INTEROFFICE MEMORANDUM

TO : ATTY. ROLLY PEORO

FROM : CRISTINE JOY A. KWONG
SUBJECT : THE CASE OF THE SPELUNCEAN EXPLORERS
DATE : OCTOBER 16, 2019
________________________________________________________________

I. FACTS OF THE CASE

Five Speluncean explorers were trapped in a limestone cavern after a

landslide occurred. They waited several days for a rescue party, and during this
period of waiting, the task of rescuing the men proved to be extremely difficult,
resulting in the death of ten workmen who were killed while clearing the
entrance.

The explorers carried with them only scant provisions with them, and
there was no animal nor vegetable matter in the cave. Using the portable
wireless machine they had taken with them, they were informed on the 20th day
that it would take at least ten more days before said rescue team would arrive at
their location. They later asked if it would be possible for them to live without
food for an additional ten days, and were informed that there was little
possibility of this.

Whetman, one of the explorers, later proposed that they cast a dice to
determine who among them should be eaten. The other men agreed, but before
the dice were cast, Whetmore withdrew from the arrangement.

The men charged him with breach of faith and cast the dice anyway. The
dice were cast against Whetmore, and after he stated that he had no objection to
the fairness of the throw, he was put to death and eaten by his companions.
After the rescue of the defendants, they were indicted for the murder of Roger
Whetmore.

II. ISSUE

Whether or not the defendants should be charged as guilty for the murder
of Roger Whetmore

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III. DISCUSSION

Necessity is defined as “A justification defense for a person who acts in

an emergency that he or she did not create and who commits a harm that is less
severe than the harm that would have occurred but for the person's actions”1.

Applying this to the case, although there is no doubt that defendants and
Roger Whetmore deliberately entered into the caves, it could not have been
foreseen by the ordinary man that such an act would result in such dire situation.
The later killing of Roger Whetmore, as to be derived from the case, is but the
result of a ghastly game of chance determinative of the life or death of those
men.

Another applicable term is the “Lesser-evils defense”, which Black’s Law

defines as “the defense that, while the defendant may have caused the harm or
evil that would ordinarily constitute a criminal offense, in the present case the
defendant has not caused a net harm or evil because of justifying circumstances
and therefore should be exculpated”2.

Applying the above, the Revised Penal Code encompasses the two
concepts of “necessity” and the “lesser-evils defense”. Article 11 of the
Revised Penal Code provides the justification of actions of those that act
in self defense:
“Anyone who acts in defense of his person or rights, provided that
the following circumstance concur:
First. Unlawful aggression
Second. Reasonable necessity of the means employed to
prevent or repel it;
Third. Lack of sufficient provocation on the part of the
person defending himself.”3

IV. ARGUMENT

As earlier mentioned, necessity entails that presence of an emergency one

did not put himself into, and acts in a way that creates harm less severe than the
harm to be brought about by one’s inaction. It can be argued that yes, although
the defendants sacrificed and consumed the flesh of Roger Whetmore in order

1
Black’s Law Dictionary 8th ed. necessity.
2
Black’s Law Dictionary 8th ed. lesser-evils defense.
3
REVISED PENAL CODE, (2016), art. 11

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that the rest of them may have a chance at a “second life”, such argument is not
sufficient as to completely excuse them of such crime.

For one, “unlawful aggression” as contemplated under our penal laws

refers to assault or at least threatened assault of an immediate and imminent
kind4. In other words, there must be an actual physical assault upon a person, or
at the very least a threat to inflict real injury5.

Evidently, in this case there was no actual physical assault caused by

anyone, to anyone else. They were in a mere life or death situation, with only
the fear of hunger and passing time as the aggressor. As such, it cannot be said
that self-defense under the Revised Penal Code applies to this case.

As of late, there is no such Philippine law or jurisprudence that exculpates

an offender who commits murder, followed by cannibalism. However, foreign
jurisprudence could be used to further prove the unjustifiability, if ever, of
invoking “self-defense” or “avoidance of greater evil or injury” (one in a similar
case of cannibalism, the other in general self-preservation).

In the case of Her Majesty The Queen v. Tom Dudley and Edwin
Stephens6, the “murder” contemplated here is almost entirely similar to that of
the case at bar, wherein three men and a cabin boy were shipwrecked for many
days. The three men here also discussed the drawing lots, and although they did
not actually draw lots, defendants Dudley and Stephens later killed Parker and
the three men consumed his flesh. It was established that “necessity” cannot be
used a defense to the charge of murder.

In another similar case, it was held in United States v. Holmes7 that the
act of Alexander Holmes(and several other seamen) of forcing 12 men out of
the boat, in order to increase their chances of survival, was also not justifiable.

V. CONVICT OR ACQUIT

Based on the foregoing, I find it most proper to convict the defendants.

As earlier stated, there is no Philippine law or jurisprudence that condones the
killing and consumption of another man, even in extreme cases of famine and
necessity. As the facts of the case satisfies the elements of murder, punishable

4
People v. Crisostomo , 108 SCRA 288 (1981).
5
Luis Reyes, Tʜᴇ Rᴇᴠɪsᴇᴅ Pᴇɴᴀʟ Cᴏᴅᴇ 156 ( 2017).
6
The Queen v. Dudley and Stephens, 14 QBD 273 DC (1884).
7
United States v. Holmes, 26 Fed. Cas. 360 (1842).

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under our country’s laws, it is but necessary that defendants be prosecuted for
their crime.

VI. RECOMMENDATION/ CONCLUSION

Following the rationale behind Art. 5 of the Revised Penal Code, which
provides that “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​”8, it would be proper for the court to submit to the Chief
Executive its recommendation of executive clemency towards the unfortunate
explorers. In so doing, it could not be said that the judge enforcing such
decision would be guilty of gross ignorance of the law (as courts are not
allowed to decline to render judgement by reason of insufficiency of the laws),
and it would be true to the letter of the law.

The criminal justice system, although ever-fluid and ever-changing with

the progression of time, cannot be said to be free from error nor capable of
foreseeing every possible occurrence it aims to scrutinize. It is necessary to
admit that our laws may be flawed, yet, that does not mean we should allow
cruel and unusual circumstances such as this one to be adjudged as one where
defendants are to be charged as murderers for acting out of necessity in a
situation so unimaginable and inhumane.

Therefore, although the defendants must be convicted for murder, it

would be most proper for the Chief Executive to enforce its power of executive
clemency given that the strict enforcement of our penal laws would result in (or
at least in my opinion) a clearly excessive penalty, given that human reason
would lean towards self-preservation in such dire circumstances.

8
REVISED PENAL CODE, (2016), art. 5