Republic of the Philippines

REGIONAL TRIAL COURT

9th Judicial Region
Branch 17
Zamboanga City

PEOPLE OF THE PHILIPPINES,

Plaintiff,
Criminal Case No. 1234
-versus- For: Murder

JOHN DOE 1, JOHN DOE 2, JOHN DOE 3, JOHN DOE 4,

Defendants.

MEMORANDUM
The defendants, through the undersigned counsel and unto this Honorable Court,
most respectfully present and submit this Memorandum.

STATEMENT OF FACTS

The four defendants and Roger Pobre were amateurs interested in the exploration of
caves. Around May of 2012, they went inside a limestone cavern when a landslide suddenly
occurred. Heavy boulders fell and completely blocked the only known opening to the cave.
When they discovered that the detritus prevented them from leaving, such predicament
had only just begun to sink in. Upon their failure to return home, their respective families
were worried and notified the Secretary of the Society. A rescue team was subsequently
sent to the location of the cave but experienced difficulties in saving the trapped explorers.
The repeated increments of the men and the machines caused a sum of around eight
hundred thousand pesos. Ten workmen unfortunately died during the task. Such task of
rescue proved one of overwhelming difficulty.

Meanwhile, the explorers had carried only scant provisions of food. There was also
no animal or vegetable matter within the cave for subsistence. Anxiety was early felt that
they might die from starvation before they could be rescued. On their twentieth day inside
the cave, communication was established between the explorers and the rescue team
through a portable wireless machine. When the explorers asked them how long would it
take for them to be rescued, the engineers answered that it would take them at least ten
days. Because of anxiety that they might die from starvation, they asked the physicians
present whether they would be likely to survive without food for ten days longer, the
physicians told them that there was little possibility. After eight hours of silence, Pobre,
speaking his and the other defendants’ behalf, asked the physicians whether they would be
likely to survive for ten days longer if they consumed the flesh of one of their number. The
physicians, despite being reluctant, answered in the affirmative. Pobre asked whether it
would be advisable for them to cast lots to determine which of them would be sacrificed to
avoid the death of all from starvation, no one was willing to answer.

The defendants were at first reluctant but subsequently agreed on the plan proposed
by Pobre that they might find nutriment without which survival was impossible in the flesh
of one of their number. When they were about to cast the dice, Pobre all of a sudden wanted
to withdraw from their agreement. He was charged with a breach of faith. When the dice
were casted for him by one of the defendants, he was asked to declare any objections he
might have. He stated that he had no objections. The throw went against him and his life
was sacrificed for the others to survive.

On their thirty-second day, they were finally rescued. They were immediately
brought to the hospital and underwent a course of treatment for malnutrition and shock.
Later on, they were indicted for the murder of Roger Pobre.

STATEMENT OF ISSUES

I.
Whether the four accused were under the jurisdiction of natural law or positive law.

II.
Whether the four accused sacrificed and consumed the flesh of Roger Pobre due to the
necessity for self-preservation.

III.
Whether the four accused should be held criminally liable for the charge of murder against
Roger Pobre.

ARGUMENTS

I.
The four defendants were under the jurisdiction of natural law and not of positive
law. In emergencies where the person or life of another is imperiled, human nature does not
act upon formal reasoning but in obedience to the instinct of self-preservation.1 The laws of
society do not anymore govern the man in times of such crises. This is where the human

1
People vs. Ramirez, G.R. No. 80747, October 17, 1991
reverts to natural law which is a rule of conduct arising out of the natural relations of
human beings.2 The laws of nature allowed the sacrifice one person for the survival of the
rest because self-preservation is the first law of nature.

A fact so familiar to us stipulates that our law is all based from the natural laws and
it is the foundation of our government where one of the primary purposes of our
government is to protect our natural rights to live and self-preservation. Hence, in the
absence of applicable solution from a positive law, state of nature becomes possible. Our
positive and natural rights both permit us the right to acquire necessities such as food for
survival. However, in this case, satisfying this need is not possible through positive law and
these people when they decided to agree upon themselves that one must be killed and eaten
and let the rest survive were in a state of nature.

