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Republic of the Philippines

REGIONAL TRIAL COURT


Zamboanga City
Branch 15

Cyrus Mark R. Avelino, Kelvin Jaluag Culajara,


Josephine Anne B. Ferrer, Jerich Bryan Y. Horrilleno,
Al-Zhindi O. Talipan, Al-Jazzer M.A. Usad
Prosecutors

-Versus- Criminal Case: Murder

Shahiva Tazhnim S. Jadraque, Crissa Jean M. Morales,


Cherie Fe Banayan, Omelkhair E. Ismael, Khadija-Meriam H. Tahil
Defense Counsels
xx -------------------------------------------------------------------------------- xx

SUMMARY OF THE CASE/ NATURE OF THE CHARGE

The four defendants in this case have been charged of murder before the Regional
Trial Court of Zamboanga City for killing and consuming the remains of Roger Pobre after
they have been trapped in a limestone cavern found in the East Coast of Zamboanga City.
Said defendants argued that their acts were impelled by a great necessity for survival
considering that their location had no vegetation from which they could derive their
subsistence. They also alleged that it was Pobre who first proposed the killing by casting
lots as the method of selecting the person to be slaughtered and eaten. The four defendants
were indicted of murder after they were rescued and after they had completed a course of
treatment for malnutrition and shock.

The prosecutors will argue that the defendants in the case should be convicted of
murder. The prosecution and defense panels respective arguments shall focus on the
following issues:

1. Should the defendants be indicted of murder?


a. Will the killing of one for the benefit of the other justified? Will it not amount
to a criminal liability?
b. Will the argument of necessity justify ones exemption from criminal liability?
c. Are there other constitutional infringements brought by the deed of the
defendants against Pobre?
d. Should the defendants be equally accountable for the crime? Is there
conspiracy in the case?
2. Will the state of necessity doctrine stand in the case at bar?
a. Are all elements of the state of necessity doctrine present in the case?
b. Is it justified for the defendants to have resorted to cannibalism?
c. What would have been the other effective alternatives in order to address the
problem posed by the circumstance?
3. Was the contract between Pobre and the remaining survivors valid?
a. Is there a valid contract on the basis of its formal requisites?
b. Is there well-founded consent which would have justified the killing of Pobre?
4. What will be the effects and implications in case the defendants will be acquitted in
this case?
a. Effects with respect to the criminal justice system
b. Effects with respect to the society at large

_________________

ARGUMENTS FOR PROSECUTION

Defendants committed murder even when there was an alleged necessity

Murder is the act of killing attended by special circumstances, such as treachery, or


the use of superior strength and the employment of means to weaken the defense of the
victim, or when such act was committed with evident premeditation and cruelty, among
others1.

In the case at bar, it was clear that Roger Pobres life was taken away by his
companions against his will. Although it was clear that he was the one who proposed the
casting of lots to select the person to be slaughtered and eaten, it was also clear from the
defendants testimony that Pobre later became hesitant and withdrew from the
arrangement. In fact, when Pobre had decided to reflect and wait for another week before
committing to the agreement, the other defendants protested and accused him of breach of
faith which served as a moral compulsion on him to yield to their demands.

1 Murder, according to Article 248 of the Revised Penal Code, is the unlawful killing of any
person which is not parricide or infanticide, provided that any of the following
circumstances is present: (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; and (6) With cruelty, by deliberately and inhumanly augmenting the
suffering of the victim, or outraging or scoffing at his person or corpse; subdivision 1 is
applicable to the case at bar. See Reyes, LB. 2008: The Revised Penal Code: Criminal Law,
Book Two, 7th edition. Manila: Rex Printing Company, pp. 494-495.
It is clear from the case that there was a deliberate intent to kill. Their initial
reluctance to adopt a desperate procedure as proposed by Pobre, their discussions of the
mathematical problems involved in the lots, and their eventual agreement to cast lots, are
circumstantial proofs that they were intelligent, conscious, and fully aware of what they
were undertaking that time. Furthermore, the defendants reprisal when Pobre withdrew
and decided to reflect and wait for another week shows that they were very much eager and
determined to pursue the killing. The prosecutors surmise that had there been no intent (or
at least very little intent) to kill, the defendants should have, at least, shown sympathy or
reconsidered their agreement when Pobre, the proponent himself, began to show fright in
committing to it. The prosecutors therefore believe that the circumstances above constitute
evident premeditation which qualifies the killing to murder.

