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412 SUPREME COURT REPORTS receipts for amounts received from complainants has no bearing

ANNOTATED on her culpability. The complainants have shown through their


People vs. Olermo respective testimonies and evidence that she was indeed involved
in the prohibited recruitment. In fact, it was even proven that
G.R. No. 127848. July 17, 2003. *
appellant advertised her services in a newspaper.
PEOPLE OF THE PHILIPPINES, appellee, vs. MARLENE Same; Same; Criminal Law; Illegal Recruitment in Large
OLERMO @ Marlene Tolentino, appellant. Scale; Elements.—The elements of illegal recruitment in large
Labor Law; Illegal Recruitment; Words and scale are: (1) the person undertakes any recruitment activity
Phrases; “Recruitment and Placement,” Defined; The act of an defined under Article 13, paragraph (b), or any prohibited practice
accused of promising, offering and assuring employment overseas enumerated under Article 34 of the Labor Code; (2) said person
to certain persons fall squarely within the ambit of recruitment does not have a license or authority to engage in the recruitment
and placement as defined in Article 13, par. (b) of the Labor Code, and placement of workers; and (3) the act is committed against
and the fact that she did not sign nor issue some of the receipts for three or more persons, individually or as a group.
the amounts received from the latter has no bearing on her Witnesses; It is settled that where the issue is on credibility,
culpability.—Article 13, paragraph (b) of the Labor Code the findings of the trial court will generally not be disturbed.—
enumerates the acts that constitute recruitment and placement: With respect to the credibility of these witnesses, it is settled that
(b) ‘Recruitment and placement’ refers to any act of canvassing, where the issue is on credibility, the findings of the trial court will
enlisting, contracting, transporting, utilizing, hiring, or procuring generally not be disturbed. The trial court has the advantage of
workers, and includes referrals, contract ser- hearing the witnesses and observing their conduct during the
trial, circumstances that carry great weight in appreciating
_______________
credibility. The trial court is thus in a better position to settle such
*FIRST DIVISION. an issue.
413 Criminal Procedure; Illegal Recruitment in Large
VOL. 406, JULY 17, 2003 413 Scale; Venue; Jurisdiction; Where some acts material and
People vs. Olermo essential to the crime and requisite to its consummation occur in
one province or city and some in another, the court of either
vices, promising or advertising for employment, locally or
province or city has jurisdiction to try the case, it being understood
abroad, whether for profit or not: Provided, That any person or
that the court first taking cognizance of the case will exclude the
entity which, in any manner, offers or promises for a fee
others.—The Rules of Court provide that in all criminal
employment to two or more persons shall be deemed engaged in
prosecutions, the action shall be instituted and tried in the court
recruitment and placement. Appellant’s acts of promising,
of the municipality or province wherein the offense was
offering and assuring employment overseas to complainants fall
committed or any of the essential ingredients thereof took place.
squarely within the ambit of recruitment and placement as
In the case at bar, the prosecution proved that the element of
defined above. The fact that she did not sign nor issue some of the
offering, promising, and advertising overseas employment to the
complainants took place in appellant’s office in Valenzuela. which deceit consists of the false statements or fraudulent
Furthermore, it is elementary that jurisdiction in criminal cases representation of the accused, made prior to, or at least
is determined by the allegations in the information. In this case, simultaneously with, the delivery of the thing by the victim, it
the information filed against appellant for illegal recruitment in being essential that such false statement or fraudulent
large scale clearly placed the locus criminis in Valenzuela. As representation constitutes the very cause or the only motive that
stated earlier, it was in Valenzuela where the complainants were induces the complainant to part with the thing of value.—
offered or promised overseas employment by ap- Subdivision 2(a) of Article 315 of the Revised Penal Code lists
414 ways by which estafa may be committed: 2. By means of any of
414 SUPREME COURT the following pretenses or fraudulent acts executed prior to or
REPORTS ANNOTATED simultaneously with the commission of the fraud: (a) By using
People vs. Olermo fictitious name, or falsely pretending to possess power, influence,
pellant. Furthermore, based on the prosecution’s evidence, qualifications, property, credit, agency, business or imaginary
the Court is sufficiently convinced that at least one element of the transactions; or by means of other similar deceits. There are three
crime of illegal recruitment in large scale took place in ways of committing estafa under this provision: (1) by using a
Valenzuela. Where some acts material and essential to the crime fictitious name; (2) by falsely pretending to possess power,
and requisite to its consummation occur in one province or city influence, qualifications, property, credit, agency, business or
and some in another, the court of either province or city has imaginary transactions; and (3) by means of other similar deceits.
jurisdiction to try the case, it being understood that the court first Under this class of estafa, the element of deceit is indispensable.
taking cognizance of the case will exclude the others. Such deceit consists of the false statement or fraudulent