For the same reason, we must take consideration of the situation of these unlucky
men wherein it was necessary to charter to a new form of government applicable to their
situation. Such as lawmakers would continuously amend or enact laws to adapt to the
status quo, it is of little to no difference that the men would need to come to an agreement
that would suit their condition. No reasonable men, in ordinary situation, would come to an
agreement of eating their dear friend to satisfy their hunger.

To penalize the defendants who found their selves in a situation where allowing
themselves to be governed by the formal laws of society that would cause the eventual
death of the entire group is the same as depriving their right to self-preservation. It is on
this light that we have to revert back to the first law of nature: self-preservation. Where
they found a rule applicable to their situation in order to survive, these men clearly did not
intend to kill one of their colleagues but the intent was to survive. For these people, their
greatest law is that agreement and that it should never be breached. They understood that
the sacrifice of one is necessary so to remove any chance of prejudice or bias, they left who
would be sacrificed to chance.

In one case, the Supreme Court set the limit on how far anyone can go to sacrifice
life. The limit is extreme necessity. If in situations of such extreme necessity, killing or
sacrificing life is justified if it means self-preservation of another.3 Necessity is not a charge
for murder. The actions of the men were both of extreme and inevitable necessity4. The
Court should find the men acquitted of all criminal charges because they did not violate any
laws of nature and instead, they followed to the first law of nature, which is self-

2
Black’s Law Dictionary
3
People vs. Mamasalaya, G.R. No. L-4911, February 10, 1953
4
R vs. Dudley and Stephens, 14 QBD 273 DC, 1884
preservation. If conviction would prevail then it is as if the law eliminates the very essence
of what makes us human, which is to live.

II.
The four defendants sacrificed and consumed the flesh of Roger Pobre for the
necessity of self-preservation. The five explorers were faced with a predicament of life or
death when they were trapped inside a limestone cavern carrying only scant provisions of
food not enough for all of them to consume for a long period of time and there was also no
other means of subsistence that could be found within the cave. There was anxiety on the
part of the explorers since there was no guarantee on when they could get out of the cave,
and even if there was, there was also no assurance that everyone could make it out of the
cave alive by that time. There was fear of dying from starvation, and such fear presupposes
an impulse of self-preservation born to man and part of his nature as a human being.

It should be borne in mind that in emergencies of this kind, human nature does not
act upon the processes of formal reason but in obedience to the instinct of self-preservation;
and when it is apparent that a person has reasonably acted upon this instinct, it is the duty
of the courts to hold the actor irresponsible in law for the consequences of such act done out
of necessity.5 Equally relevant is the time-honored principle: Necessitas non habet legem.
Necessity knows no law. It is within every human being that desperate attempt to do
absolutely anything, even if it were illegal or immoral, to save his own life in preference to
that of another, where the life of one must be sacrificed. The instinct of self-preservation
will always make one feel that his own safety is of greater importance than that of
another.6 It should likewise be considered that such instinct of self-preservation is born to
the defendants and part of their nature as mere human beings fearing death by starvation.

The fact that the physicians informed the explorers on their twentieth day of being
trapped inside the cave that there was little possibility of surviving without food for ten
days longer presupposes that even the physicians knew how serious their situation was and
how likely they would starve to death. Even if they said “little possibility” instead of “no
possibility at all,” we still cannot risk the lives of these unfortunate men just because there
was still possibility of surviving without consuming the flesh of another despite it being
little. We can put the lives of five men in jeopardy just because there was still “possibility”
even though little; it cannot be enough for us to wager their lives on a likelihood that low.
When also asked whether they would survive for ten days longer if they consumed the flesh
of one of their number, the physicians were reluctant but still answered in the affirmative.
Such affirmation gave the explorers the hope of possibly surviving despite the dreadful

5
People vs. Lara, 48 Phil. 153 (1925)
6
Reyes, The Revised Penal Code Book I, 19th Edition (2017), p. 210
situation that they were in, and these men who were desperate enough to make it out alive
and come home to their families would linger and cling on to that hope. They succumbed to
that expedient, regardless of how frightful and odious it was, of consuming the flesh of one
of their number to find the nutriment without which survival was impossible to survive in
any means possible. They were in such a situation to yield to any possible means of staying
alive in a life or death situation because their minds are so fixed at the idea of surviving
even it if means giving one’s own life greater importance than that of another.

