together. The prosecutor offered both confessions into evidence. Smith and Penn objected. After a hearing, the trial judge found that both confessions were voluntary and admitted both into evidence. Smith testified at trial. She denied any involvement in the crime and claimed that her confession was false and the result of coercion. Both defendants were convicted. On appeal, Smith contends her conviction should be reversed because of the admission into evidence of Penn's confession. Smith's contention is | correct, unless Penn testified at trial. | correct, whether or not Penn testified at trial. | incorrect, because Smith testified in her own behalf. | incorrect, because Smith's own confession was properly admitted into evidence. | A | The confession of an accomplice, made in the absence of the accused, is not competent evidence against the accused to prove their participation in the crime. Moreover, even if such a confession is made in the presence of the accused and the accused remains silent, it is still not competent unless the confession is made under such circumstances and conditions as to require the accused to speak. However, where a defendant acknowledges statements of an accomplice, the acknowledged statements become the defendant's own confession by ratification or adoption and are admissible against the defendant, despite their claim that the inculpating remarks are hearsay.
A statement by a codefendant who is granted a separate trial may not be read into evidence at the trial of the other codefendant, where the party against whom it is offered has not had the opportunity and similar motive to develop the testimony by direct, cross, or redirect examination, to satisfy the right of confrontation.4 The United States Supreme Court has found that a nontestifying accomplice's confession which inculpates a criminal defendant is not within a firmly rooted exception to the hearsay rule as that concept has been defined by Confrontation Clause jurisprudence. Thus, a nontestifying accomplice's confession, in which they incriminate themselves as well as the defendant, is not sufficiently reliable to be admissible without allowing the defendant to cross-examine the accomplice, even though other evidence at trial corroborates portions of the accomplice's statements, the police have informed the accomplice of their Miranda rights and have not promised them leniency in exchange for their statements, and the accomplice knows they are exposing themselves to criminal liability.5 | mbe_623 | 636-train | [
961
]
|
mbe_814 | mbe | 814 | 588 | 1991-July | EVIDENCE | 65 | nan | In an automobile collision case brought by Poe against Davies, Poe introduced evidence that Ellis made an excited utterance that Davies ran the red light. Davies called Witt to testify that later Ellis, a bystander, now deceased, told Witt that Davies went through a yellow light. Witt's testimony should be | excluded, because it is hearsay not within any exception. | excluded, because Ellis is not available to explain or deny the inconsistency. | admitted only for the purpose of impeaching Ellis. | admitted as impeachment and as substantive evidence of the color of the light. | C | “Impeachment evidence, on the other hand, is that which is offered to discredit a witness ... to reduce the effectiveness of [the] testimony by bringing forth evidence which explains why the jury should not put faith in [the] testimony.’ ” [Id.] | mbe_626 | 639-train | [
4335,
7891
]
|
mbe_837 | mbe | 837 | 609 | 1991-July | REAL PROP. | 89 | nan | Brown owned Blackacre, a tract of undeveloped land. Blackacre abuts Whiteacre, a tract of land owned by Agency, the state's governmental energy agency. At Whiteacre, Agency has operated a waste-to-electricity recycling facility for 12 years. Blackacre and Whiteacre are in a remote area and Whiteacre is the only developed parcel of real estate within a ten-mile radius. The boundary line between Blackacre and Whiteacre had never been surveyed or marked on the face of the earth. During the past 12 years, some of the trucks bringing waste to the Agency facility have dumped their loads so that the piles of waste extend from Whiteacre onto a portion of Blackacre. However, prior to the four-week period during each calendar year when the Agency facility is closed for inspection and repairs, the waste piles are reduced to minimal levels so that during each of the four-week closures no waste was, in fact, piled on Blackacre. Neither Brown nor any representative of Agency knew the facts about the relation of the boundary line to the waste piles. The time for acquiring title by adverse possession in the jurisdiction is ten years. Last year, Brown died, and his son, Silas, succeeded him as the owner of Blackacre. Silas became aware of the facts, demanded that Agency stop using Blackacre for the piling of waste, and, when Agency refused his demand, brought an appropriate action to enjoin any such use of Blackacre in the future. If Agency prevails in that action, it will be because | the facts constitute adverse possession and title to the portion of Blackacre concerned has vested in Agency. | Brown's failure to keep himself informed as to Agency's use of Blackacre and his failure to object constituted implied consent to the continuation of that use. | the interest of the public in the conversion of waste to energy overrides any entitlement of Silas to equitable remedies. | the power of eminent domain of the state makes the claim of Silas moot. | A | “Adverse possession” is defined as “an actual and visible appropriation of real property, commenced and continued under a claim of right that is inconsistent with and is hostile to the claim of another person.” Terrill v. Tuckness, 985 S.W.2d 97, 107 (Tex.App.-San Antonio 1998, no pet.), quoting TEX.CIV.PRAC. & REM.CODE ANN. § 16.021(1). Possession must not only be actual, but also visible, continuous, notorious, distinct, *328 hostile (i.e., adverse), and of such a character as to indicate unmistakably an assertion of a claim of exclusive ownership in the occupant. Rhodes v. Cahill, 802 S.W.2d 643, 645 (Tex.1990); see also TEX.CIV.PRAC. & REM.CODE ANN. § 16.021(1). Exclusive possession of the land is required to support an adverse possession claim, and joint or common possession by the claimant and the property owner defeats the requisite exclusiveness. West End API Ltd. v. Rothpletz, 732 S.W.2d 371, 375–6 (Tex.App.-Dallas 1987, writ ref'd n.r.e.), citing Rick v. Grubbs, 147 Tex. 267, 214 S.W.2d 925, 927 (Tex.1948). | mbe_643 | 657-train | [
1002
]
|
