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REPUBLIC OF THE PHILIPPINES

SUPREME COURT
Manila

ENRIQUE SOBERANO, DANIEL BERNARDO,


MATTEO GERONIMO, and JAMES LUSTRE,
Plaintiff,

G.R. No. 00001


FOR: REVIEW ON CERTIORARI

- versus-
PEOPLE OF THE PHILIPPINES,
respondent.
x--------------------------------------------------/

MEMORANDUM
(For the Prosecution)

The State, through the undersigned and unto this Honorable


Court, most respectfully states, thus:

PREFATORY STATEMENT

Article 3, Section 1 of the 1987 Philippine Constitution promotes


the fundamental right of persons not to be "deprived of life, liberty, or
property without due process of law". To uphold this right,
compliance of this provision must be paramount against necessity,
common sense or any natural law in forced. The constitution is framed
to be rigid that violation of such grave acts is tantamount to grave
punishment. This is more so if a person is killed overwhelmed by the
perpetrators numbers and their necessity to live.

STATEMENT OF THE CASE

This is a case on Review for Petition on Certiorari against the


Republic of the Philippines, et. al. filed by petitioners Enrique Soberano,
Daniel Bernardo, Mateo Geronimo, and James Lustre questioning the
conviction decided by the Court of Appeals.

STATEMENT OF FACTS

This case involves the commission of the crime of Murder, as


defined and punished under article 248 of the Revised Penal Code.

The four petitioners are miners. Early in May, the company of


Gerald Barreto penetrated into the cavern in the mountainous areas of
Sitio Kalunasan, Guadalupe, Cebu City. A landslide occurred while the
company was inside which completely blocked the only known exit to
the cave.

An extensive rescue mission was conducted but proved to be


unsuccessful after several attempts due to devastating landslide. In dire
efforts, rescuers lost their lives.

On the 20th day of isolation, the miners asked the rescuers how
long will they be saved. Gerald, in behalf of the miners, asked by radio
the members of the rescue team if they would be able to survive if they
consumed the flesh of one of them. From the testimony of the
petitioners, which was not objected, it appears that it was Barretto who
first proposed the use of some methods of casting lots.

After discussion of mathematical problems involved, agreement


was finally reached on the method of determining the issue by the use of
dice. Before the dice was cast, however, Barretto declared that he
withdraws from the arrangement, as he decided on reflection to wait for
another week before embracing an expedient so frightful and odious.

On the 23rd day, it was learned by the rescue team that Barreto had
been killed and eaten by his companions.

The petitioners were convicted by Regional Trial Court of Cebu


and the Court of Appeals for the commission for the crime of murder.

ISSUES

I. WHETHER OR NOT THE PETITONERS ARE GUILTY OF THE CRIME


OF MURDER?

ARGUMENT/DISCUSSION

I. The petitioners are guilty of the crime of murder

Article 248 of the Revised Penal Code provides, thus:

“Art. 248. Murder. – Any person who, not falling within the provisions of
article 246, shall kill another, shall be guilty of murder xxx, if committed
with any of the following attendant circumstances:
1. With treachery, xxx taking advantage of superior strength xxx;
xxx
2. With evident premeditation; xxx
xxx
3. xxx
4. xxx
5. xxx
6. With cruelty, by deliberately and inhumanly augmenting the
suffering of the victim, or outraging or scoffing at his person or corpse .

The elements of Murder are (1) that a person was killed, (2) that
the accused killed him, (3) that the killing was attended by any of the
qualifying circumstances mentioned in article 248 of the Revised Penal
Code, and (4) that the killing is not parricide or infanticide.

Treachery is present

As to the element of treachery (a person was killed), the


prosecution was able to formally offer, as part of its documentary
evidence, the death certificate of the victim GERALD BARRETTO.

Additionally, there is no relationship or special circumstance


between the victim and the accused that would qualify the case to one of
parricide or infanticide.

There is treachery when the offender commits any of the crimes


against persons employing means, methods, or forms in the execution
thereof which tend directly and specially to insure its execution, without
risk to himself arising from the defense which the offended party might
make (People vs. Lacao).
In People vs. Balondo, the court ruled that “The trial court has
correctly found that in killing the deceased Gloria Bulasa, the defendant
had taken advantage of his superior strength. This attendant
circumstance qualifies the crime committed as murder, defined in
Article 248 of the Revised Penal Code.”

There is treachery when the offender commits any of the crimes


against persons employing means, methods or forms in the execution
thereof which tend directly and specially to insure its execution without
risk to himself arising from the defense which the offended party might
make, which means that no opportunity was given to the latter to do so
(People vs. Tiozon).

Treachery is present when the offender commits any of the crimes


against a person, employing means, methods, or forms in the execution
thereof which tend directly and specially to insure its execution, without
risk to himself arising from the defense which the offended party might
make (People vs. Manzano).

From the testimony of the petitioners, which was not objected, it


appears that it was Barretto who first proposed the use of some
methods of casting lots. After discussion of mathematical problems
involved, agreement was finally reached on the method of determining
the issue by the use of dice. Before the dice was cast, however, Barretto
declared that he withdraws from the arrangement, as he decided on
reflection to wait for another week before embracing an expedient so
frightful and odious.