Attorneys; The right to counsel is intended to preclude the representation of the appellant, which was made prior to, or at
slightest coercion as would lead the accused to admit something least simultaneously with, the delivery of the thing by the
false.—The right to counsel is intended to preclude the slightest complainant, it being essential that such false statement or
coercion as would lead the appellant to admit something false. fraudulent representation constitutes the very cause or the only
Moreover, the words “preferably of his own choice” do not mean motive that induces the complainant to part with the thing of
that the choice of a lawyer by appellant is exclusive as to preclude value. If there is no prior or simultaneous false statement or
other equally competent and independent attorneys from fraudulent representation, any subsequent act of appellant,
handling the defense. If this were so, the tempo of justice would however fraudulent and suspicious it may appear, cannot serve as
be solely within the control of appellant who could choose to a basis for prosecution for this class of estafa.
415
impede the judicial process by simply selecting a lawyer who, for
one reason or another, is not available to defend her.
VOL. 406, JULY 17, 2003 415
Criminal Law; Estafa; Ways of Committing Estafa Under People vs. Olermo
Art. 315(2)(a) of the Revised Penal Code; Under the class of estafa Same; Same; Damages; The fundamental principle of the law
defined in Art. 315 (2)(a), the element of deceit is indispensable, on damages is that one injured by a breach of contract or by a
wrongful or negligent act or omission shall have a fair and just is not demanded by the law to convict of any criminal charge but
compensation, commensurate with the loss sustained as a moral certainty is required, and this certainty is required as to
consequence of the defendant’s acts; Actual damages are such every proposition of proof requisite to constitute the offense. In
compensation or damages for an injury that will put the injured the said criminal case for estafa, no proof whatsoever was adduced
party in the position in which he had been before he was injured.— by the prosecution. The offended party, Mary Jane Aquino-
We note, however, that in Criminal Case No. 2863-V-93, the trial Villanueva, was not even asked to testify in open court.
court only ordered appellant to pay complainant Ariston B.
Villanueva a total amount of P35,000 in actual damages. The APPEAL from a decision of the Regional Trial Court of
fundamental principle of the law on damages is that one injured Valenzuela City, Br. 172.
by a breach of contract or by a wrongful or negligent act or
omission shall have a fair and just compensation, commensurate The facts are stated in the opinion of the Court.
with the loss sustained as a consequence of the defendant’s acts. The Solicitor General for plaintiff-appellee.
Actual damages are such compensation or damages for an injury Public Attorney’s Office for accused-appellant.
that will put the injured party in the position in which he had 416
been before he was injured. These pertain to such injuries or 416 SUPREME COURT REPORTS
losses that are actually sustained and susceptible of ANNOTATED
measurement. To justify an award of actual damages, there must
be competent proof of the actual amount of loss. Credence can be
People vs. Olermo
given only to claims that are duly supported by receipts. In this
case, it was duly proven by the receipts presented by complainant AZCUNA,J.:
Villanueva and his testimony during trial that he handed
appellant a total amount of P70,000 and only got back P19,000. In separate informations filed before the Regional Trial
Hence, correction of the trial court’s award is called for. Appellant Court (RTC) of Valenzuela, Metro Manila, Branch 172,
should be ordered to pay complainant Ariston B. Villanueva the Marlene Olermo a.k.a. Marlene Tolentino was accused of
total amount of P51,000 in actual damages in Criminal Case No. illegal recruitment in large scale and five counts of estafa.
2863-V-93. In Criminal Case No. 2860-V-93, a prosecution for illegal
Same; Presumption of Innocence; Absolute certainty of guilt recruitment in large scale, the information reads:
is not demanded by the law to convict of any criminal charge but “That during the period of February to June 1993, in Valenzuela,
only moral certainty, and this certainty is required as to every Metro Manila and within the jurisdiction of this Honorable Court,
proposition of proof requisite to constitute the offense.—With the above-named accused, representing herself to have the
respect to Criminal Case No. 2862-V-93, the prosecution failed to capacity to contract, enlist and recruit workers for employment
fulfill its duty to produce evidence showing appellant’s guilt abroad, did then and there wil[l]fully and unlawfully, for a fee,
beyond reasonable doubt of the charges of estafa committed recruit and promise employment/job placement in a large scale to
against Mary Jane Aquino-Villanueva. Absolute certainty of guilt ARISTON B. VILLANUEVA, MARY JANE AQUINO-
VILLANUEVA, ALFRED BRYANT BERADOR, FRENNIE People vs. Olermo
MAJARUCON and WILFREDO TUBALE, without said accused ply, misappropriate and convert [the same] to her own personal
having secured first the necessary license or authority to engage use and benefit, [and] despite demands made upon her to return
in recruitment activity from the Philippine Overseas Employment the said amount of P40,000, said accused failed and refused and
Administration (POEA), in violation of the aforementioned still fails and refuses to do so, to the damage and prejudice of the
provision of Law. complainant in the aforementioned amount of P40,000.
Contrary to Law.” 1
Contrary to Law.” 2

