UNIVERSITY OF SAN CARLOS

P. DEL ROSARIO ST., CEBU CITY

COLLEGE OF LAW

POSITION PAPER

Members:

SCADE LAW FIRM

Cavalida, Ervin Michael B.
Elizan, Ayamae E.
Montejo, Stiffany Ruth B.
Soy, Maria Carmen C.
Tubat, Divina Mari A.

Submitted to:

Atty. Edmar Lerios

Date Submitted:
EH309
30 August 2017
I. Issue:

Whether or not, the defendants, who have been trapped in

the cave for 23 days without no provision, who mutually
agree with one another to sacrifice the life of one for the
benefit of all, are guilty beyond reasonable doubt of the
crime of murder against Roger Whetmore.

II. Statement of Facts:

The four defendants are members of the Speluncean

Society, an organization of amateurs interested in the
exploration of caves. Early in May of 4299 they, in the
company of Roger Whetmore, then also a member of the
Society, penetrated into the interior of a limestone cavern
of the type found in the Central Plateau of this
Commonwealth. While they were in a position remote
from the entrance to the cave, a landslide occurred.
Heavy boulders fell in such a manner as to block
completely the only known opening to the cave. When
the men discovered their predicament they settled
themselves near the obstructed entrance to wait until a
rescue party should remove the detritus that prevented
them from leaving their underground prison. On the
failure of Whetmore and the defendants to return to their
homes, the Secretary of the Society was notified by their
families. It appears that the explorers had left indications
at the headquarters of the Society concerning the location
of the cave they proposed to visit. A rescue party was
promptly dispatched to the spot.

The task of rescue proved one of overwhelming difficulty.

It was necessary to supplement the forces of the original
party by repeated increments of men and machines,
which had to be conveyed at great expense to the remote
and isolated region in which the cave was located. A huge
temporary camp of workmen, engineers, geologists, and
other experts was established. The work of removing the
obstruction was several times frustrated by fresh
landslides. In one of these, ten of the workmen engaged
in clearing the entrance were killed. The treasury of the
Speluncean Society was soon exhausted in the rescue
effort, and the sum of eight hundred thousand frelars,
raised partly by popular subscription and partly by
legislative grant, was expended before the imprisoned
men were rescued. Success was finally achieved on the
thirty-second day after the men entered the cave.
Since it was known that the explorers had carried with
them only scant provisions, and since it was also known
that there was no animal or vegetable matter within the
cave on which they might subsist, anxiety was early felt
that they might meet death by starvation before access to
them could be obtained. On the twentieth day of their
imprisonment it was learned for the first time that they
had taken with them into the cave a portable wireless
machine capable of both sending and receiving messages.
A similar machine was promptly installed in the rescue
camp and oral communication established with the
unfortunate men within the mountain. They asked to be
informed how long a time would be required to release
them. The engineers in charge of the project answered
that at least ten days would be required even if no new
landslides occurred. The explorers then asked if any
physicians were present, and were placed in
communication with a committee of medical experts. The
imprisoned men described their condition and the rations
they had taken with them, and asked for a medical
opinion whether they would be likely to live without
food for ten days longer. The chairman of the committee
of physicians told them that there was little possibility of
this. The wireless machine within the cave then remained
silent for eight hours. When communication was re-
established the men asked to speak again with the
physicians. The chairman of the physicians' committee
was placed before the apparatus, and Whetmore,
speaking on behalf of himself and the defendants, asked
whether they would be able to survive for ten days longer
if they consumed the flesh of one of their number. The
physicians' chairman reluctantly answered this question
in the affirmative. Whetmore asked whether it would be
advisable for them to cast lots to determine which of them
should be eaten. None of the physicians present was
willing to answer the question. Whetmore then asked if
there were among the party a judge or other official of the
government who would answer this question. None of
those attached to the rescue camp was willing to assume
the role of advisor in this matter. He then asked if any
minister or priest would answer their question, and none
was found who would do so. Thereafter no further
messages were received from within the cave, and it was
assumed (erroneously, it later appeared) that the electric
batteries of the explorers' wireless machine had become
exhausted. When the imprisoned men were finally
released it was learned that on the twenty-third day after
their entrance into the cave Whetmore had been killed
and eaten by his companions.
 From the testimony of the defendants, which was
accepted by the jury, it appears that it was Whetmore
who first proposed that they might find the nutriment
without which survival was impossible in the flesh of one
of their own number. It was also Whetmore who first
proposed the use of some method of casting lots, calling
the attention of the defendants to a pair of dice he
happened to have with him. The defendants were at first
reluctant to adopt so desperate a procedure, but after the
conversations by wireless related above, they finally
agreed on the plan proposed by Whetmore. After much
discussion of the mathematical problems involved,
agreement was finally reached on a method of
determining the issue by the use of the dice.