mbe_849 | mbe | 849 | 621 | 1991-July | CONST. LAW | 101 | nan | A proposed federal statute would prohibit all types of discrimination against black persons on the basis of their race in every business transaction executed anywhere in the United States by any person or entity, governmental or private. Is this proposed federal statute likely to be constitutional? | Yes, because it could reasonably be viewed as an exercise of Congress's authority to enact laws for the general welfare. | Yes, because it could reasonably be viewed as a means of enforcing the provisions of the Thirteenth Amendment. | No, because it would regulate purely local transactions that are not in interstate commerce. | No, because it would invade the powers reserved to the states by the Tenth Amendment. | B | Our case law firmly establishes Congress' power to regulate purely local activities that are part of an economic “class of activities” that have a substantial effect on interstate commerce. See, e.g., Perez, 402 U.S., at 151, 91 S.Ct. 1357; Wickard v. Filburn, 317 U.S. 111, 128–129, 63 S.Ct. 82, 87 L.Ed. 122 (1942). As we stated in Wickard, “even if appellee's activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce.” Id., at 125, 63 S.Ct. 82. We have never required Congress to legislate with scientific exactitude. When Congress decides that the “ ‘total incidence’ ” of a practice poses a threat to a national market, it may regulate the entire class. See Perez, 402 U.S., at 154–155, 91 S.Ct. 1357 ( “ ‘[W]hen it is necessary in order to prevent an evil to make the law embrace more than the precise thing to be prevented it may do so’ ”(quoting Westfall v. United States, 274 U.S. 256, 259, 47 S.Ct. 629, 71 L.Ed. 1036 (1927))). In this vein, we have reiterated that when “ ‘a general regulatory statute bears a substantial relation to commerce, the de minimis character of individual instances arising under that statute is of no consequence.’ ” E.g., Lopez, 514 U.S., at 558, 115 S.Ct. 1624 (quoting Maryland v. Wirtz, 392 U.S. 183, 196, n. 27, 88 S.Ct. 2017, 20 L.Ed.2d 1020 (1968); emphasis deleted). | mbe_651 | 665-train | [
720
]
|
mbe_904 | mbe | 904 | 670 | 1991-July | CRIM. LAW | 156 | nan | Defendant was upset because he was going to have to close his liquor store due to competition from a discount store in a new shopping mall nearby. In desperation, he decided to set fire to his store to collect the insurance. While looking through the basement for flammable material, he lit a match to read the label on a can. The match burned his finger and, in a reflex action, he dropped the match. It fell into a barrel and ignited some paper. Defendant made no effort to put out the fire but instead left the building. The fire spread and the store was destroyed by fire. Defendant was eventually arrested and indicted for arson. Defendant is | guilty, if he could have put out the fire before it spread and did not do so because he wanted the building destroyed. | guilty, if he was negligent in starting the fire. | not guilty, because even if he wanted to burn the building there was no concurrence between his mens rea and the act of starting the fire. | not guilty, because his starting the fire was the result of a reflex action and not a voluntary act. | A | “[T]he offense of unlawfully causing a fire covers reckless accidents or unintentional fires, which, by definition, is committed by a person who is ‘aware of and consciously disregards a substantial and unjustifiable risk that his or her act *1032 will set fire to, burn, or cause to burn a structure, forest land, or property.’ (§§ 450, subd. (f), 452.)” (Atkins, supra, 25 Cal.4th at p. 89, 104 Cal.Rptr.2d 738, 18 P.3d 660.) | mbe_694 | 710-train | [
5002,
12577
]
|
mbe_914 | mbe | 914 | 678 | 1991-July | EVIDENCE | 167 | nan | Dove is on trial for theft. At trial, the prosecutor called John and May Wong. They testified that, as they looked out their apartment window, they saw thieves across the street break the window of a jewelry store, take jewelry, and leave in a car. Mrs. Wong telephoned the police and relayed to them the license number of the thieves' car as Mr. Wong looked out the window with binoculars and read it to her. Neither of them has any present memory of the number. The prosecutor offers as evidence a properly authenticated police tape recording of May Wong's telephone call with her voice giving the license number, which is independently shown to belong to Dove's car. The tape recording of May Wong's stating the license number is | admissible, under the hearsay exception for present sense impressions. | admissible, as nonhearsay circumstantial evidence. | inadmissible, because it is hearsay not within any exception. | inadmissible, because May Wong never had firsthand knowledge of the license number. | A | A statement made contemporaneously with a perceived event or occurrence may be excluded from the hearsay rules as a present sense impression. The statement must describe or explain the event or occurrence and be made during or immediately after the perceived event or occurrence. | mbe_701 | 717-train | [
7891
]
|
mbe_920 | mbe | 920 | 684 | 1991-July | EVIDENCE | 173 | nan | Mr. Denby was charged with the sale of narcotics. The federal prosecutor arranged with Mrs. Denby for her to testify against her husband in exchange for leniency in her case. At trial, the prosecution calls Mrs. Denby, who had been granted immunity from prosecution, to testify, among other things, that she saw her husband sell an ounce of heroin. Which of the following statements is most clearly correct in the federal courts? | Mrs. Denby cannot be called as a witness over her husband's objection. | Mrs. Denby can be called as a witness but cannot testify, over Mr. Denby's objection, that she saw him sell heroin. | Mrs. Denby can refuse to be a witness against her husband. | Mrs. Denby can be required to be a witness and to testify that she saw her husband sell heroin. | C | Except as otherwise provided by statute, a married person whose spouse is a party to a proceeding has a privilege not to be called as a witness by an adverse party to that proceeding without the prior express consent of the spouse having the privilege under this section unless the party calling the spouse does so in good faith without knowledge of the marital relationship. | mbe_707 | 723-train | [
3988
]
|
