OF FICTITIOUS CASES AND REAL JUDGMENTS :MY OPINION ON THE SPELUNCEAN CASE BY LON FULLER

It has been a while since I have written something but that is not because the highly opinionated Queen Ms Vee has lost her opinions. On the contrary , I have so much to say fellow law lovers. I have been most fortunate to have come across THE SPELUNCEAN CASE which was written by Lon Fuller. The facts of the case are as follows:

Five cave explorers were caught underground after the tunnel collapsed.  They learned through radio contact that the rescuers were at least ten days away, and that they could not survive that long without food.  They further learned that they could survive if they were to eat one from among them.  They radioed to the outside to ask whether it would be legally and/or morally permissible to kill one among them to sustain the others, but no one above ground would answer the question.  One of the explorers, Whetmore, suggested that they throw dice to determine who should be eaten, and they all agree.  Just before the dice were thrown, Whetmore suggested that they wait until they are closer to death before proceeding; but he was outvoted, and a die is cast on his behalf.  Everyone, including Whetmore, agreed that the dice where thrown fairly.  Whetmore lost. 

When the rescuers finally reached the explorers, they found that Whetmore had been killed and eaten. The remaining explorers were put on trial for murder under the jurisdictions statute, "Whoever shall willfully take the life of another shall be punished by death."  They were found guilty and sentenced to be hanged. 

ON APPEAL THE JUDGES HELD THAT:

Chief Justice Truepenny: Would affirm the conviction and sentence.  The murder statute obviously applies to the defendants' conduct, and it is not within the Court's province to ignore the statute.  The executive may provide clemency.  Indeed, given the facts of the case, the executive is likely to provide clemency, and the Court should formally encourage the executive to do so.

Justice Foster: Would reverse.  The statute is inapplicable for two reasons.  First, once the explorers were cut off from society, they returned to a state of nature, and society's laws did not apply to them.  Alternatively, the purpose of the statute would not be served by applying it in this case.  (Read the article for the complete argument.)

Justice Tatting: Would recuse.  The statute clearly applies, but he could not live with himself if he voted to affirm because the result would be evil.  Therefore, he recuses.

Justice Keen: Would affirm.  It is not the judge's role to tell the executive what to do (contra Truepenny), other than to offer her opinion as a private citizen.  It is also not the judge's role to determine whether the explorers' actions were "good" or "bad," or whether the statute is good or bad policy.  The judge's role is to apply the statute, which very clearly applies on its own terms to this case.

Justice Handy: Would reverse.  The statute clearly applies, but the judge must exercise common sense.  Further, public opinion overwhelmingly supports reversal, and it is clear (contra Truepenny) that the executive will not grant clemency.  Therefore, it falls to the court.

NOW I WOULD ALSO WANT TO GIVE MY OWN JUDGEMENT AS "TAVAZIVA J":

TAVAZIVA J: Fiat iustitia ruat cælum! That is the expression that comes to my mind as I read the opinions rendered by my learned brothers. The Latin maxim means “LET JUSTICE BE DONE THOUGH THE HEAVENS MAY FALL”. Before I give my own opinion, I will begin by analyzing the opinions just rendered by my brothers pertaining to this case.

Firstly, like my brother Foster, the sentiments expressed by the Chief Justice in his judgment indeed induce a sense of shock and leave me utterly speechless. The wording of the statute is indeed clear "Whoever shall willfully take the life of another shall be punished by death." N. C. S. A. (N. S.) § 12-A. For the Chief Justice to even suggest that we must let our sympathies come into play shocks me to the core. As judges, our duty is merely to do that which the law states without letting our emotions take a hold of us.  As such I do agree with the Chief Justice when he states that this statute permits of no exception but I differ with him whereby he petitions us to join hands in making a petition to the Chief Executive as it is clear what we must do. We ought to follow the letter of the statutes without hesitation as the statute is clear and unambiguous.