Before the dice were cast, however, Whetmore declared

that he withdrew from the arrangement, as he had
decided on reflection to wait for another week before
embracing an expedient so frightful and odious. The
others charged him with a breach of faith and proceeded
to cast the dice. When it came Whetmore's turn, the dice
were cast for him by one of the defendants, and he was
asked to declare any objections he might have to the
fairness of the throw. He stated that he had no such
objections. The throw went against him, and he was then
put to death and eaten by his companions.

After the rescue of the defendants, and after they had

completed a stay in a hospital where they underwent a
course of treatment for malnutrition and shock, they were
indicted for the murder of Roger Whetmore.

III. Summary of Arguments:

The defendants should be acquitted from the crime of

murder filed against them as their situation which
compelled them to do such horrendous act falls beyond the
ambit and reasons of the law. There is a purposive approach
to the interpretation of the law if the literal application
would lead to injustice or absurdities. The courts should not
come deaf to what truly happened with the survivors while
they were trapped in the cave and interpret the law as to
what it intended to achieve. Furthermore, we see it suitable
for the court to tilt the scale of justice in favor of the
defendants and to consider the circumstance of state of
necessity and fear of grave danger of death of all as the
primary defense to spare their lives which they fought hard
to keep, which resulted to the death of Roger Whetmore. It
would be an unjust and absurd decision to convict and
sentence the defendants herein considering all what they
 have gone through during that 32-day ordeal. Let alone the
life of Roger Whetmore, whose life was sacrificed that they
may live and of course, the lives of the ten rescuers who
perished in order to save them.

IV. Arguments:

A. The law of nature, not the positive law of the

Commonwealth including its precedents, is applicable on
this case taking into consideration the unusual
circumstance that the defendants had to go through.

In the case of Republic vs. Sandiganbayan, 1the first self-

evident principle of natural law is that good is to be
pursued and done, and evil is to be avoided. All other
precepts of the natural law are based upon this, so that
whatever the practical reason naturally apprehends as
mans good (or evil) belongs to the precept of the natural
law as something to be done or avoided. Because good is
to be sought and evil avoided, and good is that which is
in accord with the nature of a given creature or the
performance of a creatures proper function, then the
important question to answer is what is human nature or
the proper function of man. In the case of Imbong vs.
Ochoa, 2 natural law, is inherent and, therefore, not a
creation of, or dependent upon a particular law, custom,
or belief. It precedes and transcends any authority or the
laws of men.

In the case at bar, undoubtedly, the explorers were under

the predicament of survival. The instinct of self-
preservation, being innate in all of us, pursued their
minds to the most gruesome decision. However, we
should not discount the fact, that such a morbid solution
to their situation, which was to sacrifice the life of one to
save the others, was put into a consensual agreement of
everyone concerned.

The conviction of the defendants under the precepts of

the plain meaning of the provision would be a violation
of natural law. As defined above, it is the higher meaning
of every law. The reason of such law is not to convict and
interdict people who have done no wrong to the society,
otherwise, its purpose of protecting good against evil
would be defeated. The defendants should be accorded
with such interpretation because the situation presented
itself to warrant such behavior. They never had an

1 Republic v. Sandiganbayan, G.R. No. 104768, [July 21, 2003], 454 PHIL 504-642
2 Spouses Imbong v. Ochoa, Jr., G.R. Nos. 204819, [April 8, 2014], 732 PHIL 1-99
 intention to do a reprehensible act against the society, in
fact, the society recognized their goodness by rescuing
them and sacrificing lives in the process.