mbe_942 | mbe | 942 | 704 | 1991-July | TORTS | 195 | Pat sustained personal injuries in a three-car collision caused by the concurrent negligence of the three drivers, Pat, Donald, and Drew. In Pat's action for damages against Donald and Drew, the jury apportioned the negligence 30% to Pat, 30% to Donald, and 40% to Drew. Pat's total damages were $100,000. | Assume for this question only that a state statute provides for a system of pure comparative negligence, joint and several liability of concurrent tortfeasors, and contribution based upon proportionate fault. If Pat chooses to execute against Donald alone, she will be entitled to collect at most | $70,000 from Donald, and then Donald will be entitled to collect $40,000 from Drew. | $30,000 from Donald, and then Donald will be entitled to collect $10,000 from Drew. | $30,000 from Donald, and then Donald will be entitled to collect nothing from Drew. | nothing from Donald, because Donald's percentage of fault is not greater than that of Pat. | A | Missouri, has judicially adopted the “pure” form of comparative fault. Lippard v. Houdaille Industries, Inc., 715 S.W.2d 491, 493 (Mo. banc 1986); H. Woods, Comparative Fault, § 1:11 at 26–28 (2nd ed. 1987). Under the “pure” form of comparative fault, a plaintiff's negligence that concurs with that of the defendant does not relieve the defendant from liability. See Am.Jur.2d, Comparative Negligence, § 2, at 4–5 (New Topic Service 1977). It merely diminishes the amount of damages that the plaintiff can recover. Id. “Pure” comparative fault seeks to compensate an injured plaintiff so long as his portion of the combined negligence of the parties is less than 100%. Id. § 10, at 13–14. | mbe_721 | 740-train | [
13803
]
|
mbe_961 | mbe | 961 | 720 | 1992 | nan | 451 | Dunbar and Balcom went into a drugstore, where Dunbar reached into the cash register and took out $200. Stone, the owner of the store, came out of a back room, saw what had happened, and told Dunbar to put the money back. Balcom then took a revolver from under his coat and shot and killed Stone. | If Dunbar is prosecuted for murder on the basis of being an accessory to Balcom in committing a murder and the jury believes her claim, she should be found | guilty, because in firing the shot Balcom was trying to help her. | guilty, because she and Balcom were acting in concert in a dangerous under- taking. | not guilty, because she had no idea that Balcom was armed and she did not plan to use force. | not guilty, because she was exercising self- help and did not intend to steal. | C | Accessorial liability requires only that defendant, acting with the mental culpability required for the commission of the crime, intentionally aid another in the conduct constituting the offense” (People v. Chapman, 30 A.D.3d 1000, 1001, 816 N.Y.S.2d 256, lv. denied 7 N.Y.3d 811, 822 N.Y.S.2d 486, 855 N.E.2d 802 [internal quotation marks omitted]; see § 20.00). | mbe_735 | 755-train | [
773
]
|
mbe_1044 | mbe | 1044 | 792 | 1998 | CONTRACTS | 49 | Tenant rented a commercial building from Landlord, and operated a business in it. The building's large front window was smashed by vandals six months before expiration of the Tenant-Landlord lease. Tenant, who was obligated thereunder to effect and pay for repairs in such cases, promptly contracted with Glazier to replace the window for $2,000, due 30 days after satisfactory completion of the work. Landlord was then unaware of the Tenant-Glazier contract. Glazier was aware that the building was under lease, but dealt entirely with Tenant. Sixty days after Glazier's satisfactory completion of the window replacement, and prior to the expiration of Tenant's lease, Tenant, then insolvent, ceased doing business and vacated the building. In so doing, Tenant forfeited under the lease provisions its right to the return of a $2,000 security deposit with Landlord. The deposit had been required, however, for the express purpose (as stated in the lease) of covering any damage to the leased property except ordinary wear and tear. The only such damage occurring during Tenant's occupancy was the smashed window. Glazier's $2,000 bill for the window replacement is wholly unpaid. | Assuming that Glazier has no remedy quasi in rem under the relevant state mechanic's lien statute, which of the following would provide Glazier's best chance of an effective remedy in personam against Landlord? | An action in quasi contract for the reasonable value of a benefit unofficiously and non-gratuitously conferred on Landlord. | An action based on promissory estoppel. | An action based on an implied-in-fact contract. | An action as third-party intended beneficiary of the Tenant-Landlord lease. | A | It is impermissible to seek damages in an action sounding in quasi contract where the suing party has fully performed on a valid written agreement, the existence of which clearly covers the dispute between the parties. See id. It is only available where the services alleged are sufficiently outside the terms of the contract, see id.; D'Accord Fin. Servs. v. Metsa–Serla Oy, 1999 WL 58916 (S.D.N.Y. Feb.8, 1999), or where there is a bona fide dispute as to the existence of a contract. See Joseph Sternberg, Inc. v. Walber 36th St. Assoc., 187 A.D.2d 225, 228 594 N.Y.S.2d 144, 146 (1993). | mbe_796 | 817-train | [
527
]
|
mbe_1046 | mbe | 1046 | 793 | 1998 | EVIDENCE | 51 | nan | Defendant is on trial for robbing a bank in State A. She testified that she was in State B at the time of the robbery. Defendant calls her friend, Witness, to testify that two days before the robbery Defendant told him that she was going to spend the next three days in State B. Witness's testimony is | admissible, because the statement falls within the present sense impression exception to the hearsay rule. | admissible, because a statement of plans falls within the hearsay exception for then-existing state of mind. | inadmissible, because it is offered to establish an alibi by Defendant's own statement. | inadmissible, because it is hearsay not within any exception. | B | The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness: A statement of the declarant’s then-existing state of mind (such as motive, intent, or plan) or emotional, sensory, or physical condition (such as mental feeling, pain, or bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the validity or terms of the declarant’s will. | mbe_798 | 819-train | [
4335,
7891,
12746
]
|
mbe_1052 | mbe | 1052 | 799 | 1998 | EVIDENCE | 57 | nan | Paul sued Donna for breach of contract. Paul's position was that Joan, whom he understood to be Donna's agent, said: "On behalf of Donna, I accept your offer." Donna asserted that Joan had no actual or apparent authority to accept the offer on Donna's behalf. Paul's testimony concerning Joan's statement is | admissible, provided the court first finds by a preponderance of the evidence that Joan had actual or apparent authority to act for Donna. | admissible, upon or subject to introduction of evidence sufficient to support a finding by the jury that Joan had actual or apparent authority to act for Donna. | inadmissible, if Joan does not testify and her absence is not excused. | inadmissible, because it is hearsay not within any exception. | B | Apparent authority is such authority as a principal knowingly permits an agent to assume or that he holds the agent out as possessing. See Mack v. Scott, 230 Ark. 510, 323 S.W.2d 929 (1959). It is such authority as an agent appears to have by reason of actual authority that he has and such authority as a reasonably prudent person, using diligence and discretion, in view of the principal's conduct, would naturally suppose an agent to possess. See id. Marise was vested with the title of vice-president and had the actual authority to prepare and submit bids on projects. A reasonable and prudent person could thus conclude that he had the concomitant authority to receive communications regarding the acceptance of a project that he had bid upon. We find no error on this point. | mbe_803 | 825-train | [
