MEMORANDUM

FOR: Atty. Rolly Francis C. Peoro

FROM: Shandrei Allen E. Guevarra
DATE: October 16, 2019
Re: The Case of the Speluncean Explorers

I. RELEVANT FACTS1

The defendants in the case at bar are members of the Speluncean Society, an organization
engaged in the exploration of caves. On May 15, 2019, said defendants, along with Roger
Whetmore (“explorers”), who was also a member of the organization, entered the Odloman Cave
in Mabinay, Negros Oriental. As they went further into the cave, a landslide occurred, which led
to large boulders blocking the entrance completely. The Secretary of the Speluncean Society,
having been informed that the explorers have still not returned to their homes, prompted a team
for their immediate rescue from the cave.

Saving the lives of the explorers was not an expedient and inexpensive endeavor. A
number of people from different fields of expertise formed the rescue team. Machines were also
amassed and operated in order to successfully remove the boulders which obstructed the cave’s
opening. A prodigious sum of 800,000 pesos, exhausted from the treasury of the Speluncean
Society, was used in order to make the rescue possible. Furthermore, in the course of the rescue,
10 men died because of the incredible difficulty of clearing the entrance of the cave.

On the 20th day of their despairing confinement in the cavern, it was discovered that the
explorers brought with them a portable wireless machine. They then used this to communicate
with the members of the rescue team. They were told that it would take 10 more days before they
could be freed from their miserable situation. Having received this information, the explorers
sought the medical opinion of a physician in the rescue team. The explorers were then informed
about the unlikelihood of their survival, given the palpably limited supply of food and water they
had left.

After several hours, the explorers reconnected with the rescue team. Speaking with the
chairman of the physicians’ committee, they asked him if they had a better chance of survival if
they resorted to eating the flesh of one of them. With doubt and reluctance, the chairman
answered in the affirmative. Upon further inquiry by the explorers as to this plan, no member of
the rescue team was willing to provide them with any more answers or advice.

After 32 long and grueling days, the defendants were finally rescued and liberated from
their ordeal. It was later ascertained that on their 23rd day inside the cavern, the defendants killed
and ate the flesh of Whetmore. Because of his death, the defendants were charged with the crime
of murder.

1
Lon L. Fuller, The Case of the Speluncean Explorers, 62 HARVARD LAW REVIEW (February, 1949).

1
 Based on the testimony of the defendants during trial, it was established that Whetmore
was actually the first person to consider and propose the idea of finding sustenance in the flesh of
one of them. He was also the one to suggest the use of the dice, which he had in his possession,
as a way to determine who among them would be chosen. Initially, there was hesitation on the
part of the defendants, but ultimately, they came to an agreement to pursue such plan.

However, before the dice was rolled, Whetmore appeared to have suddenly withdrawn
his consent from the agreement. In spite of this, the defendants still continued the plan, as they
contended that Whetmore violated the fidelity of the arrangement they all concurred in.
Eventually, Whetmore no longer objected, and in the end, the roll of the dice went against him.
The inhumane acts of the defendants against Whetmore then ensued.

The Regional Trial Court of Makati City, Branch 20 rendered a decision, finding that the
defendants are guilty beyond reasonable for the crime of murder under Article 248 of the
Revised Penal Code. They were sentenced to suffer the penalty of reclusion perpetua in its
maximum period.

II. ISSUE

The case at bar presents the sole issue of whether or not the defendants are guilty
beyond reasonable doubt for the crime of murder under Article 248 of the Revised Penal
Code, for killing Roger Whetmore and eating his flesh.

III. APPLICABLE LEGAL PROVISIONS

Article 248 of the Revised Penal Code provides that:

“Article 248. Murder. — Any person who, not falling within

the provisions of Article 246, shall kill another, shall be
guilty of murder and shall be punished by reclusion temporal
in its maximum period to death, if committed with any of the
following attendant circumstances:

(1) With treachery, taking advantage of superior strength,

with the aid of armed men, or employing means to weaken
the defense or of means or persons to insure or afford
impunity.

(2) In consideration of a price, reward or promise.