The explorers are inherently good people but the

situation they had was to no avail. The question of killing
and eating their comrade was not easy for them. Such a
question was the demarcation between life and death,
such should be particularly considered by the courts.
This is the primary distinction that differentiates this case
from the other murder cases. If the courts render
conviction, it would be a deliberate deviation from the
reason that such law was passed.

B. In the case of Secretary of Justice vs. Koruga, 3the general

rule in construing words and phrases used in a statute is
that in the absence of legislative intent to the contrary,
they should be given their plain, ordinary, and common
usage meaning. However, a literal interpretation of a
statute is to be rejected if it will operate unjustly, lead to
absurd results, or contract the evident meaning of the
statute taken as a whole. After all, statutes should receive
a sensible construction, such as will give effect to the
legislative intention and so as to avoid an unjust or an
absurd conclusion.

In another case, Chavez vs. Judicial and Bar Council,

4applying a verba legis or strictly literal interpretation of
the constitution may render its provisions meaningless
and lead to inconvenience, an absurd situation, or an
injustice. To obviate this aberration, and bearing in mind
the principle that the intent or the spirit of the law is the
law itself, resort should be made to the rule that the spirit
of the law controls its letter.

In the case at bar, it is clear that the law never anticipated

this kind of situation. Murder, as a reprehensible
infraction of the law, is the unreasonable taking of
someone elses life. In the situation of the explorers, the
true realm in question was for the survival of the majority
of them. If not for survival, the explorers would have not
formed a pact of sacrificing one of them for the good of
all.

It would be absurd to convict the explorers for killing one

for the good of all. It should be seen as protection of the
four lives in the sacrifice of one. The situation and

3 Secretary of Justice vs. Koruga, G.R. No. 166199 April 24, 2009
4 Chavez vs. Judicial Bar Council, G.R. No. 202242 July 17, 2012
 circumstance would not permit a reasonable conviction.
Making it within the corners of the law is absurd and
oppressive not only to the explorers themselves but most
especially to those who sacrificed their lives for the
recovery of the remaining explorers.

C. The act of the explorers does not constitute a felony as

defined and categorized in the Revised Penal Code.

Under the Revised Penal Code, Article 3 provides:

Acts and omissions punishable by law are felonies

(delitos).

Felonies are committed not only by means of deceit (dolo)

but also by means of fault (culpa).

There is deceit when the act is performed with deliberate

intent; and there is fault when the wrongful act results
from imprudence, negligence, lack of foresight, lack of
skill.

Felonies are classified into two, mala in se and mala

prohibita. Mala in se means criminal acts that are wrong
because they violate the moral, public, or natural
principles of the society. On the other hand, mala
prohibita means criminal acts that are wrong because
they violate a statute or law rather than being an action
that harms or offends society. 5 (Taelonnda Sewell,
www.legalmatch.com).
In Rivera v. People, 6we considered the following factors to
determine the presence of intent to kill, namely: (1) the
means used by the malefactors; (2) the nature, location,
and number of wounds sustained by the victim; (3) the
conduct of the malefactors before, during, or immediately
after the killing of the victim; and (4) the circumstances
under which the crime was committed and the motives of
the accused. We have also considered as determinative
factors the motive of the offender and the words he
uttered at the time of inflicting the injuries on the victim.

In the case at bar, the facts as presented above do not

constitute the definition of a felony which is punishable
under the Revised Penal Code. The actions would not fall
in any of the categories that the law so provide; which
would make it clear that the situation is beyond the ambit

5 Taelonnda Sewell, Mala In Se and Mala Prohibita Crimes, available at

https://www.legalmatch.com/law-library/article/mala-in-se-crimes.html last visited on August 27,
2017
6 Rivera vs. People, G.R. No. 142773, January 28, 2003, 396 SCRA 386
 of the law. From the inquiries made by Whetmore in this
case, their subsequent acts were clearly justified. Taking
into consideration of the situation that they were in, stuck
inside a cave in which the thickness is 500ft from the
outside, with no food, water and less air which are
necessary for their survival; they were not in a normal
state of life. They were in a matter of life and death
situation, in which the definition of a felony wont apply
for justifiable reasons. The fact that they sought for advice
before finally arriving to such a decision is a clear
manifestation that they never intended to do any criminal
act against each other.