The prosecutors also believe that the killing of Pobre was also qualified by the use of
superior strength.2 On the basis of quantity, the four defendants obviously outnumbered
Pobre, hence, rendering the victim at their mercy. It can also be presumed that the victim
was unarmed, and that even when the defendants at bar were also unarmed, their
collective and joint efforts to kill also amount to superior strength which is sufficient to
suppress Pobres defense. Notice that the case provides: The throw [of the dice] went
against him (Pobre), and he was then put to death and eaten by his companions. A plain
and simple reading of the quoted statement suggests that the defendants acted collectively
and jointly not only in eating the flesh of Pobre, but also in killing him.

Will the argument of necessity justify the killing?

In the case of The Queen vs. Dudley and Stephens, the English court ruled that
necessity is not a defense to a charge of murder. It was also noted that a man who, in order
to escape death from hunger, kills another for the purpose of eating his flesh is guilty of
murder even if at that time he has reasonable ground for believing that it affords the only
chance of preserving his life.3 The prosecutors believe that the same ruling should apply to
the case at bar, where the defendants invoke necessity to shield them from criminal
conviction.

Furthermore, the prosecutors also believe that the argument of necessity shall have
no merit in this case, considering that it is well-enshrined in the Constitution that no
person shall be deprived of life, liberty or property without due process of law, nor shall any

2Ibid., pp. 495-502


3The case of The Queen vs. Dudley and Stephens was about four men stranded in a lifeboat
without food or water. The three others later decided to kill their youngest companion and
ate his flesh. See The Queen vs. Dudley and Stephens (England, 1884) Queens Bench
Division 273.
person be denied the equal protection of the laws.4 The constitutional protection of the
right to life is not just a protection of the right to be alive or to the security of ones limb
against physical harm, but it is a persons inherent right to a good life. Once the right to life
is taken away, such person is deprived of the other rights inherent to him. It is the reason
why the right to life is sacred, and any means to end the life of another person other than
means permitted by law, is to be punished and brought to the hands of justice.

The prosecutors, however, are not blind to the fact that the law is not without
exceptions. The Philippine criminal law accepts the doctrine of state of necessity as a
justifying circumstance. Accordingly, any person who, in order to avoid an evil or injury,
does an act which causes damage to another is justified, provided that the following
requisites are present: (1) That the evil sought to be avoided actually exists; (2) That the
injury feared be greater than that done to avoid it; and (3) That there be no other practical
and less harmful means of preventing it.5 This justifying circumstance cannot be invoked
given that their fears were predicated on mere expectations and anticipations. The law
states that to qualify as a justifying circumstance, the evil sought to be avoided must
actually be imminent and existing.6 The prosecutors shall discuss on this more extensively
on the second argument.

Will the consent of the victim cleanse the defendants culpability of the crime of murder?

In the case of Armin Meiwes, the German court insisted on its conviction of
manslaughter despite the fact that it was consensual.7 The facts of the case reveal that
Meiwes posted an advertisement on the website The Cannibal Caf (a blog site for people
with cannibal fetishes). His post stated that he was looking for a well-built 18 to 30-year-
old to be slaughtered and consumed. Bernd Jurgen Armando Brandes responded positively
to Meiwes advertisement, a clear indication of the formers consent to the cannibalistic
fetishes of the latter.8 The doctrine in this case is that even if a person voluntary gives
consent for someone to end his life and consume him, it is still not sufficient to exempt a
cannibal from criminal conviction.