While reading the opinion of my brother Foster, I must admit, I thought my brother was suffering from hallucinations and delusions. I associate myself with the views of my brother Tatting who correctly observes that Foster’s judgment is marred with contradictions and fallacies. My brother Tatting accurately brings out the difficulties that Foster’s approach brings. Instead of solving the problem at hand, the approach leaves a lot to be desired. Foster argues that; “I believe something more is on trial in this case than the fate of these unfortunate explorers; that is the law of our Commonwealth. If this Court declares that under our law these men have committed a crime, then our law is itself convicted in the tribunal of common sense, no matter what happens to the individuals involved in this petition of error. For us to assert that the law we uphold and expound compels us to a conclusion we are ashamed of, and from which we can only escape by appealing to a dispensation resting within the personal whim of the Executive, seems to me to amount to an admission that the law of this Commonwealth no longer pretends to incorporate justice.” The law is clear and I do not know how my brother Foster is getting it all wrong. Which tribunal of common sense is he talking about? Was he sworn in to uphold the tribunal of common sense?

Indeed, what is that which is called common sense? Is this common sense he talks of common to all people? How do we ascertain this common sense exactly? The law should be certain and where certainty lacks, that law is unsound and it is indeed a high sounding nothing. As justices of Newgarth , we ought to uphold that law which is ascertainable and in this instance the law is clear and unambiguous and must be followed to the dot. Foster argues that as judges we must be able to “read between the lines” just the way servants do. Well , well ,well if we as judges are being asked to read between the lines and actually come up with the will of the legislature, did the Explorers not read between the lines also when Whetmore withdrew from the casting of the lots? They should have read between the lines and should also have seen what Whetmore had eventually realized: An act of murder is abhorrent and ghastly and cannot be justified in any way. These men acted willfully and in a premeditated manner. Let’s take for example the case of a man and a woman who are undergoing courtship. The man asks the woman for coitus and she agrees. Later as they are undressing she changes her mind and tells him to stop and screams “NO”. The man ignores her protests shouting “ The lady doth protest too much” and has intercourse with her against her own will. Is that not rape? Can this man plead that it was necessary for him to have intercourse with the lady as she had aroused him? Can he plead that he was starving from the need to have sexual intercourse (alas hunger comes in different forms!)? Alas, he cannot! It is still rape no matter what this man might plead. alternatively , if the lady in question was an underage minor and willingly consented to sexual intercourse with a man who has attained the age of majority, our Newgarth Legal Age of Majority Act states that such a man is guilty of rape and he still gets convicted. What more of men who killed one of their own in cold blood? Surely these men should be convicted. Clearly a murder has been committed. Clearly the law has been broken . It is clear which path this bench must take. The road is clear and there are no stumbling blocks: these men’s conviction should be upheld as per the letter of the statute.

My brother Tatting says “In the discharge of my duties as a justice of this Court, I am usually able to dissociate the emotional and intellectual sides of my reactions, and to decide the case before me entirely on the basis of the latter. In passing on this tragic case I find that my usual resources fail me. On the emotional side I find myself torn between sympathy for these men and a feeling of abhorrence and disgust at the monstrous act they committed. I had hoped that I would be able to put these contradictory emotions to one side as irrelevant, and to decide the case on the basis of a convincing and logical demonstration of the result demanded by our law. Unfortunately, this deliverance has not been vouchsafed me.” It seems to me that my brother has forgotten the sacred vows he made to uphold the laws of this land and also his duty as a judge .To me(and indeed as it should be to every judge), a judge is justice personified. It has been stated that:”The way in which a judge conceives his judicial role is the most significant factor in the whole judicial process[1].” A judge should thus exercise judicial temperament by being neutral , respectful and composed[2].