D. The act of the explorers in sacrificing the life of Roger

Whetmore is justified by the circumstances that they were
faced inside the cave without provisions, as there was a
necessity of survival of the majority.

7Article 11 paragraph 4 of the Revised Penal Code

provides:

Justifying Circumstances xxxx any person who, in order

to avoid an evil or injury, does an act which causes
damage to another, provided that the following requisites
are present:

First: That the evil sought to be avoided actually exists;

Second: That the injury feared to be greater than that

done to avoid it;

Third: That there be no other practical and less harmful

means of preventing it.

In the case at bar, it is evidently shown that the intention

of the explorers is not to cause harm to anyone of them,
they were not moved by revenge, remorse, or other evil
desires. They consulted the proposition first with the
people whom they thought could shed light to such a
dark situation there were in. The first requisite is present
in the case herein, that the chance of their survival is
minimal which is under 8Article 11 paragraph 4, (1) of the
RPC which states That the evil sought to be avoided
actually exists which is death. The second requisite
under 9Article 11 paragraph 4 (2), of the RPC which states
That the injury feared to be greater than that done to
avoid it which means that death of all is avoided for the

7 Luis B. Reyes, The Revised Penal Code Criminal Law Book 1 Articles 1-113 (19th Ed. 2017) (pg. 209)
8 Ibid., at reference 7 supplying the requisites of Article 11 paragraph 4
9 Ibid., at 8
 sacrifice of the life of one. Lastly, the situation itself
correlates with the third requisite of 10 Article 11
paragraph 4 (3) of the RPC which states That there be no
other practical and less harmful means of preventing it.
This justification shows when Whetmore asked on behalf
of himself and his companions the probability of survival
in consuming ones flesh. In addition to the justification,
Whetmore even inquired if it would be better if they cast
lots as to who among them should be eaten. They sought
advices first before a judge or official of the government,
physicians and even a priest or minister, who were all
present at that time yet not one of them gave an answer.
We can correlate the maxim of the Revised Penal Code
which states actus reus non facit reum nisi mens sit rea -
the act is not criminal unless the mind is guilty and the
situation aforementioned. Thus, they did not constitute a
crime.

E. The explorer acted under the impulse of uncontrollable

fear to survive in the situation.

Article 12 paragraph 6 of the Revised Penal Code

provides:

Exempting Circumstance xxxx any person who acts

under the impulse of an uncontrollable fear of an equal or
greater injury.

In the case of People vs. Petenia, 11the following requisites

of uncontrollable fear to be invoked successfully: a.)
existence of an uncontrollable fear; b.) the fear must be
real and imminent; and c.) the fear of an injury is greater
than or at least equal to that committed.

In the case of People vs. Bagalawis, 78 Phil. 174, xxx 12that

in the eye of the law, nothing will excuse the act of joining
an enemy, but the fear of immediate death; not the fear of
any inferior personal injury, nor the apprehension of any
outrage upon property. But had the defendant enlisted
merely from the fear of famishing, and with a sincere
intention to make this escape, the fear could not surely
always continue, nor could his intention remain
unexecuted for so long a period. 13(Republica vs. M'Carty,
2 Dall., 36; 1 Law ed., 300, 301).

10 Ibid., at 8
11 People vs. Petenia, No. L-51256, August 12, 1986, 143 SCRA 361, 369
12 People vs. Bagalawis, 78 Phil. 174
13 Republica vs. M'Carty, 2 Dall., 36; 1 Law ed., 300, 301, cited in, Ibid. at 7 (pg. 247)
 In the case of People vs. Regala, et al., G.R. No. L-1751, May
28, 1951, 14Timoteo Montemayor was accused of murder,
for having told his two companions to fetch shovels and
dig a grave and for having walked behind Hukbalahap
killers to the place of the execution of the victim. It
appears that the two Hukbalahaps were ruthless killers
and were then in a mood to inflict extreme and summary
punishment and were then in a mood to inflict extreme
and summary punishment for disobedience to the
command. The place was isolated, escape was at least
risky, and protection by lawfully constituted authorities
was out of reach. The accused was acquitted, for having
acted under the impulse of uncontrollable fear of an equal
or greater injury.