The treachery was present when the petitioners casted the die
among themselves notwithstanding the fact that Barretto had already
withdrawn his participation thus consent is absent.
Taking advantage of superior strength is present

Another circumstance that would qualify the killing to Murder is


that the clear advantage of strength and numbers from the petitioners.

In view of the numerical superiority of the appellants and their


companions in relation to the number of the party of deceased and his
companions and the fact that former were all armed and three of them
carried deadly weapons, the aggression must be considered as attended
with the aggravating circumstance of abuse of superior strength, which
raises the penalty to be imposed upon the accused to the maximum
degree (US vs. Tandoc).

Abuse of superior strength is present whenever there is a


notorious inequality of forces between the victim and the aggressor,
assuming a situation of superiority of strength notoriously
advantageous for the aggressor selected or taken advantage of by him in
the commission of the crime (People vs. Beduya, et. al.).

Barretto was in fact among those trapped inside the cave with
impossible chance of escape. It is advantageous of the petitioners to
perform the murder when the victim is overpowered by a greater
proportion – one against four.

Premeditation is present

Another qualifying circumstance that would qualify the killing to


Murder is that the same was clearly and evidently premeditated.

In People v. Logarto, the Court laid down the requisites of


premeditation which are:
(a) the time when the offender determined to commit the crime;
(b) an act manifestly indicating that he had clung to his
determination; and
(c) a sufficient lapse of time between the determination and the
execution of the crime to allow him to reflect upon the
consequences of his act and to allow his conscience to overcome
the resolution of his will.

The first element of premeditation is justified when the


petitioners decided to kill one of them to alleviate their hunger.

As to the second element, the casting of the die was the external
act that they must kill one of them shows that they have deliberately
clung unto their will.

As to the third, the petitioners have three days to decide if they


really want to cast the die and kill one of them. Barretto before casting
the die, decided to withdraw, showing that it is enough for a human
conscience to reflect on the act.

The premeditation to kill must be plain and notorious; it must be


sufficiently proven by evidence of outward acts showing the intent to
kill. In the absence of clear and positive evidence, mere presumptions
and inferences of evident premeditation, no matter how logical and
probable, are insufficient (People vs. Mendoza).

As testified by the petitioners, before the dice was cast, however,


Barretto declared that he withdraws from the arrangement, as he
decided on reflection to wait for another week before embracing an
expedient so frightful and odious.

Clearly, all of these requisites were present when the perpetrators


killed the victim as they were not able to reconcile with their conscience
before killing Barretto, although there was enough time for the
petitioners to reflect to decide between the good and the evil.

Cruelty is present

Another circumstance that would constitute murder is cruelty, by


deliberately and inhumanly augmenting the suffering of the victim, or
outraging or scoffing at his person or corpse.

In People vs. Carmina, the court stated “Even if treachery were not
present in this case, the crime would still be murder because of the
dismemberment of the dead body. One of the qualifying circumstances
of murder under Article 248, par. 6, of the Revised Penal Code is
"outraging or scoffing at (the) person or corpse" of the victim. There is
no question that the corpse of Billy Agotano was outraged when it was
dismembered with the cutting off of the head and limbs and the opening
up of the body to remove the intestines, lungs and liver. The killer
scoffed at the dead when the intestines were removed and hung around
Victoriano's neck "as a necklace" and the lungs and liver were
facetiously described as "pulutan."

The killing was attended by the qualifying circumstance of


outraging or scoffing at the victim's person or corpse. It was
established that after the victim was hacked and stabbed, Accused
Frankie decapitated his head and threw the same in the "lubluban ng
kalabaw". It is well-settled that mere decapitation of the victim's head
constitute outraging or scoffing at the corpse of the victim, thus
qualifying the killing to murder. Lastly, the killing of the victim neither
constituted parricide nor infanticide. (People vs. Gerrero)
Barretto was put to death and eaten by his companions. Such act,
dismembering a person’s body for a mere meal, would still constitute
murder.

CONCLUSION

Human flesh should not be a solution for the relief of hunger


notwithstanding of food long enough, the bodies of starving people
would break down to keep its vital organs in function.

In a civilized world, starvation should not constitute to deprive a


person of his rights to live.

Hence, without a shadow of a doubt, accused committed the


above-mentioned crime, as proven by the circumstances and evidence
for the prosecution.

The State prays that they be punished accordingly – that justice be


served, though the heavens may fall.

PRAYER

WHEREFORE, premises considered, the undersigned fervently prays


that this Honorable Court CONVICT accused for the commission of the
crime of MURDER, their guilt having been established by the
prosecution beyond reasonable doubt.

Other reliefs, just and equitable, are likewise prayed for.


MOST RESPECTFULLY SUBMITTED.
Cebu City, Cebu, Philippines, 29 August 2019
Office of the Solicitor General
Atty. Denmark Collo
Atty. Miguel Louie Sarigumba III
Atty. Jhoronnie Gayl C. Bontes
Atty. Joanne T. Bolano
Atty. Nina Troena N. Tabudlong
Atty. Jean Stephanie L. Verallo
Atty. Theresa T. Godinez
Atty. Albert Repunte
Atty. Leanza Pauline Ycong

Copy Furnished:
Chief Justice Vir Celito Raymundo

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