My brother seems to forget that judges should be impartial: Judges should set aside their personal dispositions, be neutral, dispassionate and should mete out justice in a manner reminiscent of Lady Justice. Lady Justice is a symbol to us all who sit on the bench on what justice should be like. Lady Justice has often been depicted wearing a blindfold which represents objectivity, in that justice is or should be meted out objectively, without fear or favor, regardless of money, wealth, fame, power, or identity.  Hence , we should not concern ourselves with what the public wants or what we feel in our hearts. In her left hand, Lady Justice holds balance scales which represent the weighing of evidence meaning that evidence must be weighed on its own merit. In her right hand, Lady Justice is seen to have a sword that faces downward which represents punishment. Justice should be done and should be seen to be done by all. And if the law appears unjust , we should remember that there is no such thing as an unjust law. The law should be applied to everyone in the same manner with no fear, favor or bias. As such , I believe that my brother ,Tatting has acted in a cowardly manner and has failed to uphold the laws of this country which he swore to uphold at whatever cost. What he has done can be contrasted with a secret service agent who fails to protect the President of the country as he has sworn to do but rather tries to put the blame on terrorists or somebody else. In this instance, the fact still remains that the agent has failed his duty no matter how much he tries to justify his failure. The stench simply does not go away. My brother Tatting forgets that justice should be done though the heavens may fall.

I am in agreement with the case of Commonwealth v. Valjean whereby the Defendant was indicted for the larceny of a loaf of bread, and offered as a defense that he was in a condition approaching starvation. The court rejected this defense. My brother Tatting makes a correct observation whereby he asks: “If hunger cannot justify the theft of wholesome and natural food, how can it justify the killing and eating of a man?” Indeed , I am of the view that a man’s life is so sacrosanct that it should not be interfered with. No man has the power to play God , especially the common ordinary man who has not been sworn to the bench like I am. Moreso , no man’s life should be held to be dearer than another person’s life. In the Alexander Holmes’[3] trial, it was held that self preservation is not always a defense to homicide. A case in point which also helps clear things for the judiciary is the thought experiment of the “Plank of Carneades” which was first proposed by Carneades of Cyrene[4]. The experiment explores concept of self-defense in relation to murder by using a hypothetical case of two shipwrecked sailors, namely, A and B who see and swim towards a plank that can only support one of them. Sailor A gets to the plank first but Sailor B (anticipating that he is going to drown) pushes A off and away from the plank causing A to drown (the causal link). Sailor B gets on the plank and is later saved by a rescue team. The thought experiment poses the question of whether Sailor B can be tried for murder because if B had to kill A in order to live, then it would arguably be in self-defense. In the same breath, if Sailor B had killed A  willfully and for the purposes of self preservation , the same should be termed murder.

My brother Keen , I am afraid is the only one who understands that the law should be applied as it is. I associate myself with Keen’s judgment that the conviction should be upheld and agree with his reasoning. Moral considerations are indeed irrelevant in applying this statute. One must not forget that law is law , its goodness or badness is another  , and so is its morality.  Morality has no place in the world of the law. In fact , whose morality  would we be talking about? The positivist theory , which is indeed the bedrock of Newgarth laws and is our prevailing doctrine , “says law is law, regardless of its moral content and regardless of whether it is just or unjust. The positivist theory distinguishes law as it is from law as it ought to be. There is, therefore, such a thing as an unjust law, a bad law, an immoral law, and so on[5].” Hahlo and Kahn go a step further arguing that ;”The next question we have to answer is: what distinguishes the law of the lawyer … from other practical laws, such as moral law, the laws of etiquette or the laws of cricket? The answer is that law in the strict sense is the only body of rules governing human conduct that is recognized as binding by the state and, if necessary, enforced.[6]” In this case the law of Newgarth with regards to murder should be enforced whether it is just or unjust. So even if justice is not seen to be done in this case, the law should be applied but I am convinced that in this case upholding the conviction of these men is justice indeed.

My brother , Handy, in his opening statement asserts that ;”I have listened with amazement to the tortured ratiocinations to which this simple case has given rise. “Unfortunately, my brother evokes the same reaction from me when he delivers his opinion which leaves me in utter amazement. I am as pale as a corpse as my brother Handy argues that this court should take account of public opinion (apparently 90% of the public wants these men to be released) and also states on record (without any shame , I must add) that he has heard rumors that the Chief Executive will not commute the sentence despite strong opinion. I must confess that I nearly fell off my chair as I listened to my brother judge uttering such nonsense.  Being a judge is not a popularity contest and my brother , Handy should not use this forum to gain popularity. A judge must be willing to hand out judgments that can spark public outrage as long as is upholding the law he was sworn to protect. The court’s duty is not to please the public . The court’s duty is to the law and to the law alone : it is the sworn duty of every judge to apply the law, whatever he or she may think of the law[7]. To the public , it might seem like justice is not being done in this case but it should be understood that  ;” Admittedly law and justice do not always coincide. Examples of oppressive and unjust laws can be found in many countries. But this does not mean that the courts, which are sworn to uphold the law can ever allow their personal, subjective view of what constitutes justice to override the clear provisions of the law[8].”