The five informations for estafa, on the other hand, In Criminal Case No. 2862-V-93:
docketed as Criminal Cases Nos. 2861-V-93, 2862-V-93, “That sometime in May 1993 or thereabouts in Valenzuela, Metro
2863-V-93, 2864-V-93, and 2865-V-93, allege that the Manila and within the jurisdiction of this Honorable Court, the
appellant violated paragraph 2(a), Article 315 of the Revised above-named accused, defrauded and deceived one MARY JANE
Penal Code, thus: AQUINO-VILLANUEVA in the following manner to wit: said
In Criminal Case No. 2861-V-93: accused, by means of false manifestations and fraudulent
“That sometime in the month of February 1993 or thereabouts in representation made to the said complainant to the effect that she
Valenzuela, Metro Manila and within the jurisdiction of this has the capacity and power to recruit and employ complainant
Honorable Court, the above-named accused, defrauded and abroad and facilitate the necessary amount to meet the
deceived one NAPOLEON APARICIO y CLEMENTE in the requirements thereof knowing said manifestations and
following manner to wit: said accused, by means of false representation to be false and fraudulent and made only to induce
manifestations and fraudulent representation made to the said said complainant to give, as in fact, the latter did give and deliver
complainant to the effect that she has the capacity and power to to said accused cash money amounting to P35,000, but said
recruit and employ complainant abroad and facilitate the accused, once in possession of the same, with intent to defraud
necessary amount to meet the requirements thereof, knowing said and deceive the herein complainant, did then and there willfully,
manifestations and representation to be false and fraudulent and unlawfully and feloniously misapply, misappropriate and convert
made only to induce said complainant to give, as in fact, the latter [the same] to her own personal use and benefit, [and] despite
did give and deliver to said accused cash money amounting to demands made upon her to return the said amount of P35,000,
P40,000, but said accused, once in possession of the same, with said accused failed and refused and still fails and refuses to do so,
intent to defraud and deceive the herein complainant, did then to the damage and prejudice of the complainant in the
and there willfully, unlawfully and feloniously misap- aforementioned amount of P35,000.
Contrary to Law.” 3