Although it is true that Pobre, like the four defendants, had that instinct of self-
preservation and could have also felt the need of protecting his own life over the life of
others, there was still a necessity for one of them to abandon that instinct of self-
preservation in order for the others to survive because such abandonment will give way to
the sustenance of others. The expedient and means were proposed by Pobre himself.
Naturally, the four defendants would cling on to this agreement for the intense desire to
survive. Sacrificing the life of Pobre in order to save the life of the four defendants, instead
of saving none at all, should justify their act of consuming his flesh. The necessity doctrine,
as stated by Ashworth (1975), “represents a concession to human weakness in cases of
extreme pressure, where the accused breaks the law rather than submitting to the
probability of greater harm if he does not break the law.”7

Article 11 of the Revised Penal Code states the justifying circumstance where a a
person may commit an act damaging to another in order to avoid a greater evil or injury8. It
was stated in the facts that the defendants were initially informed that they would starve
to death without food before they could be rescued. This was already confirmed by the
medical experts, when Pobre suggested resorting to cannibalism if that could mean they
could survive ten days longer. Given that they had already run out of food resources, the
defendants could not even comprehend how they would survive unless they resorted to such
an act. In the Journal of Criminal Law and Criminology9, it is stated that “….It is unjust to
penalize someone for violating the law when the action produces a greater good or averts a
greater evil. Had the unlawful action not taken place, society would have endured a greater
evil than that which resulted from violating the law. Therefore, under the necessity
doctrine, those who violate the law in certain circumstances are justified in doing so.” First,
there was an actual evil that sought to be avoided. They were afraid that they would starve
themselves to death, with no access to clean water, or food source, and that remains to be
an evil they sought to avoid. The defendants were relying on the physical need of
committing cannibalism, as a means of surviving longer. Second, the injury feared to be
greater than done to avoid it. The fear of starving to death within the cave is still applicable

7
A.J. Ashworth, Reason, Logic and Criminal Liability, 91 L. Q. REV. 102, 106 (1975)
8
Para 4, Article 11 Revised Penal Code
9
Edward B. Arnolds, Norman F. Garland, The Defense of Necessity in Criminal Law: The Right to Choose the Lesser
Evil, 65 J. Crim. L. & Criminology 289 (1974)
here and the idea that they would never have the chance to be found by the search and
rescue team. Third, there is no other practical and less harmful means of preventing it.
Again, it was clearly mentioned that the defendants had already run out of food resources
and there were no other viable means of nourishment in the cave.

III.
The four defendants should not be held criminally liable for the charge of murder
against Roger Pobre. Murder is the most serious of all crimes because it extinguishes the
life of an individual and under normal circumstances that should never be the case but in
the case at bar, we must acknowledge that there was an extraordinary and bizarre turn of
events and even more so with what and how things transpired. Murder presupposes two
important elements: a criminal act and a criminal mind. Actus non facit reum, nisi mins sit
rea. A crime cannot be committed if the mind of the one performing the act is innocent and
without any criminal intent; that is, bereft of mens rea, which is defined as a guilty mind, a
guilty or wrongful purpose or criminal intent.10 Applying this doctrine to the case at bar,
there was indeed no such criminal mind or wrongful purpose on the part of the four
defendants to deliberately kill Roger Pobre for the sake of just killing him. His life was
sacrificed to provide sustenance to these four unfortunate men who are on the verge of
dying from starvation. Murder requires the specific intent to kill arising from malice or
deceit which is lacking on the part of the four defendants when they were in a state of
necessity acting merely, not on a malicious intent, but on the intent of self-preservation
that is born to every man and in his nature as mere human beings.

It is the burden of prosecution to prove beyond reasonable doubt that murder has
indeed taken its course together with the criminal mind of killing Roger Pobre. However,
the cases scream doubt and ambiguity in every inch of its totality. The totality of the claim
of murder is found wanting. Assuming but no conceding that there lies a criminal act of
killing Roger Pobre, the paramount question in this case is the intent of the accused to kill
and such question demands to be answered. Intent plays a paramount role in establishing
whether the accused did in fact commit the crime of murder, because without such intent,
there is no crime of murder. It is clear that the intent of the group, as a collective body even
Pobre included, was not to do harm or kill someone with malicious intent, but the intent to
survive arising from necessity and self-preservation where the anxiety that arose from the
dire situation only to be worsened by Pobre’s proposal that led to their state of mind being
confined to the situation because of their sense of urgency, anxiety and emergency. Intent
was never even present. Instilling in the minds of the explorers a horrendous means to
preserve the lives of the majority therefore it was Pobre who instigated the plan but bore
the consequences of his and the group’s actions. In the evaluation of the elements to commit

10
People vs. Jose Moreno, G.R. No. 126921, August 28, 1998
an intentional felony, intent to kill was found lacking and the claim of murder was found
wanting.

