MEMORANDUM

To: Atty. Rolly Francis C. Peoro

From: Modine Alec P. Azares (11980788)

Re: The Case of the Philippine Speleological Society

Date: October 16, 2019

STATEMENT OF ASSIGNMENT

This legal memorandum was made in pursuant to the case of the Philippine
Speleological Society regarding the case of murder and imposition of the penalty of
reclusion perpetua issued August 22, 2019

STATEMENT OF FACTS

Five members of the Philippine Speleological Society, an organization interested

in the exploration of caves together with Andres Concepcion, who is also a member of
the Society penetrated into the interior of the Hinagdanan Cave located in Panglao Island,
Bohol, early in August of 2019. While they were in a position remote from the entrance to
the cave, a landslide occurred. 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. Also, a number of
landslides happened which resulted to the difficulty for the success of the rescue. On the
50th day of their imprisonment, the trapped men made connection with the rescuers
through their walkie-talkie. They were told by the engineers that it would take at least
more days 10 days to rescue them provided that no further landslides were to occur. The
physicians also told the trapped men that their chances of surviving without food for the
next ten days is deemed impossible. Concepcion, 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. From the testimony of the defendants it was
Concepcion who first proposed the use of some method of casting lots, calling the
1
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 Concepcion. 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 but Andres Concepcion, who
proposed the idea of the sacrifice and the casting of lots, wanted to desist at the last
minute. He was charged with a breach of faith and the casting of dice proceeded. After
two hours, Andres finally joined the group and commenced the start of rolling the dice.
When it was Andres Concepcion’s turn, the dice were cast by one of the defendants for
him. He was asked if he had any objections on the fairness of the throw but he stated
none and the throw unfortunately went against him. As agreed, he was killed and eaten
for the survival of the other four. After the men were rescued on the 60th day, they were
put in a hospital to undergo a course of treatment for the malnutrition and shock they
suffered. They were then indicted for the murder of Andres Concepcion under the law of
the Government of the Philippines. The defendants were imposed a sentence of death
by reclusion perpetua as it was the only course open to them under the law, regardless
of how extraordinary the case may be.

ISSUES PRESENTED

1. Are the defendants guilty of the crime of murder?

2. Did the defendants act wilfully in killing Andres Concepcion to necessity in
preserving their own lives?

BRIEF ANSWERS

1. (Law) They are guilty of the crime of murder (According to Article 248 of the
Revised Penal Code and The opinion of Chief Justice Truepenny in The Case of
the Speluncean Explorers.
2. (Morals) No, because the act of killing Andres Concepcion was not done wilfully
with evil intent.

2
DISCUSSION

Murder in the Philippines

Article 248 of the Revised Penal Code1 states:

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.

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 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.

The requisites of murder are the following2

1. That a person was killed

2. That the accused killed him without any justifying circumstance
3. That the killing was attended by any of the qualifying circumstances mention in
Article 24

3
1 Rev. Pen. Code, art. 248
2 Reyes, Book Two, supra at 517
 4. That the killing is not parricide or infanticide

Based upon the facts mentioned in the case, it was clear that the defendants killed Andres
Concepcion, as the dice were casted among him. It was also not a case of parricide and
infanticide and was attended by evident premeditation.

Elements of Evident Premeditation (Article 14, paragraph 13 of the Revised Penal Code)3:

1. The time when the offender determined to commit the crime;

2. An act manifestly indicating that the culprit has clung to his determination; and
3. A sufficient lapse of time between the determination and execution, to allow him to
reflect upon the consequences of his act and to allow his conscience to overcome
the resolution of the will.

In the case at bar, two hours is a sufficient lapse of time to allow the defendants, including
Andres Concepcion to reflect upon the consequences of his act.

Existence of uncontrollable fear

From the facts stated above, the act of killing Andres Concepcion can be
concluded as the defendants wilfully and without a doubt killed him. This can be seen
from the stages of planning, dice-rolling, and of executing the act. Even from the first act
of Andres Concepcion in asking a series of experts if they should eat one of their members
in able to survive, that already shows the intention of killing and eating one of the people
trapped inside the cave. However, in considering an act to be wilful, the defendants must
have acted with freedom and reason. They must have done the act freely without any
force, threat or any undue force to influence in making their decision or action. According
to Black’s Law Dictionary4, the term wilful means, “Voluntary and intentional, but not
necessarily malicious.”. Thus in acting wilfully, they must have acted voluntarily and
intentional with evil intent in killing the person. However, in the case at bar, it was
concluded that the defendants only killed Andres Concepcion due to the necessity to
survive, thus, an absence of evil intent on their part. They were already at the point of
starvation, without necessary food and nutrients to sustain themselves while they are in
4
3 Reyes, Book One, supra at 402.
4 Black’s Law Dictionary (8th ed. 2004),p. 4938
the process of waiting for rescue. They were forced to kill any person inside the cave for
them to be able to survive, and it was beyond circumstance that when the dice were
rolled, Andres Concepcion is the designated person to die and to be eaten by the
defendants. Thus it was an influence that forced the defendants to kill and eat a person.

Thus, in connection to the discussion, Article 12, Paragraph 6 of the Revised Penal Code5
affects the situation of the defendants:

“Article 12. Circumstances which exempt from criminal liability. - the following are
exempt from criminal liability:

6. Any person who acts under the impulse of an uncontrollable fear of an equal or
greater injury.”

According to the Revised Penal Code by Luis B. Reyes, to appreciate duress as a valid
defense, a threat of future injury is not enough. It must be clearly shown that the
compulsion must be of such character as to leave no opportunity for the accused to
escape.(6)(7) And in the case at bar, there was no other choice. For the other men to live,
they should be able to murder one of their comrades so they can eat to be able sustain
their life while waiting for rescue.

CONCLUSION AND RECOMMENDATION

The defendants are guilty beyond reasonable doubt of the crime of murder under Article
248 of the Revised Penal Code. The killing of Andres Concepcion was due to the fact that
they would die of starvation if they would not kill one of their members.

In case of the opinion of Chief Justice Truepenny in the case of the Speluncean
Explorers6, he voted in affirmation of the convictions but also recommends clemency. The
Chief Justice states that the statute is unambiguous, with no applicable legal defences,
so it must be applied by the court and that mercy is the decision the executive branch has
to make, rather than the judiciary. In this case, the Philippines exercise the doctrine of

5
5 Rev. Pen. Code, art. 12
6 Reyes, Book One, supra at 248
7 People V. Palencia, No. L-38957, April 30, 1976, 71 SCRA 679, 690;
8 C.J. Truepenny, The Case of the Speluncean Explorers by Lon Fuller
Separation of Powers, and that the matter of clemency that should be given to the
defendants should be in the matter of the executive department to decide.

6
7