(3) By means of inundation, fire, poison, explosion,

shipwreck, stranding of a vessel, derailment or assault upon a
street car or locomotive, fall of an airship, by means of motor
vehicles, or with the use of any other means involving great
waste and ruin.

2
 (4) On occasion of any of the calamities enumerated in the
preceding paragraph, or of an earthquake, eruption of a
volcano, destructive cyclone, epidemic, or any other public
calamity.

(5) With evident premeditation.

(6) With cruelty, by deliberately and inhumanly augmenting

the suffering of the victim, or outraging or scoffing at his
person or corpse.”2

Article 11, Paragraph 4 of the Revised Penal Code provides that:

“Article 11. Justifying Circumstances. — The following do

not incur any criminal liability:

xxx

(4) 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 be greater than that done to

avoid it;

Third. That there be no other practical and less harmful

means of preventing it.

x x x”3

Article 13, Paragraph 1 of the Revised Penal Code provides that:

“Article 13. Mitigating Circumstances. — The following are

mitigating circumstances:

(1) Those mentioned in the preceding chapter, when all the

requisites necessary to justify the act or to exempt from
criminal liability in the respective cases are not attendant.

x x x”4

2
REV. PEN. CODE, art. 248.
3
REV. PEN. CODE, art. 11.
4
REV. PEN. CODE, art. 13.

3
III. APPLICABLE JURISPRUDENCE

In People v. Rebutado5, when an accused performs an unlawful act because of a “state of

necessity,” such act shall be recognized as a justifying circumstance by virtue of Article 11,
Paragraph 4 of the Revised Penal Code. The reason underlying this pronouncement is the fact
that the will of the accused does not concur with his act. However, in order for a state of
necessity to be invoked as a justifying circumstance, there must be no intentional provocation
that would bring about such state on the part of the accused.

In the same case, it was also emphasized that the existence of a state of necessity is a
question of fact.6 The resolution of such question depends on the particular circumstances
surrounding the case.

On the other hand, the English case of Regina v. Dudley and Stephens7 established a
precedent in the realm of common law, stating that a state of necessity is not a sufficient ground
to warrant an acquittal for the crime of murder:

“A man who, in order to escape death from hunger, kills

another [to eat] his flesh, is guilty of murder; although at the
time of the act he is in such circumstances that he believes
and has reasonable ground for believing that it affords the
only chance of preserving his life.”

IV. DISCUSSION

Yes, the defendants are guilty beyond reasonable doubt for the crime of murder
under Article 248 of the Revised Penal Code. However, the mitigating circumstance of
incomplete justifying circumstance shall be applicable to them, pursuant to Article 13,
Paragraph 1 of the Revised Penal Code.

The Commission of the Crime of Murder

The chief act involved in this case is cannibalism. In the Philippines, such an act is of an
exceptionally rare character. At present, no legal provision or decided case can be squarely
applied to delve into this subject matter. In view of this, it is important to establish that the court
decisions of England possess a certain degree of persuasiveness in our jurisdiction.8 Therefore, in
the absence of any fitting legal or jurisprudential basis in the Philippines’ legal system, the
landmark decision of Regina v. Dudley and Stephens proves to have a considerable influence.

Following its ruling, it can then be concluded that the act of the defendants in killing
Whetmore, and then proceeding to consume his flesh, is constitutive of the crime of murder.

5
People v. Rebutado, 254 PHIL 262 (1988).
6
People v. Rebutado, 254 PHIL 262 (1988).
7
Regina v. Dudley and Stephens, 14 QBD 273 DC (1884).
8
Milagros Santos-Ong, Philippine Legal Research, https://www.nyulawglobal.org/globalex/Philippines1.html
(2015).

4
Thus, applying the pertinent legal provision in our jurisdiction, the defendants are punishable
under Article 248 of the Revised Penal Code.

The Absence of the Justifying Circumstance of Avoidance of a Greater Evil or Injury

The commission of a crime for the purpose of avoiding a greater evil or injury is one of
the justifying circumstances provided by law. In People v. Olarbe9, it was reiterated that when an
accused invokes any of the circumstances enumerated under Article 11 of the Revised Penal
Code, the burden is imposed upon him to prove with clear and convincing evidence that his
unlawful act is justified, which then exonerates him of criminal liability.