I have come to the conclusion that these men willfully committed the murder of Whetmore beyond a reasonable doubt. In Bristow v. Commonwealth[9] the court held that "… a man must be taken to intend that which he does, or which is the immediate or necessary consequence of his act,". The same position was reinforced in the case of State v. Saunders[10] where it was held that if the act is dangerous and indicates a disregard of human life causing the death of another, the act is murder even though he didn't intend to kill. There is no dispute then as to whether these men murdered Whetmore or not. They committed the heinous crime and in such circumstances the law must be applied. I believe that all the three requirements for criminal proceedings set out in Commonwealth v. Kravitz 400 Pa. 198 (1960)[11]  were satisfied at the trial court as I have perused the record.  The Kravitz case, supra, quoted the leading case  of Commonwealth v. Gardner wherein the court held that: `In all criminal proceedings it is incumbent on the Commonwealth to establish beyond a reasonable doubt three elements: (1) the occurrence of an injury or loss, in homicide, a person deceased; (2) a criminal agency, in homicide, for example, that the death was caused by a beating, gunshot or circumstances indicating a felonious act (these two combined show a crime has been committed by someone); (3) that the defendant is the responsible party.” The court in this case further referred to the case of Commonwealth v. Bausewine whereby the court held that  facts and circumstances proved (in a criminal case) must, “in order to warrant a conviction, be such as to establish the guilt of the defendant, not . . . as being absolutely incompatible with his innocence, but at least beyond a reasonable doubt." This statement of the law was repeated in Commonwealth v. LaRue and Commonwealth v. Rogozinski.

In making my decision , I have had occasion to go through the case of R v Dudley and Stephens (1884) 14 QBD 273 DC which is a leading English criminal case that established a precedent, throughout the common law world, that necessity is not a defense to a charge of murder. It concerned survival cannibalism following a shipwreck  whereby Dudley and Stephens killed and ate a young boy for food. The court held that necessity was not a defense to a charge of murder and I am of the view that the same reasoning should apply to this case. If necessity is indeed a defense to murder, then a woman who kills her abusive husband should be absolved of the crime of murder. If we take necessity as a defense, then surely everyone can conjure up their own meaning of the word. To save us all the trouble, if we were to take the opinions of my brothers Foster and Handy, we might as well just declare that Newgarth is now a lawless jungle.

It is my opinion, that this act of murder is so odious that nothing may justify/ support it. I am firmly convinced that it is not legal neither is it right to kill a fellow human being. It is clear that a murder has been committed. I therefore conclude that the conviction should be affirmed.

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[1] Flango VE : Judicial Roles for Modern Court : http://www.ncsc.org/sitecore/content/microsites/future-trends-2013/

[2] ibid

[3] Christianson, Stephen. "Alexander Holmes Trial: 1842." Great American Trials. 2002. Encyclopedia.com. 10 Aug. 2016<http://www.encyclopedia.com>; see also U.S. v. Holmes (1842) 1 26 Fed. Cas. 360

[4] Encyclopedia.com

[5] Madhuku L : An Introduction to Zimbabwean , Weaver Press, 2010 at Page 2

[6] Note 3

[7] Note 3 at page 6

[8] Ebrahim JA in Minister of Lands & Ors v Commercial Farmers Union as quoted in State v Collop 1981 (1) SA 150 (AD), . 161

[9] As quoted in Robert A. Hendel: Criminal Law - Murder - Proof of Malice. Biddle v. Commonwealth, 206 Va. 14 (1965) William & Mary Law Review; Volume 7 | Issue 2 Article 19; http://scholarship.law.wm.edu/wmlr

[10] State v. Saunders, 108 W.Va. 148, 150 S.E. 519 (1929). Quoted in supra note 9

[11] Law.justia.com/annotations