507
]
|
mbe_1065 | mbe | 1065 | 810 | 1998 | CRIM. LAW | 70 | nan | Sam and two of his friends were members of a teenage street gang. While they were returning from a dance late one evening, their car collided with a car driven by an elderly woman. After an argument, Sam attacked the elderly woman with his fists and beat her to death. Sam's two friends watched, and when they saw the woman fall to the ground they urged Sam to flee. Sam was eventually apprehended and tried for manslaughter, but the jury could not decide on a verdict. If Sam's companions are subsequently tried as accomplices to manslaughter, they should be | acquitted, because Sam was not convicted of the offense. | acquitted, because they did not assist or encourage Sam to commit the crime. | convicted, because they urged him to flee. | convicted, because they made no effort to intervene. | B | An accomplice to manslaughter is legally responsible for the principal's acts that proximately caused the victim's death. | mbe_814 | 836-train | [
773
]
|
mbe_1079 | mbe | 1079 | 822 | 1998 | REAL PROP. | 85 | nan | By a writing, Oner leased his home, Blackacre, to Tenn for a term of three years, ending December 31 of last year, at the rent of $1,000 per month. The lease provided that Tenn could sublet and assign. Tenn lived in Blackacre for one year and paid the rent promptly. After one year, Tenn leased Blackacre to Agrit for one year at a rent of $1,000 per month. Agrit took possession of Blackacre and lived there for six months but, because of her unemployment, paid no rent. After six months, on June 30 Agrit abandoned Blackacre, which remained vacant for the balance of that year. Tenn again took possession of Blackacre at the beginning of the third and final year of the term but paid Oner no rent. At the end of the lease term, Oner brought an appropriate action against both Tenn and Agrit to recover $24,000, the unpaid rent. In such action Oner is entitled to a judgment | against Tenn individually for $24,000, and no judgment against Agrit. | against Tenn individually for $18,000, and against Agrit individually for $6,000. | against Tenn for $12,000, and against Tenn and Agrit jointly and severally for $12,000. | against Tenn individually for $18,000, and against Tenn and Agrit jointly and severally for $6,000. | A | A judgment in unlawful detainer declaring the forfeiture of the lease or agreement under which real property is held shall not relieve the lessee from liability pursuant to Section 1951.2 of the Civil Code. | mbe_824 | 846-train | [
953
]
|
mbe_1081 | mbe | 1081 | 824 | 1998 | REAL PROP. | 87 | nan | Bill owned in fee simple Lot 1 in a properly approved subdivision, designed and zoned for industrial use. Gail owned the adjoining Lot 2 in the same subdivision. The plat of the subdivision was recorded as authorized by statute. Twelve years ago, Bill erected an industrial building wholly situated on Lot 1 but with one wall along the boundary common with Lot 2. The construction was done as authorized by a building permit, validly obtained under applicable statutes, ordinances, and regulations. Further, the construction was regularly inspected and passed as being in compliance with all building code requirements. Lot 2 remained vacant until six months ago, when Gail began excavation pursuant to a building permit authorizing the erection of an industrial building situated on Lot 2 but with one wall along the boundary common with Lot 1. The excavation caused subsidence of a portion of Lot 1 that resulted in injury to Bill's building. The excavation was not done negligently or with any malicious intent to injure. In the jurisdiction, the time to acquire title by adverse possession or rights by prescription is 10 years. Bill brought an appropriate action against Gail to recover damages resulting from the injuries to the building on Lot 1. In such lawsuit, judgment should be for | Bill, if, but only if, the subsidence would have occurred without the weight of the building on Lot 1. | Bill, because a right for support, appurtenant to Lot 1, had been acquired by adverse possession or prescription. | Gail, because Lots 1 and 2 are urban land, as distinguished from rural land and, therefore, under the circumstances Bill had the duty to protect any improvements on Lot 1. | Gail, because the construction and the use to be made of the building were both authorized by the applicable law. | A | Though an adjoining owner has no right of support in his neighbor's land for his buildings, unless he has acquired it by grant or otherwise, and the latter may excavate in his *1088 land so as to cause them to fall, without committing a trespass or taking away a property right, provided the adjacent soil would not have fallen of its own weight, he may nevertheless be liable in respect to his conduct for the injury done. | mbe_825 | 847-train | [
1002
]
|
mbe_1189 | mbe | 1189 | 929 | 1998 | REAL PROP. | 196 | nan | Adam owned Blackacre. Adam entered into a written three-year lease of Blackacre with Bertha. Among other provisions, the lease prohibited Bertha from "assigning this lease, in whole or in part, and from subletting Blackacre, in whole or in part." In addition to a house, a barn, and a one-car garage, Blackacre's 30 acres included several fields where first Adam, and now Bertha, grazed sheep. During the following months, Bertha: I. By a written agreement allowed her neighbor Charles exclusive use of the garage for storage, under lock and key, of his antique Packard automobile for two years, charging him $240. II. Told her neighbor Doris that Doris could use the fields to practice her golf as long as she did not disturb Bertha's sheep. Which, if any, of Bertha's actions constituted a violation of the lease? | I only. | II only. | Both I and II. | Neither I nor II. | A | “A lease is both a contract and a conveyance.” K.F. Boackle, Mississippi Landlord and Tenant Law with Forms § 1.2 (2005). As a contract, a lease is freely assignable unless a provision in the lease expressly states the contrary. See Jeffery Jackson & Mary Miller, Encyclopedia of Mississippi Law § 21:33 (2015). | mbe_904 | 934-train | [
953
]
|