In the case of U.S. vs. Exaltacion, 3 Phil. 339, 15Liberato

Exaltacion and Buenaventura Tanchinco were compelled
under fear of death to swear allegiance to the Katipunan
whose purpose was to overthrow the government by
force of arms. The accused was not held criminally liable
for rebellion, because they joined the rebels under the
impulse of an uncontrollable fear of an equal or greater
injury.

In the case at bar, the Speluncean Explorers should not be

held guilty of the crime of murder because they were just
compelled to do an act of equal or greater injury which is
death of all five of them. Their fear of the delay of rescue
as they lost contact to the outside world is a great
indication that they were left with no other choice but go
with the plan of sacrificing one for the benefit of all.

F. The explorers acted under starvation.

Starvation can affect mood and decision making.

f.1 The cells of your brain rely on energy from food just like
any other cell in the body. Without the nutrition that food
supplies, both your neural function and brain chemistry
can be negatively impacted. This in turn affects just about
every facet of your bodily function that the brain is
involved in, including concentration, memory, sleep
patterns, mood and your motor skills.
16 (http://www.livestrong.com/article/482050-how-does-

not-eating-affect-the-brain/)

14 People vs. Regala, et al., G.R. No. L-1751, May 28, 1951, cited in Ibid. at 7 (pg. 247)
15 U.S. vs. Exaltacion, 3 Phil. 339, cited in Ibid. at 7 (pg. 245)
16 Chris Sherwood, How Does Eating Affect the Brain?, Malnutrition and the Brain, available at

http://www.livestrong.com/article/482050-how-does-not-eating-affect-the-brain/ last visited on

June 26, 2015
 f.2 According to researchers, in humans, its likely that
something similar happens, with hunger triggering a shift
in brain activity involved in sensory perception. The way
we classify objects is likely to be significantly affected by
how hungry we are which may explain why food can
be so difficult to ignore when you havent eaten in a
while. 17 (www.huffingtonpost.com/entry/hunger-
decision-making-study_us_5715402fe4b0018f9cbacbe5)

This research indicates that hunger influences behavior,

making us humans more likely to go after risky food
targets.

f.3 Hungry people are often difficult to deal with. A good

meal can affect more than our mood, it can also influence
our willingness to take risks. This phenomenon is also
apparent across a very diverse range of species in the
animal kingdom. Experiments conducted on the fruit fly,
Drosophila, by scientists at the Max Planck Institute of
Neurobiology in Martinsried have shown that hunger not
only modifies behavior, but also changes pathways in the
brain.

Animal behavior is radically affected by the availability

and amount of food. Studies proved that the willingness
of many animals to take risks increases or declines
depending on whether the animal is hungry or full. For
example, a predator only hunts more dangerous prey
when it is close to starvation. This behavior has also been
documented in the lives of the humans in the recent years
which one study showed that hungry subjects took
significantly more financial risks than their sated
colleagues.
18(www.mpg.de/7422218/hunger-behaviour)

f.4 The research team is confident the findings in their report

are replicable in many species of animals, including
humans. Grunwald-Kladow pointed to a recent study
that suggested hungry people are more likely to take
financial risks such as gambling.
19 (www.medicaldaily.com/hangry-real-thing-hunger-
pangs-not-only-worsen-your-mood-trigger-risky-
behavior-247129)

17 Carolyn Gregoire, This Is What Feeling Hungry Does To Your Brain, available at
http://www.huffingtonpost.com/entry/hunger-decision-making-
study_us_5715402fe4b0018f9cbacbe5 last visited on April 19, 2016
18 Max-Plank-Gesellschaft, Hunger Affects Decision Making and Perception of Risk, involves the study

of the behavior of a fruit fly depending on its nutritional state, available at

https://www.mpg.de/7422218/hunger-behaviour last visited on June 25, 2013
 f.5 Hunger had huge effects on a decision that should be,
and presumably was, taken very seriously.
20(www.psychologytoday.com)

Based on reliable research source, human brain is greatly

affected when a person is hungry not just merely sensing
hunger but also with the decision making skills and
mood. When a person is hungry, his mood changes and
he is being risky like gambling and decides things
immediately when such decisions should have been made
with a lot of seriously and carefully. The situation also
worsened when hunger resulted to anxiety and
depression. This clearly shows that by deciding to kill
Roger Whetmore, the conditions of the defendants brain
were profoundly affected.