It would be a great shame and even an embarrassment if our law cannot clear
inconsistency with the application of the law and the law itself. This is an insult to the
spirit of the law and an injury to humanity. The responsibility now lies on what we as a
people, the government and the law makes out of the unforeseen events of this case. The
life that was taken was wrong but nonetheless, was justified in this circumstance. It was
never the obligation of the framers to foresee that cases like this would arise and to contain
them in the letter that they produce which was to prevent criminal propensity is offensive
to our predecessors, to us as a people and to those who succeed us. Cessante ratione legis,
cessat lex ipsa. When the reason for the law ceases, the law itself ceases. It is not the letter
that kills but the spirit that breathes life. In the penal system of the Philippines, every
person accused of a crime shall be presumed innocence until proven guilty beyond
reasonable doubt. Where there is no such guilt beyond reasonable doubt based on moral
certainty that the crime of murder was committed, the defendants should be acquitted and
the case should be dismissed. Where there is doubt on the moral certainty of the accused
committing the crime, it is only right that such law should be liberally construed in favour
of the four defendants and strictly construed against the State because the presumption of
innocence will always prevail when the prosecution fails to prove the guilt of the accused
beyond reasonable doubt.

CONCLUSION

These five amateur explorers met a fate so unfortunate that out of necessity, they
had to resort to the act of sacrificing Pobre and consuming his flesh for their survival. They
were under the jurisdiction of natural law, upon which our positive laws are based on. The
impulse of self-preservation is inherent among us and should likewise be considered in this
unfortunate situation. There was no intent to kill Pobre, but merely intent to survive as
much as possible, even if it means sacrificing the life of one to save the life of four people,
rather than none at all.

The four defendants were under ill-fated circumstances and were left with no other
choice, but this Court has a choice; a choice to set them free; a choice not to remind them of
the trauma they have experienced; a choice not to confine these unfortunate men behind
metal bars. These individuals are only victims of such circumstance which they had no
control over, even when they themselves had sacrificed Pobre and consumed his flesh; they
acted under the uncontrollable influence of thirst, hunger, fatigue and subsequent
hopelessness. They struggled at their lowest, grappling between what was right with their
conscience and what was necessary for their survival in the cave. In succumbing to such a
deleterious state of thoughts and emotions, how can the Court choose to punish the
defendants for an act that can be nothing else but human. They had no such intent to kill
Pobre, nor even harm him if it did not restrict their means to survival. But at the end of the
day, the defendants are not persons incapable of experiencing crippling fear and panic as
they are mere human beings whose instinct will tell them to survive using all means,
despite being illegal, not just for their own but for their families who are waiting for them
to make it out alive as well.

PRAYER

WHEREFORE, premises considered, the accused respectfully pray to this Honorable

Court that judgment be rendered in their favor.

Counsel for Defense

INDEX OF AUTHORITIES

1. Black’s Law Dictionary 2011 Edition

2. The Revised Penal Code of the Philippines
3. R vs. Dudley and Stephens, 14 QBD 273 DC, 1884
4. People vs. Lara, 48 Phil. 153 (1925)
5. People vs. Jose Moreno, G.R. No. 126921, August 28, 1998
6. People vs. Ramirez, G.R. No. 80747, October 17, 1991
7. Luis B. Reyes, The Revised Penal Code Book I, 19th Edition (2017)
8. A.J. Ashworth, Reason, Logic and Criminal Liability, 91 L. Q. REV. 102, 106 (1975)
9. Edward B. Arnolds, Norman F. Garland, The Defense of Necessity in Criminal Law:
The Right to Choose the Lesser Evil, 65 J. Crim. L. & Criminology 289 (1974)