mbe_1190 | mbe | 1190 | 930 | 1998 | CRIM. LAW | 197 | nan | Defendant is charged with murder. The evidence shows that she pointed a gun at Victim and pulled the trigger. The gun discharged, killing Victim. The gun belonged to Victim. Defendant testifies that Victim told her, and she believed, that the "gun" was a stage prop that could fire only blanks, and that she fired the gun as part of rehearsing a play with Victim at his house. If the jury believes Defendant's testimony and finds that her mistaken belief that the gun was a prop was reasonable, they should find her | guilty of murder. | guilty of manslaughter. | guilty of either murder or manslaughter. | not guilty of murder or manslaughter. | D | “When an accused creates an issue of mistaken belief as to the culpable mental element of the offense, he is entitled to a defensive instruction of ‘mistake of fact.’ ” Miller, 815 S.W.2d at 585. Therefore, in the instant case, the issue before the trial court was whether appellant's purported belief, if accepted as true, negated the culpability required for murder. See, e.g., Hill v. State, 765 S.W.2d 794, 796 (Tex.Crim.App.1989) (holding appellant was entitled to instruction on mistake of fact when mistake negated culpability required for the offense). Clearly, it does. | mbe_905 | 935-train | [
5004,
12836
]
|
mbe_1355 | mbe | 1355 | 1095 | Because the ordinance is not related to the exercise of a fundamental right or based on a suspect trait, it need only rationally relate to some legitimate governmental interest. Under the Equal Protection Clause, which is implicated because the ordinance treats some city employees differently from others, a governmental classification must be necessary to promote a compelling state interest when it relates to who may exercise a fundamental right or when it is based on a suspect trait (e.g., race or national origin). If a quasi-suspect classification (e.g., gender or legitimacy) is involved, the classification will be upheld if it is substantially related to an important government interest. In all other cases, the classification is valid if there is any conceivable basis on which it might relate to any legitimate governmental interest. This "rational basis" test is used for all classifications that relate only to matters of economics or social welfare. The right of police officers and firefighters to hold second jobs is not a fundamental right that will trigger strict scrutiny. In addition, the ordinance is not based on a suspect or quasi-suspect classification. Therefore, the validity of the ordinance is judged according to the "rational basis" test. A party attacking a classification under this test bears the difficult burden of demonstrating to the court that the classification does not have a rational relationship to a legitimate interest of government. | CONST. LAW | 6 | nan | A city passed an ordinance prohibiting all of its police officers and firefighters from "moonlighting" (working a second job). The ordinance was passed to ensure that all police officers and firefighters were readily available in case an emergency should arise and for overtime work when the situation warranted it. Other city employees, including members of the city council and the city manager, had no such restrictions placed on secondary employment. A police officer who wanted to moonlight as a dancer at a nightclub within city limits brought suit in federal court, alleging that the ordinance violated her constitutional rights. How should the court rule on the constitutionality of the ordinance? | The ordinance is unconstitutional, because it restricts the officer's First Amendment rights to freedom of expression. | The ordinance is unconstitutional, because the singling out of police officers and firefighters violates equal protection. | The ordinance is constitutional, because the city has a significant interest that it seeks to regulate. | The ordinance is constitutional, because there is a rational basis for the ordinance. | D | Because the ordinance is not related to the exercise of a fundamental right or based on a suspect trait, it need only rationally relate to some legitimate governmental interest. Under the Equal Protection Clause, which is implicated because the ordinance treats some city employees differently from others, a governmental classification must be necessary to promote a compelling state interest when it relates to who may exercise a fundamental right or when it is based on a suspect trait (e.g., race or national origin). If a quasi-suspect classification (e.g., gender or legitimacy) is involved, the classification will be upheld if it is substantially related to an important government interest. In all other cases, the classification is valid if there is any conceivable basis on which it might relate to any legitimate governmental interest. This "rational basis" test is used for all classifications that relate only to matters of economics or social welfare. The right of police officers and firefighters to hold second jobs is not a fundamental right that will trigger strict scrutiny. In addition, the ordinance is not based on a suspect or quasi-suspect classification. Therefore, the validity of the ordinance is judged according to the "rational basis" test. A party attacking a classification under this test bears the difficult burden of demonstrating to the court that the classification does not have a rational relationship to a legitimate interest of government. | mbe_1038 | 939-train | [
720
]
|
mbe_29 | mbe | 29 | 16 | MBE-1972-78-part2 | nan | 30 | nan | Alex and Sam were arrested for holding up a gas station. They were taken to police headquarters and placed in a room for interrogation. As a police officer addressingboth started to give them the Miranda warnings prior to the questioning, Alex said, "Look, Sam planned the damned thing and I was dumb enough to go along with it. We robbed the place-what else is there to say?" Sam said nothing. Sam was escorted into another room and a full written confession was then obtained from Alex. If Sam is brought to trial on an indictment charging him with robbery, the fact that Sam failed to object to Alex's statement and remained silent after Alex had implicated him in the crime should be ruled | admissible because his silence was an implied admission by Sam that he had participated in the crime | admissible because a statement of a participant in a crime is admissible against another participant | inadmissible because, under the circumstances, there was no duty or responsibility on Sam's part to respond | inadmissible because whatever Alex may have said has no probative value in a trial against Sam | C | General admissibility. Except as provided in par. (b) 2., evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that the person acted in conformity therewith. This subsection does not exclude the evidence when offered for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. | mbe_2321 | 3-validation | [
961,
959
]
|