The justifying circumstance of avoidance of a greater evil or injury, in which the

requisites are enumerated under Article 11, Paragraph 4 of the Revised Penal Code, is not
attendant in the case at bar.

It cannot be denied that the first requisite – that the evil sought to be avoided actually
exists – is present. Death was impending for the explorers. At the time they determined that
Whetmore was the one to be killed, their imprisonment in the cave had already lasted for more
than three weeks. Thus, it is reasonable to assume that severe panic had already overwhelmed the
explorers, as their supply of food and water was steadily depleting. Although the rescue team had
not wavered in their strenuous efforts, this does not make any less grave the fact that death by
starvation was looming for the explorers. Furthermore, knowing that they would have to suffer in
the cave for at least 10 more days only aggravated their already desolate situation.

The second requisite – that the injury feared be greater than that done to avoid it – is also
present. By virtue of the instinct of self-preservation, an individual will always recognize his
very own safety as most valuable and most important.10 It is rational for one to be convinced that
his own survival shall be paramount and his best interest shall trump those of others, especially
when faced with the most dire and extreme circumstances. In the case at bar, it is shown that the
explorers concurred in a particular method that would allow them to decide who among them
shall be killed. Notwithstanding Whetmore’s initial desire to abandon the plan, he ultimately
acceded to whatever the result of the dice’s roll would be. Thus, when the result was not in his
favor, the defendants remained steadfast in carrying out what was agreed upon. By taking
Whetmore’s life and using his body as their source of nutriment, the other explorers greatly
augmented their chances for survival. The injury feared – the loss of the lives of all of the
explorers – can be said to be greater than what was done to avoid it – the loss of the life of only
one of them. It may be dangerous to conclude that saving the lives of many outweighs saving the
life of one. However, what is ultimately raised here is the value of life. Thus, regardless of the
number of people saved and the number of people who died, this case pits life against life.
Therefore, the second requisite of the justifying circumstance is deemed present.

However, the third requisite – that there be no other practical and less harmful means of
preventing it – is not present. The heinous act of cannibalism may have been the only means for
the explorers to sustain themselves inside the cave. It may also be said that their entrapment,

9
People v. Olarbe, G.R. No. 227421 (2018).
10
LUIS B. REYES, THE REVISED PENAL CODE CRIMINAL LAW BOOK ONE 210 (19th ed., 2017).

5
along with their hunger and thirst, have caused a deleterious impact on their emotional and
mental states. Despite these arguments, choosing only one person and killing him is not the most
practical and not the least harmful means they could have resorted to. Although the explorers had
to endure 10 more days of imprisonment inside the cave, it is possible that they could have
sustained themselves by feeding off of a certain part of the body only. They could have
considered cutting only one leg or one arm, and using its flesh as their food. If that turned out to
be insufficient, they could have chosen another person, cut his leg or arm, and then consumed it.
By doing so, serious injuries may have been sustained, but no life would have been lost. The
moment they were rescued from the cave, immediate and efficient medical attention could have
been given to those who suffered physical injuries. At least one person may have lost a part of
his body, but it can be reasonably said that such an impairment is far better than death itself.

Based on the foregoing, not all of the essential requisites under Article 11, Paragraph 4 of
the Revised Penal Code are present. Thus, the justifying circumstance of avoidance of greater
evil or injury cannot be considered in favor of the defendants. Although what the explorers
experienced can be characterized as damningly agonizing, such “state of necessity” is still not
compelling enough as to fall under what is contemplated by People v. Rebutado. Therefore, the
defendants’ acts of killing Whetmore and eating his flesh are not justified under the law.

The Applicability of the Mitigating Circumstance of Incomplete Justifying Circumstance

Article 13, Paragraph 1 of the Revised Penal Code states that a mitigating circumstance
may be granted to a person convicted of a crime when it is shown that some of the requisites for
the justifying circumstances under Article 11 and the exempting circumstances under Article 12
are not present.