_______________ In Criminal Case No. 2863-V-93:


That sometime in May and June 1993 or thereabouts in
1 Rollo, p. 7. Valenzuela, Metro Manila and within the jurisdiction of this
417
Honorable Court, the above-named accused, defrauded and
VOL. 406, JULY 17, 2003 417
deceived one ARISTON B. VILLANUEVA in the following fraudulent representation made to the said complainant to the
manner to wit: said accused, by means of false manifestations and effect that she has the capacity and power to recruit and employ
fraudulent representation made to the said complainant to the complainant abroad and facilitate the necessary amount to meet
effect that she has the capacity and power to recruit and employ the requirements thereof, knowing said manifestations and
complainant abroad and facilitate the necessary amount to meet representation to be false and fraudulent and made only to induce
the requirement thereof, knowing said manifestations and said complainant to give, as in fact, the latter did give and deliver
representation to be false and fraudulent and made only to induce to said accused, cash money amounting to P20,000, but said
said complainant to give, as in fact, the latter did give and deliver accused, once in possession of the same, with intent to defraud
to said accused cash money and deceive the herein complainant, did then and there willfully,
unlawfully and feloniously misapply, misappropriate and convert
_______________ [the same] to her own personal use and benefit, [and] despite
demands made upon her to return the said amount of P20,000,
2 Rollo, p. 8.
3 Rollo, p. 9. said accused failed and refused and still fails and refuses to do so,
418 to the damage and prejudice of the complainant in the
418 SUPREME COURT REPORTS aforementioned amount of P30,000.
ANNOTATED Contrary to Law.” 5

In Criminal Case No. 2865-V-93:


People vs. Olermo
“That sometime in the month of February 1993 or thereabouts in
amounting to P35,000, but said accused, once in possession of the
Valenzuela, Metro Manila and within the jurisdiction of this
same, with the intent to defraud and deceive the herein
Honorable Court, the above-named accused, defrauded and
complainant, did then and there willfully, unlawfully and
deceived one ALFRED BRYANT BERADOR y OCHOA in the
feloniously misapply, misappropriate and convert [the same] to
following manner to wit: said accused, by means of false
her own personal use and benefit, [and] despite demands made
manifestations and fraudulent representation made to the said
upon her to return the said amount of P35,000, said accused failed
complainant to the effect that she has the capacity and power to
and refused and still fails and refuses to do so, to the damage and
recruit and employ complainant abroad and facilitate the neces-
prejudice of the complainant in the aforementioned amount of
P35,000. _______________
Contrary to Law.” 4

In Criminal Case No. 2864-V-93: 4 Rollo, p. 10.


Rollo, p. 11.
“That sometime in the month of March 1993 or thereabouts in
5

419
Valenzuela, Metro Manila and within the jurisdiction of this
Honorable Court, the above-named accused, defrauded and
VOL. 406, JULY 17, 2003 419
deceived one FRENNIE MAJARUCON y BACO in the following People vs. Olermo
manner to wit: said accused, by means of false manifestations and
sary amount to meet the requirements thereof, knowing said him his plane ticket. However, he was not able to leave on
manifestations and representation to be false and fraudulent and said date. The date of his departure was moved several times
made only to induce said complainant to give, as in fact, the latter by appellant until he began to suspect something was amiss.
did give and deliver to said accused cash money amounting to Hence, he reported the matter to the National Bureau of
P25,350, but said accused, once in possession of the same, with
Investigation (NBI). Appellant thereafter pretended to
intent to defraud and deceive the herein complainant, did then
refund the amounts he paid by issuing him a check, which,
and there willfully, unlawfully and feloniously misapply,
misappropriate and convert [the same] to her own personal use however, bounced when it
and benefit, [and] despite demands made upon her to return the
_______________
said amount of P25,350, said accused failed and refused and still
fails and refuses to do so, to the damage and prejudice of the 6 Rollo, p. 12.
complainant in the aforementioned amount of P25,350. 7 TSN, October 13, 1993, pp. 2-6.
Contrary to Law.” 6 8 Exhibits “K” and “L,” Folder of Exhibits, pp. 11-12.