mbe_138 | mbe | 138 | 84 | MBE-1972-78-part4 | nan | 39 | Alpha and Beta made a written contract pursuant to which Alpha promised to convey a specified apartment house to Beta in return for Beta's promise (1) to convey a 100-acre farm to Alpha and (2) to pay Alpha $1,000 in cash six months after the exchange of the apartment house and the farm. The contract contained the following provision: "It is understood and agreed that Beta's obligation to pay the $1,000 six months after the exchangeof the apartment house and the farm shall be voided if Alpha has not, within three months after the aforesaid exchange, removed the existing shed in the parking area in the rear of the said apartment house." | Alpha's removal of the shed from the parking area of the apartment house is | a condition subsequent in form but precedent in substance to Beta's duty to pay the $1,000 | a condition precedent in form but subsequent in substance to Beta's duty to pay the 1,000 | a condition subsequent to Beta's duty to pay the $1,000 | not a condition, either precedent or subsequent, to Beta's duty to pay the $1,000 | A | A condition precedent is a condition or an event that must occur before a right, claim, duty, or interests arises. Compare condition subsequent. In a contract, a condition precedent is an event that must occur before the parties are obligated to perform. For example, an insurance contract may require the insurer to pay to rebuild the customer’s home if it is destroyed by fire during the policy period. The fire is a condition precedent. The fire must occur before the insurer is obligated to pay. | mbe_2329 | 11-validation | [
387
]
|
mbe_279 | mbe | 279 | 166 | MBE-1978-83-part1 | nan | 131 | Miller is tried for armed robbery of the First Bank of City. | The prosecutor offers the testimony of a bartender that when he saw the money in Miller's wallet, he said, "You must have robbed a bank," to which Miller made no reply. This evidence is | admissible to prove that Miller's conduct caused the bartender to believe that Miller robbed the bank | admissible as a statement made in the presence of the defendant | inadmissible, because it would violate Miller's privilege against self-incrimination | inadmissible, because Miller had no reason to respond to the bartender's statement | D | “Although relevant, evidence may be excluded by the trial court if the court determines that the prejudicial effect of the evidence outweighs its probative value.... Of course, [a]ll adverse evidence is damaging to one's case, but it is inadmissible only if it creates undue prejudice so that it threatens an injustice were it to be admitted.... The test for determining whether evidence is unduly prejudicial is not whether it is damaging to the defendant but whether it will improperly arouse the emotions of the jury.... Reversal is required only whe[n] an abuse of discretion is manifest or whe[n] injustice appears to have been done.” (Citations omitted; emphasis added; internal quotation marks omitted.) State v. Wilson, 308 Conn. 412, 429–30, 64 A.3d 91 (2013). | mbe_2344 | 26-validation | [
4335
]
|
mbe_584 | mbe | 584 | 381 | 1991-Feb | EVIDENCE | 31 | nan | Deeb was charged with stealing furs from a van. At trial, Wallace testified she saw Deeb take the furs. The jurisdiction in which Deeb is being tried does not allow in evidence lie detector results. On cross-examination by Deeb's attorney, Wallace was asked, "The light was too dim to identify Deeb, wasn't it?" She responded, "I'm sure enough that it was Deeb that I passed a lie detector test administered by the police." Deeb's attorney immediately objects and moves to strike. The trial court should | grant the motion, because the question was leading. | grant the motion, because the probative value of the unresponsive testimony is substantially outweighed by the danger of unfair prejudice. | deny the motion, because it is proper rehabilitation of an impeached witness. | deny the motion, because Deeb's attorney "opened the door" by asking the question. | B | As articulated by the Federal Advisory Committee in its Note to Rule 403, the “unfair prejudice” language contained in Rule 403 refers to an undue tendency on the part of admissible evidence to suggest a decision made on an improper basis. “Unfair prejudice refers to the tendency of the proposed evidence to adversely affect the objecting party's position by injecting considerations extraneous to the merits of the lawsuit, such as the jury's bias, sympathy, anger or shock.” People v. Goree, 132 Mich.App. 693, 349 N.W.2d 220 (1984). “Unfair prejudice as used in Rule 403 does not mean the damage to a defendant's case that results from legitimate probative force of the evidence.” United States v. Schrock, 855 F.2d 327, 334–35 (6th Cir.1988). Proffered evidence should therefore not be excluded by the district court as unfairly prejudicial simply because it damages the defendant's case. People v. District Court, 785 P.2d at 147. Obviously, evidence proffered by the prosecutor is prejudicial, but not all evidence unfairly prejudices a defendant. United States v. Chalan, 812 F.2d 1302, 1308 (10th Cir.1987). | mbe_2374 | 56-validation | [
12613
]
|
mbe_803 | mbe | 803 | 578 | 1991-July | CONST. LAW | 54 | nan | The legislature of the state of Chetopah enacted a statute requiring that all law enforcement officers in that state be citizens of the United States. Alien, lawfully admitted to permanent residency five years before the enactment of this statute, sought employment as a forensic pathologist in the Chetopah coroner's office. He was denied such a job solely because he was not a citizen. Alien thereupon brought suit in federal district court against appropriate Chetopah officials seeking to invalidate this citizenship requirement on federal constitutional grounds. The strongest ground upon which to attack this citizenship requirement is that it | constitutes an ex postfJacto law as to previously admitted aliens. | deprives an alien of a fundamental right to employment without the due process of law guaranteed by the Fourteenth Amendment. | denies an alien a right to employment in violation of the privileges and immunities clause of the Fourteenth Amendment. | denies an alien the equal protection of the laws guaranteed by the Fourteenth Amendment. | D | The Court has ruled that classifications by a State that are based on alienage are “inherently suspect and subject to close judicial scrutiny.” Graham v. Richardson, 403 U.S. 365, 372, 91 S.Ct. 1848, 1852, 29 L.Ed.2d 534 (1971). See Examining Board v. Flores de Otero, 426 U.S. 572, 601-602, 96 S.Ct. 2264, 2281, 49 L.Ed.2d 65 (1976); In re Griffiths, 413 U.S., at 721, 93 S.Ct. at 2854, 37 L.Ed.2d 910; Sugarman v. Dougall, 413 U.S. 634, 642, 93 S.Ct. 2842, 2847, 37 L.Ed.2d 853 (1973). In undertaking this scrutiny, “the governmental interest claimed to justify the discrimination is to be carefully examined in order to determine whether that interest is legitimate and substantial, and inquiry must be made whether the means adopted to achieve the goal are necessary and precisely drawn.” Examining Board v. Flores de Otero, 426 U.S., at 605, 96 S.Ct., at 2283. See In re Griffths, 413 U.S., at 721-722, 93 S.Ct., at 2854-2855. Alienage classifications by a State that do not withstand this stringent examination cannot stand.8 | mbe_2397 | 79-validation | [