In the case of Pretty vs. United Kingdom, it was held that a constitutional right to
life is not a guarantee of ones right to die, and that despite the consent the victim may

4 The 1987 Philippine Constitution, Article III, Section 1.


5 The Revised Penal Code: Criminal Law, Book Two, Article 11, par. 4.
6 Ibid.
7 Armin Meiwes was subjected to a retrial in April 2005 after prosecutors appealed against

his sentence, under the belief that he should have been convicted of murder (and not
manslaughter). Meiwes was convicted of murder in May 2006. See Armin Meiwess,
Wikipedia, October 17, 2016. https://en.wikipedia.org/wiki/Armin_Meiwes
8 Ibid.
have given to the accused, the latter would still be subjected to criminal prosecution. 9
Furthermore, the English court also ruled that the contracting parties arealso obliged
to secure everyone the right to life. Such an obligation should in certain circumstances call
for positive action on the part of the contracting parties, in particular an active measure to
save lives. 10

In the case at bar, even if Pobres consent was secured before the defendants finally
decided to kill him, said defendants shall still be subjected to criminal conviction and shall
not relieve them of culpability.

Should the defendant be equally accountable for the crime? Is there conspiracy in this case?

Conspiracy exists when two or more persons come to an agreement concerning the
commission of a crime and decide to commit it.11 It is clear in the case that the defendants
conspired at killing Pobre. Their agreement with the proposal of Pobre, and their
subsequent moral compulsion by protesting against the withdrawal of Pobre revealed that
they were behind the criminal design and resolution. Furthermore, circumstances in the
case also reveal their collective eagerness, determination, and intent to pursue committing
the crime.

The prosecutors argue that since there is clear conspiracy in the case, the
defendants must be made to serve equal punishments. The case of People vs. Hernandez
states that for a collective responsibility among the accused to be established, it is sufficient
that at the time of the aggression, all of them acted in concert, each doing his part to fulfil
their common design to kill their victim.12

There was no necessity

The state of necessity doctrine13 will not apply in the case at bar because there was
no clear necessity to the means resorted by the defendants. The evil they sought to avoid,
which was death by starvation, was just purely anticipated at the time they killed Pobre.
Notice that their main concern when they first communicated with the committee of

9 Pretty vs. United Kingdom (England, 2002) Application No. 2346/02.


10 Ibid.
11 LB. 2012: The Revised Penal Code: Criminal Law, Book Two, 17th edition. Manila: Rex

Printing Company, p. 127.


12 People vs. Hernandez (Philippines, 1990) G.R. No. 90641
13 Any person who, in order to avoid an evil or injury, does an act which causes damage to

another is justified, provided that the following requisites are present: (1) That the evil
sought to be avoided actually exists; (2) That the injury feared be greater than that done to
avoid it; and (3) That there be no other practical and less harmful means of preventing it.
See The Revised Penal Code: Criminal Law, Book Two, Article 11, par. 4.
physicians was whether they would be able to survive in the next ten (10) days without food
or water. The prosecutors believe that had they felt the danger of death to be very
imminent, or had they been starving at that time that they felt that anytime soon they
would die, their concerns would have been focused on how to satiate their thirst and hunger
at that time, and approximating their survival within the next ten (10) days would have
been the least of their concern. Furthermore, when it was learned that they killed Pobre
only three (3) days after they communicated with the committee of physicians, it further
justifies that they were not in a state of danger at that time. Hence, when the defendants
were not avoiding any evil, or when the evil they sought to avoid were not existing and
mere products of anticipation, they cannot invoke the justifying circumstance of state of
necessity.14

Assuming there is necessity, was the means employed to address the necessity justified?

Studies show that on an average, man can survive without food for approximately
forty (40) days.15 Notice that they were rescued on the thirtieth (30th) day of their
imprisonment in the tavern.

Furthermore, the prosecutors believe that killing Pobre was not justified to address
the alleged necessity because there are other reasonable and lawful alternative means
which they could have resorted to. For example, the defendants could have resorted to
drinking their own urine, or have used their own urine to collect clean and sterile water.16

The Backpacker, a website that features travel stories, recommends a clean and safe
way to gather water using ones urine by means of condensation. Pee in a large container,
apply heat, catch and condense the vapor, and funnel that clean water into a second
container. Now, youve got two options. If you have a stove or a campfire, tinkle in your
cookpot, put a cup inside (on a flat rock), cover the whole thing with your lid inverted so the
handle points into the cup, and boil away. Or build a solar still: Dig a hole about a foot
deep, then add urine and any greenery you can find. Stand a cup in the center. Spread
plastic over the opening, pull taut, seal the edges using rocks and dirt. Use a stone to
weight the sheet over the cup so the water drips into it.17