Complainant Napoleon C. Aparicio, jobless, testified that he


7 420
came to know appellant through his sister in February 1993. 420 SUPREME COURT REPORTS
He allegedly talked with appellant Marlene Olermo a.k.a. ANNOTATED
Marlene Tolentino regarding the latter’s offer to give him a People vs. Olermo
job overseas. She informed complainant Aparicio that he was presented for payment. He later learned that appellant
9

needed to pay her P40,000 for a work permit and a plane was not a duly-licensed recruiter.
ticket to Saipan where he is allegedly to be employed. Complainant Ariston Villanueva, jobless, is married to
10

Aparicio agreed to pay her the said amount. He made his another complainant Mary Jane Aquino-Villanueva. They
first payment of P20,000 on March 30, 1993. Appellant were not married yet when they first encountered appellant.
allegedly called him up and instructed him to deliver the He testified that he read the advertisement of appellant in
money, which he did, to a certain Jennifer Balduesa at a newspaper, sometime in April 1993, offering assistance to
Danding Building, Municipal Site, Valenzuela, Metro those who would like to work overseas. He called the 11

Manila where appellant’s office, Jirk Manpower Services, is number indicated therein and spoke to appellant. They first
located. Complainant Aparicio made his second payment on agreed to meet in Greenbelt, Makati, but during the
April 21, 1993. Again, he delivered the amount of P20,000 to appointed hour, appellant did not show up. The following
Jennifer Balduesa in appellant’s office in Valenzuela upon day, they spoke again on the telephone and agreed to meet
the instructions of appellant. He was issued a cash voucher in the office of appellant in Valenzuela. When they met,
for each payment he made. Appellant promised him that he
8 appellant informed him and complainant Aquino-
would leave for Saipan on May 3, 1993 and she even showed Villanueva that she can help them find work in Hong Kong.
However, they must pay her P35,000 each for their plane VOL. 406, JULY 17, 2003 421
fares and placement fees. On May 3, 1993, complainant People vs. Olermo
Villanueva paid appellant an initial amount of P40,000. On Japan. He was issued a receipt for each payment made. He 16

May 20, 1993, he gave appellant P30,000. Appellant issued was not, however, allowed to leave for Japan immediately.
him a receipt for each payment he made. Their departure,
12
Complainant Berador was first required by appellant to
however, kept on being postponed by appellant. Finally, they undergo a seminar to learn Nippongo for one week.
asked for a refund of their payments. Appellant issued three However, on the fourth day of the seminar, appellant was
checks on different dates amounting to P70,000. However, arrested by the authorities. Complainant Berador
these checks were dishonored when they were presented for subsequently learned that appellant did not have a license
payment. In the end, appellant gave back only P19,000.
13
to recruit workers for overseas employment. He went to the
Complainants Villanueva and Aquino-Villanueva POEA and was issued a certification stating this fact.
17

subsequently inquired with the Philippine Overseas Complainant Frennie Majarucon, jobless, testified that
18

Employment Agency (POEA) whether or not appellant was she was introduced to appellant by her kumadrenamed
licensed to recruit persons for overseas employment. They Elvie sometime in March 1993. They first met in the office
were informed that appellant is not a licensed recruiter and of appellant in front of the Municipal Hall of Valenzuela.
they procured a certification to this effect. 14
Appellant informed her that she had an available job for her
Complainant Alfred Bryant Berador, a cook, testified15
in Hong Kong and that she would need P45,000 for
that on or about February 22, 1993, he was introduced to placement and processing fees and P2,000 for her passport.
appellant by one of her partners in the agency. He met her Complainant Majarucon was only able to give P22,000,
in their office in front of the Municipal Hall of Valenzuela. which was evidenced by the receipts issued to her by
He paid her a total amount of P24,000 as placement and appellant. However, complainant Majarucon never left for
19

processing fees for his employment in Hong Kong. She thus inquired from the people in appellant’s
office whether the amount she paid to appellant can be
_______________
refunded. She was promptly informed, however, that
9 Exhibit “M,” Folder of Exhibits, p. 13. appellant had been arrested and was already in jail for
10 TSN, September 7, 1993, pp. 2-13. illegal recruitment. Complainant Majarucon then proceeded
11 Exhibit “B,” Folder of Exhibits, p. 3.