1189
]
|
mbe_885 | mbe | 885 | 653 | 1991-July | CRIM. LAW | 137 | nan | Despondent over losing his job, Wilmont drank all night at a bar. While driving home, he noticed a car following him and, in his intoxicated state, concluded he was being followed by robbers. In fact, a police car was following him on suspicion of drunk driving. In his effort to get away, Wilmont sped through a stop sign and struck and killed a pedestrian. He was arrested by the police. Wilmont is prosecuted for manslaughter. He should be | acquitted, because he honestly believed he faced an imminent threat of death or severe bodily injury. | acquitted, because his intoxication prevented him from appreciating the risk he created. | convicted, because he acted recklessly and in fact was in no danger. | convicted, because he acted recklessly and his apprehension of danger was not reasonable. | D | To convict for a violation of Code § 18.2-36.1(B), the Commonwealth must prove, inter alia, conduct by an accused “so gross, wanton and culpable as to show a reckless disregard for human life[.]” Code § 18.2-36.1(B). 1 Such conduct “has come to be known as ‘criminal negligence’ ” in the context of common law vehicular involuntary manslaughter and requires “ ‘acts of commission or omission of a wanton or willful nature, showing a reckless or indifferent disregard of the rights of others, under circumstances reasonably calculated to produce injury ... and the offender knows or is charged with the knowledge of, the probable results of his acts.’ ” Keech v. Commonwealth, 9 Va.App. 272, 277, 279, 386 S.E.2d 813, 816, 817 (1989) (emphasis omitted) (citations omitted). | mbe_2405 | 87-validation | [
9935,
11078,
12485
]
|
mbe_1039 | mbe | 1039 | 787 | 1998 | EVIDENCE | 44 | nan | Plaintiff's estate sued Defendant Stores claiming that Guard, one of Defendant's security personnel, wrongfully shot and killed Plaintiff when Plaintiff fled after being accused of shoplifting. Guard was convicted of manslaughter for killing Plaintiff. At his criminal trial Guard, who was no longer working for Defendant, testified that Defendant's security director had instructed him to stop shoplifters "at all costs." Because Guard's criminal conviction is on appeal, he refuses to testify at the civil trial. Plaintiff's estate then offers an authenticated transcript of Guard's criminal trial testimony concerning the instructions of Defendant's security director. This evidence is | admissible as a statement of an agent of a party-opponent. | admissible, because the instruction from the security director is not hearsay. | admissible, although hearsay, as former testimony. | inadmissible, because it is hearsay not within any exception. | D | For purposes of exception to hearsay rule for admissions by a party-opponent, an “admission” is a statement made by a party-opponent or by one in privity with or identified in legal interest with that party. | mbe_2424 | 106-validation | [
961,
4001
]
|
mbe_69 | mbe | 69 | 43 | MBE-1972-78-part3 | nan | 20 | Assume for the purposes of these questions that you are counsel to the state legislative committee that is responsible for real estate laws in your state. | The committee wants you to draft legislation to make all restrictions on land use imposed by deeds (now or hereafter recorded) unenforceable in the future so that public land-use planning through zoning will have exclusive control in matters of land use. Which of the following is LEAST likely to be a consideration in the drafting of such legislation? | Compensation for property rights taken by public authority | Impairment of contract | Sovereign immunity | Police power | C | Sovereign immunity means that the United States may not be sued without its consent and the existence of consent is a prerequisite for jurisdiction. United States v. Mitchell, 463 U.S. 206, 212, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983). | mbe_2609 | 3-test | [
1345
]
|
mbe_118 | mbe | 118 | 70 | MBE-1972-78-part4 | nan | 18 | nan | In a contract suit between Terrell and Ward. Ward testifies that he recalls having his first conversation with Terrell on January 3. When asked how he remembers the date, he answers, "In the conversation, Terrell referred to a story in that day's newspaper announcing my daughter's engagement." Terrell's counsel moves to strike the reference to the newspaper story. The judge should | grant the motion on the ground that the best evidence rule requires production of the newspaper itself | grant the motion, because the reference to the newspaper story does not fit within any established exception to the hearsay rule | deny the motion on the ground that the court may take judicial notice of local newspapers and their contents | deny the motion on the ground that a witness may refer to collateral documents without providing the documents themselves | D | anything may be used to refresh a witness' recollection, even inadmissible evidence. See United States v. Rappy, 157 F.2d 964, 967 (2d Cir.1946). However, the court has the discretion to withhold any writing from a witness where the judge believes that the document will be a source of direct testimony rather than the key to refreshing the witness' independent recollection. See Strickland, 128 F.3d at 1430. | mbe_2616 | 10-test | [
7891
]
|
mbe_640 | mbe | 640 | 430 | 1991-Feb | TORTS | 88 | nan | While driving his car, Plaintiff sustained injuries in a three-car collision. Plaintiff sued the drivers of the other two cars, D-l and D-2, and each defendant crossclaimed against the other for contribution. The jurisdiction has adopted a rule of pure comparative negligence and allows contribution based upon proportionate fault. The rule of joint and several liability has been retained. The jury has found that Plaintiff sustained damages in the amount of $100,000, and apportioned the causal negligence of the parties as follows: Plaintiff 40%, D-l 30%, and D-2 30%. How much, if anything, can Plaintiff collect from D-1, and how much, if anything, can D-l then collect from D-2 in contribution? | Nothing, and then D-l can collect nothing from D-2. | $30,000, and then D-l can collect nothing from D-2. | $40,000, and then D-l can collect $10,000 from D-2. | $60,000, and then D-l can collect $30,000 from D-2. | D | . . . the common-law doctrine of joint and several liability. This doctrine provides, as a general matter, “that when two or more defendants tortiously contribute to the same, indivisible injury, each defendant may be held jointly and severally liable for the entire injury.” Best v. Taylor Machine Works, 179 Ill.2d 367, 423, 228 Ill.Dec. 636, 689 N.E.2d 1057 (1997). | mbe_2666 | 60-test | [
13803
]
|