In the case at bar, the defendants are entitled to the mitigating circumstance of incomplete
justifying circumstance under Article 11, Paragraph 4 of the Revised Penal Code. As already
discussed, only the third requisite for the justifying circumstance of avoidance of a greater evil or
injury is absent. However, since the first and second requisites are present, there is still a
privileged mitigating circumstance that must be considered in favor of the defendants.11
Therefore, this must be taken into account in modifying the sentence they shall serve.

V. CONCLUSION AND RECOMMENDATION

The defendants are guilty beyond reasonable doubt for the crime of murder under Article
248 of the Revised Penal Code. Given the extraordinary circumstances surrounding this case, our
jurisdiction has yet to directly resolve a matter like this through specifically appropriate
provisions under the law or pronouncements rendered by any of the courts of the land. Thus, it is
necessary to find reliance on the established doctrines of international tribunals, as these have
persuasive effect on our jurisdiction. They may be adopted in order for us to arrive at sound and
fair decisions, especially when what would be affected is the liberty of persons.

Having said so, there are clearly gaps in our laws. As abberant as the act of cannibalism
is, its occurrence is not an absolute impossibility, as demonstrated by the case of the Speluncean
11
LUIS B. REYES, THE REVISED PENAL CODE CRIMINAL LAW BOOK ONE 266 (19TH ED., 1963).

6
explorers. Therefore, I am of the earnest belief that the Congress of the Philippines should be
urged to legislate on this atrocious act. It is high time that our jurisdiction recognizes the
unconventionality of events that are transpiring and will transpire in our society, especially when
such events appear to be criminal in nature. Proper legislative action should be taken in order to
address these kinds of novel matters, and ultimately, to strengthen the very purpose of our justice
system.

In Corpuz v. People12, the Supreme Court expressed its inability to satisfy the Legislative
Branch’s failure to realize that the range of penalties we were adopting until several years ago no
longer translated to justice and fairness. In that particular case, whatever decision was rendered
by the highest court of the land cannot be understood as giving a categorical solution for the
shortcomings of the legislature. Such would undeniably constitute judicial legislation, which in
turn, would be a patent violation of the well-established principle of separation of powers.

Thus, in formulating a recommendation, the Supreme Court invoked the duty and power
endowed upon it Article 5 of the Revised Penal Code13, which provides that:

Article 5. Duty of the Court in Connection with Acts Which

Should Be Repressed but Which are Not Covered by the Law,
and in Cases of Excessive Penalties. — Whenever a court has
knowledge of any act which it may deem proper to repress
and which is not punishable by law, it shall render the proper
decision, and shall report to the Chief Executive, through the
Department of Justice, the reasons which induce the court to
believe that said act should be made the subject of penal
legislation.

In the same way the court shall submit to the Chief

Executive, through the Department of Justice, such statement
as may be deemed proper, without suspending the execution
of the sentence, when a strict enforcement of the provisions
of this Code would result in the imposition of a clearly
excessive penalty, taking into consideration the degree of
malice and the injury caused by the offense.

By virtue of this provision, the Supreme Court is explicitly given a task and a remedy: to
render the proper decision and to report to the President of the Philippines the various reasons
why it is convinced that a particular act – which in this case is cannibalism – should be
recognized as an unlawful act, and thus, punishable under our laws. By doing so, the Supreme
Court will be able to inform the President, and more importantly, urge Congress to perform its
crucial mandate to fill in some of the gaps that pervade our laws today.

With regard to the sentence that the defendants shall serve, it must be reiterated that they
are entitled to privileged mitigating circumstance, pursuant to Article 13, Paragraph 1 of the

12
Corpuz v. People, 734 PHIL 353 (2014).
13
REV. PEN. CODE, art. 5.

7
Revised Penal Code. Therefore, the penalty to be imposed upon them must be changed from
reclusion perpetua in its maximum period, to reclusion perpetua in its minimum period.

I hope that I have successfully established my position in the case of the Speluncean
explorers and have adequately explained other pertinent details regarding the issue. Should you
have any further questions or concerns, please let me know. Thank you very much.

Yours Faithfully,

Shandrei Allen E. Guevarra

Block G03
11980338