12 Exhibits “C” and “D,” Folder of Exhibits, pp. 4-5.


to the POEA where she found out that the appellant was
13 Exhibits “F,” “G,” and “H,” Folder of Exhibits, pp. 7-9.
indeed not a licensed recruiter.
14 Exhibit “E,” Folder of Exhibits, p. 6. For her part, appellant Olermo denied all the charges
15 TSN, November 3, 1993, pp. 3-30.
against her. She alleged that she was engaged only in visa
20

421
assistance. She denied ever having represented herself as
possessing authority to deploy workers for overseas of P100,000, without subsidiary imprisonment in case of
employment. She thus explained that she only offered insolvency;
complainants Villanueva, Aquino-Villanueva, Aparicio and 2. (2)In Crim. Case No. 2861-V-93, the Court finds accused
Majarucon assistance in processing their tourist visas. With Marlene Olermo @ Marlene Tolentino guilty beyond
reasonable doubt and as principal of the crime
respect to the accusation of complainant Berador, appellant
of Estafa as defined and penalized under paragraph 2(a)
alleged that she was only helping him process his trainee’s
in relation to the first paragraph of Article 315 of the
visa. Revised Penal Code without any attending mitigating or
aggravating circumstance and, applying the
_______________
Indeterminate Sentence Law, hereby sentences her to a
16 Exhibits “O” to “O-4,” Folder of Exhibits, pp. 14-18. penalty of SIX (6) YEARS and TWO (2) MONTHS
17 Exhibit “Q,” Folder of Exhibits, p. 19. of prision mayor as minimum to TEN (10) YEARS and
18 TSN, September 13, 1993, pp. 2-5.
ONE (1) DAY of prision mayor as maximum. The accused
19 Exhibits “J” and “J-1,” Folder of Exhibits p. 10.
is further sentenced to pay complaining witness
20 TSN, May 5, 1995, pp. 2-51.
Napoleon Aparicio the amount of P40,000, without
422
subsidiary imprisonment in case of insolvency, plus the
422 SUPREME COURT REPORTS costs of suit;
ANNOTATED 3. (3)In Crim. Case No. 2862-V-93, the Court finds accused
People vs. Olermo Marlene Olermo @ Marlene Tolentino guilty beyond
On August 23, 1996, the trial court rendered a decision reasonable doubt and as principal of the crime
convicting appellant of the crimes charged. The dispositive of Estafa as defined and penalized under paragraph 2(a)
portion of the decision reads: in relation to the first paragraph of Article 315 of the
“WHEREFORE, judgment is hereby rendered as follows: Revised Penal Code without any attending mitigating or
aggravating circumstances and, applying the
1. (1)In Crim. Case No. 2860-V-93, the Court finds accused Indeterminate Sentence Law, hereby sentences her to a
Marlene Olermo @ Marlene Tolentino guilty beyond penalty of SIX (6) YEARS and TWO (2) MONTHS
reasonable doubt and as principal of the crime of Illegal of prision mayor as minimum to TEN (10) YEARS and
Recruitment in large scale as defined and penalized ONE (1) DAY of prision mayor as maximum. The accused
under Article 38 in relation to Article 39 (a) of the Labor is further sentenced to pay complaining witness Mary
Code, as amended by P.D. 2018, without any attending Jane Aquino-Villanueva the amount of P35,000, without
mitigating or aggravating circumstance and hereby subsidiary imprisonment in case of insolvency, plus the
sentences her to a penalty of life imprisonment and a fine costs of suit;
4. (4)In Crim. Case No. 2863-V-93, the Court finds accused
Marlene Olermo @ Marlene Tolentino guilty beyond
reasonable doubt and as principal of the crime 3. (6)In Crim. Case No. 2865-V-93, the Court finds accused
of Estafa as defined and penalized under paragraph 2(a) Marlene Olermo @ Marlene Tolentino guilty beyond
in relation to the first paragraph of Article 315 of the reasonable doubt and as principal of the crime
Revised Penal Code without any attending mitigating or of Estafa as defined and penalized under paragraph 2(a)
aggravating circumstances and, applying the in relation to the first paragraph of Article 315 of the
Indeterminate Sentence Law, hereby sentences her to a Revised Penal Code without any attending mitigating or
penalty of SIX (6) YEARS and TWO (2) MONTHS aggravating circumstance, and, applying the
of prision mayor as minimum to TEN (10) YEARS and Indeterminate Sentence Law, hereby sentences her to a
ONE (1) DAY of prision mayor as maximum. The accused penalty of FOUR (4) YEARS and TWO (2) MONTHS
is further sentenced to pay complaining witness Ariston of prision correccional as minimum to EIGHT (8) YEARS
B. Villa- of prision mayor as maximum. The accused is further
sentenced to pay complaining witness Alfred Bryant
423 Berador y Ochoa the amount of P25,350, without
VOL. 406, JULY 17, 2003 423 subsidiary imprisonment in case of insolvency, plus the
People vs. Olermo costs of suit.