14 People vs. Ricohermoso (Philippines, 1974) G.R. No. L-30527-28


15 How Long Can You Live Without Food, According To Science? Medical Daily, August 22,
2016. http://www.medicaldaily.com/how-long-can-you-live-without-food-according-science-
395630
16 Is Drinking Urine Dangerous? Backpacker, March 2015.

http://www.backpacker.com/survival/survival-skills/finding-food-and-water/survival-mom-
is-drinking-urine-dangerous/
17 Ibid.
The prosecutors seriously doubt that the defendants, as travelers, did not have
sufficient materials like lighters and water tumblers to aid them in storing water during
the time they were trapped inside the cave. The prosecutors also doubt that the defendants,
as travelers, did not have any knowledge regarding basic survival techniques like the
matters indicated in the preceding paragraph. Assuming that the defendants seriously had
no knowledge about basic survival techniques or at least have essential tools like lighters
and water tumblers when they sought adventure in the cave, it means that they were
negligent and imprudent in the first place. Roger Pobre did not deserve to die due to the
defendants lack of foresight and skill.

There was no valid contract to cleanse the defendants of their criminal


culpability

The prosecutors believe that Roger Pobre was a victim of the circumstance because
there was no valid agreement between him and the defendants. It was clearly established
in the case that either the consent was not freely given because Pobre was forced in
agreeing to cast the dice after withdrawing from the arrangement, or the object of the
contract was contrary to law.

Firstly, the prosecutors argue that the defendants in the case cannot justify the
killing of Pobre on the basis of a valid contract because the object in the contract, which is
to kill and eat the flesh of another person, is contrary to morals, good customs, public order
or public policy.18 Since the object was contrary to law, there is no contract at all because of
all the requisites of a contract, the object is the most indispensable if not fundamental in
order to have at least the shadow of a contract.19

Assuming the law may permit the eating of human flesh as the object of the contract, is
there still a valid contract in the case?

The prosecutors believe that Pobres consent was not freely given. Before the dice
were cast, Pobre declared his withdrawal from the arrangement as he had decided on
reflection to wait for another week before embracing an expedient so frightful and odious.
Because of his declaration, the others charged him with a breach of faith and proceeded to

18 Cannibalism is not among those crimes or offenses punished by The Revised Penal Code
or by any special law, hence, the prosecutors are in the position that the consumption of
human flesh as the main object of the contract may not be contrary to law. The law on
obligations and contracts also qualifies that the law is not the only measurement to
constitute a valid object. Since cannibalism is against the morals, good customs, and public
policy, the contract or agreement of Pobre and the defendants would still prove to be void.
See Jurado, DP. 2010: Commentaries and Jurisprudence on Obligations and Contracts, 12th
edition. Manila: Rex Printing Company, p. 396-409.
19 Ibid.
cast the dice. He wanted to cancel such arrangement but the defendants insisted on his
participation, and so it served to coerce him into an agreement he began having doubts
with.

The prosecutors also argue that the consent was not well-founded and intelligently
made, because the parties at hand did not understand what they were giving up at the
moment. Notice that they already complained about their conditions three (3) days before
they committed the crime. The prosecutors argue that given their conditions like hunger
and exhaustion, their prime motivation to pursue on casting the lots was most likely
premised on the rewards (the opportunity to satiate their hunger and thirst), without fully
understanding the risks behind it (the possibility of being put to death if the dice were cast
against any persons favor).

In the case at bar, Roger Pobre and the other defendants cannot be considered to
have consented freely into the agreement, because while they participated in the design of
the crime, they were most likely clinging on to the hope that the dice would not be cast
against their favor. Notice that this is different in the case of Armin Meiwes, where the
victim positively responded on an online advertisement calling for a "young well-built man
who wanted to be slaughtered and eaten."20 The risks and rewards were clear to the victim,
Bernd Jurgen Armando Brandes, and the German court took cognizance over the validity of
the consent on the Meiwes first trial for manslaughter.21

The victim gave his express consent in being killed and eaten, which means that
there was full understanding of what the offer was and the willingness of the deceased to be
killed and be eaten. Both parties were in agreement of what would happen. Again, the case
of Meiwes is unlike the case at bar where Pobres consent was not made intelligently and
freely.