mbe_765 | mbe | 765 | 544 | 1991-July | EVIDENCE | 15 | nan | In a prosecution of Drew for forgery, the defense objects to the testimony of West, a government expert, on the ground of inadequate qualifications. The government seeks to introduce a letter from the expert's former criminology professor, stating that West is generally acknowledged in his field as well qualified. On the issue of the expert's qualifications, the letter may be considered by | the jury, without regard to the hearsay rule. | the judge, without regard to the hearsay rule. | neither the judge nor the jury, because it is hearsay not within any exception. | both the judge and the jury, because the letter is not offered for a hearsay purpose. | B | When a matter goes to trial, the specific training and experience of a potential expert witness can be explored on the record so that the trial court may ascertain whether that witness qualifies as an expert in the field at issue. See Rittenhouse v. Hanks, 2001 PA Super 153, 777 A.2d 1113 (2001) (qualification of expert witness at trial rests within the sound discretion of the trial judge). This also provides the jury with a basis on which to determine the expert's credibility. In the present case, the matter has not yet gone to trial. Therefore, the correct opportunity for the trial court to evaluate fully the training and experience of Dr. Merikangas and Dr. Gramlich has not yet arisen. See Resolution Trust Corp. v. Urban Redevelopment Authority, 536 Pa. 219, 225, 638 A.2d 972, 975 (1994) (credibility of evidence is not a proper consideration at the summary judgment stage). | mbe_2686 | 80-test | [
7891
]
|
mbe_874 | mbe | 874 | 644 | 1991-July | TORTS | 126 | Dumont, a real estate developer, was trying to purchase land on which he intended to build a large commercial development. Perkins, an elderly widow, had rejected all of Dumont's offers to buy her ancestral home, where she had lived all her life and which was located in the middle of Dumont's planned development. Finally, Dumont offered her $250,000. He told her that it was his last offer and that if she rejected it, state law authorized him to have her property condemned. Perkins then consulted her nephew, a law student, who researched the question and advised her that Dumont had no power of condemnation under state law. Perkins had been badly frightened by Dumont's threat, and was outraged when she learned that Dumont had lied to her. | If Perkins asserts a claim based on misrepresentation against Dumont, will she prevail? | Yes, if Dumont knew he had no legal power of condemnation. | Yes, if Dumont tried to take unfair advantage of a gross difference between himself and Perkins in commercial knowledge and experience. | No, if Dumont's offer of $250,000 equaled or exceeded the market value of Perkins's property. | No, because Perkins suffered no pecuniary loss. | D | To prevail on an action for fraudulent misrepresentation, a plaintiff must establish: “(1) a false statement concerning a material fact; (2) the representer's knowledge that the representation is false; (3) an intention that the representation induce another to act on it; and (4) consequent injury by the party acting in reliance on the representation.” Specialty Marine & Indus. Supplies, Inc. v. Venus, 66 So.3d 306, 310 (Fla. 1st DCA 2011). | mbe_2696 | 90-test | [
1357
]
|
mbe_912 | mbe | 912 | 676 | 1991-July | CRIM. LAW | 165 | nan | In which of the following situations is the defendant most likely to be convicted, even though he did not intend to bring about the harm that the statute defining the offense is designed to prevent? | Defendant was the president of an aspirin manufacturing company. A federal inspector discovered that a large number of aspirin tablets randomly scattered through several bottles in a carton ready for shipment were laced with arsenic. Defendant is charged with attempted introduction of adulterated drugs into interstate commerce. | Defendant struck Victim in the face with a baseball bat, intending to inflict a serious injury. Victim died after being hospitalized for three days. Defendant is charged with murder. | Defendant burglarized a jewelry store, intending to steal some diamonds. As he entered the store, he short-circuited the store's burglar alarm system, thereby preventing a warning of his entry to police. The smoldering wires eventually caused a fire that destroyed the store. Defendant is charged with arson. | Defendant wanted to frighten Victim's friend by placing a plastic rattlesnake in his lunch box. When Victim mistakenly took the lunch box and opened it, believing it to be his own, the plastic rattlesnake popped out. As a result of the fright, Victim suffered a heart attack and died. Defendant is charged with manslaughter. | B | The indictment alleged that appellant committed aggravated assault by making “an assault upon the person of Bruce Neave, with a shotgun, a deadly weapon.” The evidence used to prove that appellant perpetrated the aggravated assault of Bruce Neave, that he assaulted him with the shotgun, was used to establish that appellant committed the crime of malice murder. As the aggravated assault offense was established by the same but less than all of the facts required to establish the offense of murder, the aggravated assault was an offense included in the malice murder conviction, and the conviction for the aggravated assault of Bruce Neave merged by fact into **749 the malice murder conviction. See id.; Montes v. State, 262 Ga. 473, 474(1), 421 S.E.2d 710 (1992). | mbe_2699 | 93-test | [
2708,
12580
]
|
mbe_1010 | mbe | 1010 | 761 | 1998 | CRIM. LAW | 15 | nan | Joe and Marty were coworkers. Joe admired Marty's wristwatch and frequently said how much he wished he had one like it. Marty decided to give Joe the watch for his birthday the following week. On the weekend before Joe's birthday, Joe and Marty attended a company picnic. Marty took his watch off and left it on a blanket when he went off to join in a touch football game. Joe strolled by, saw the watch on the blanket, and decided to steal it. He bent over and picked up the watch. Before he could pocket it, however, Marty returned. When he saw Joe holding the watch, he said, "Joe, I know how much you like that watch. I was planning to give it to you for your birthday. Go ahead and take it now." Joe kept the watch. Joe has committed | larceny. | attempted larceny. | embezzlement. | no crime. | A | Larceny is a common law crime and is defined as “the wrongful or fraudulent taking of another's property without his permission and with the intent to permanently deprive the owner of that property.” Britt v. Commonwealth, 276 Va. 569, 574, 667 S.E.2d 763, 765 (2008). Grand larceny is a form of larceny that “includes **332 the taking, not from the person of another, of goods having a value of $200 or more.” Id. (citing Code § 18.2–95). | mbe_2704 | 99-test | [
8074
]
|
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