G. The explorers acted in a mood of sacrifice to save more

lives in their group.

21 Sacrifice
is defined by Robert Phillips as giving up
something for a greater good, whatever that good may be,
as an expression of love for God and man, so as to
enhance not only that greater good, but also the value of
what is given as well as the life of the one who gave it.
(soundfaith.com)

22 Inthe news published last June 10, 2017, 13 Marines

were killed and 40 were wounded in a 14-hour battle in
Marawi with the Islamic militants who had overrun parts
of southern Marawi City. With regards to this situation,
soldiers solely do their duties to give the citizens
protection and to defend our country as well. They will
risk their lives in times of war just to keep our
sovereignty from the invaders. They will sacrifice their
valuable lives for the greater good and glory. All of these
were stated in Article II, section 3 of the 1987 Constitution
which provides:

19 Justin Caba, Hangry Is A Real Thing: Hunger Pang Not Only Worsen Your Mood, But Trigger the
Risky Behavior, available at http://www.medicaldaily.com/hangry-real-thing-hunger-pangs-not-
only-worsen-your-mood-trigger-risky-behavior-247129 last visited on June 25, 2013
20 Nate Kornell Ph.D., When Hunger Leads to Anger: Noticing External Influences on Mood, available at

https://www.psychologytoday.com/blog/everybody-is-stupid-except-you/201106/when-hunger-
leads-anger-noticing-external-influences-mood last visited on June 13, 2011
21 Robert Phillips, Elements of Sacrifice, Sermons, available at

https://soundfaith.com/sermons/88478-elements-of-sacrifice last visited 8 years ago

22 Allan Nawal, Frances Mangoseng, Jeoffrey Maitem, 13 Marines Killed in Action, 40 wounded in 14-

hour battle in Marawi, available at http://newsinfo.inquirer.net/904250/13-marines-killed-in-

action-40-wounded-in-14-hour-battle-in-marawi last visited June 10, 2017
 23Section 3, Article II of the Constitution. Civilian
authority is, at all times, supreme over the military. The
Armed Forces of the Philippines is the protector of the
people and the State. Its goal is to secure sovereignty of
the State and the integrity of the national territory.

We can relate these facts and provision in the case itself,

wherein Roger Whetmore first proposed that they might
find the nutriment without which survival was
impossible in the flesh of one of their own number. It was
also Whetmore who first proposed the use of some
method of casting lots, calling the attention of the
defendants to a pair of dice he happened to have with
him. He himself knew that with his proposal, the death of
one will be sacrificed in lieu of the four remaining
explorers. Additionally, he suggested such method where
other defendants were reluctant with such procedure
after their conversation by the wireless machine but
ended up agreeing with the same plan. Since they have all
agreed to it, they were all aware of the consequence of
their own action. Even though Roger withdrew on the last
minute, he strengthened the evidence of his willingness to
sacrifice his life when he made no objections at the time of
his turn in casting the dice. Thus, Roger Whetmore,
regardless of the result, concurred to the agreement, in a
fair and lawful way available to them.

V. Conclusion:

Based on the foregoing reasons presented on this paper,

we find it reasonable that the defendants of the case
should be acquitted and shall be free from any penalty
that the law may have provided for the crime of murder.
Ergo, we pray that the courts would immediately render
a verdict to the defendants being not guilty of the crime
charged and for their acquittal in the earliest possible
time.

23 Joaquin G. Bernas, S.J., The 1987 Constitution of the Philippines: A Comentary (2009 Edition) (pg. 64)