Furthermore, under the law, consent is manifested by the meeting of the offer and
the acceptance upon the thing and the cause which are to constitute the contract.22 The
requisites for a valid consent are: (1) The consent must be manifested by the concurrence of
the offer and the acceptance; (2) The contracting parties must possess the necessary legal
capacity: and (3) The consent must be intelligent, free, spontaneous and real. The first
requisite is expressed, the second and third requisites are implied.23

20 Armin Meiwes, loc cit.


21
Ibid.
22 Jurado, loc cit., pp. 397-398.
23 Ibid.
The prosecutors maintain the position that there was no contract or an agreement
because there was no meeting of minds, hence, rendering the agreement to be invalid.

The acquittal of the defendants will cause great harm in society

The prosecutors believe that cases, conflicts, and controversies brought to the courts
for their settlement, must also consider their effects and implications to a greater society,
and the values they may proceed for the generations in the future. After all, crimes are
offenses not only to the parties at hand, but also to the society at large.

Firstly, the prosecutors believe that the acquittal of the defendants is tantamount to
an unfair justification of the commission of this crime. From our discussions in the
preceding paragraphs, we have been able to establish that there was no necessity when
they committed the crime, and that the killing was based solely on the anticipated fear of
death for the next ten (10) days. We have been able to establish that the fear of death they
sought to resolve was not existing or imminent, or even if it was existing and imminent, but
the means to address such necessity was not reasonable. We have been able to present
evidence that man can survive without food (but with water) for an average of forty (40)
days only, and that man can survive by drinking their own urine, or making clean water
through their own urine by means of condensation. The prosecutors just find it very
difficult to believe that the defendants, being travelers and explorers, did not have
knowledge about the most basic survival techniques as presented above. We also took notice
that they had with them a portable wireless machine capable of both sending and receiving
messages. This gives us the impression that the defendants were well-equipped, and had all
the necessary materials with them including the basic ones like water tumblers and
lighters to implement the above-mentioned survival techniques when they were trapped
inside the cave.

Assuming that the defendants honestly had no knowledge about the techniques, the
prosecutors argue that Roger Pobre did not deserve to die due to their lack of skill and
foresight. Hence, we believe that it is not right to set them free especially when the price of
their carelessness is the life of their companion who, like the rest of them, just wanted to
survive and see again the light of day.

Secondly, the prosecutors believe that the acquittal of the defendants permits pre-
determining the worth and value of life of people. The given case illustrates how the worth
of Pobres life was reduced to a mere object of a bet. What is worse, however, is that his life
was taken away in order to satiate the hunger and desperation of his companions.
Furthermore, the case at bar illustrates how little regard and respect the defendants have
over Pobres life, and how they prioritized their own needs at the expense of his life. The
prosecutors believe that the case is a classic example of an arbitrary valuation of peoples
worth just to forward their own personal interests. Again, Pobre faced the same
predicament as the defendants, he had no fault over their demise, and just like the
defendants, he, too, also desired to finally escape and be rescued.

The prosecutors also argue that in a society where we are made to believe the
equality of people regardless of their gender, religion, or class, the State must always
recognize the equality of every persons right to live. Had the State been so utilitarian and
complied with the concept of survival of the fittest at every human affair, the State would
have been justified to decriminalize abortion if the pregnancy of a woman is conflicted with
that womans choice. We are in a society where even the weakest and the poorest are
afforded rights and opportunities, because the value behind that is people have rights
which are inherent and inalienable. Similarly, any person should not be permitted to
arbitrarily determine and discount the worth and life of any person, like Roger Pobre.

Would the defendants be justified if Pobre died of hunger first before they ate his flesh?

The prosecutors have fairly established that the Revised Penal Code, or any special
laws, does not criminalize cannibalism. We have always maintained the position that
consuming human flesh is not an illegal act, hence, the charge in this case is for the murder
of Roger Pobre, and not for the consumption of his flesh.

If Pobre died first before the defendants ate his flesh, the charge for murder shall
not prosper, and the defendants shall be relieved from criminal responsibility.
Furthermore, the State does not afford rights to the dead because it no longer has the legal
standing to invoke such rights. Hence, in this case, the right of the defendants to survive
and live clearly outweighs the interests of the dead.