1. nueva the amount of P35,000, without subsidiary SO ORDERED.” 21

imprisonment in case of insolvency, plus the costs of suit; Appeal followed and the following are assigned as errors:
2. (5)In Crim. Case No. 2864-V-93, the Court finds accused
Marlene Olermo @ Marlene Tolentino guilty beyond I
reasonable doubt and as principal of the crime
of Estafa as defined and penalized under paragraph 2(a) The trial court gravely erred in giving full weight and credence to
in relation to the first paragraph of Article 315 of the the testimonies of the prosecution witnesses and in not
Revised Penal Code without any attending mitigating or considering the defense interposed by the accused-appellant.
aggravating circumstances and, applying the
II
Indeterminate Sentence Law, hereby sentences her to a
penalty of TWO (2) YEARS, FOUR (4), MONTHS and The court a quo gravely erred in convicting accused-appellant
ONE (1) DAY of prision correccional as minimum to SIX of the crimes charged despite failure of the prosecution to prove
(6) YEARS and ONE (1) DAY of prision mayor as her guilt beyond reasonable doubt.
maximum. The accused is further sentenced to pay
complaining witness Frennie Majarucon y Baco the _______________
amount of P20,000, without subsidiary imprisonment in
case of insolvency, plus the costs of suit. 21 Decision, pp. 12-13; Rollo, pp. 32-33.
424
424 SUPREME COURT REPORTS contends that her alleged act of illegally recruiting at least
ANNOTATED three persons was not sufficiently established by the
People vs. Olermo testimonies of the witnesses for the prosecution.
Article 13, paragraph (b) of the Labor Code enumerates
III the acts that constitute recruitment and placement:
(b) ‘Recruitment and placement’ refers to any act of canvassing,
The court a quo gravely erred in finding the accused-appellant enlisting, contracting, transporting, utilizing, hiring, or procuring
guilty beyond reasonable doubt of the crime of large-scale workers, and includes referrals, contract services, promising or
recruitment despite its lack of jurisdiction. advertising for employment, locally or abroad, whether for profit
or not: Provided, That any person or entity which, in any manner,
IV offers or promises for a fee employment to two or more persons
shall be deemed engaged in recruitment and placement.
The court a quo gravely erred in disregarding the right of the
appellant to have a competent and independent counsel. _______________

V Appellant’s Brief, pp. 1-2; Rollo, pp. 55-56.


22

425
The court a quo gravely erred in finding the accused-appellant VOL. 406, JULY 17, 2003 425
guilty beyond reasonable doubt for the crime of estafa. People vs. Olermo
Appellant’s acts of promising, offering and assuring
VI
employment overseas to complainants fall squarely within
The court a quo gravely erred in ordering the payment of the ambit of recruitment and placement as defined above.
P35,000, to complainant Mary Jane Aquino Villanueva; P35,000, The fact that she did not sign nor issue some of the receipts
to complainant Napoleon Aparicio; P20,000, to complainant for amounts received from complainants has no bearing on
Frennie Majarucon and P35,000, [sic] to complainant Alfred her culpability. The complainants have shown through their
Bryant Berador. 22
respective testimonies and evidence that she was indeed
First and Second Issues: Credibility of Witnesses and Proof involved in the prohibited recruitment. In fact, it was even
Beyond proven that appellant advertised her services in a
Reasonable Doubt in Illegal Recruitment in Large Scale newspaper.
Appellant contends that the prosecution failed to prove Article 38 of the Labor Code renders illegal those
beyond reasonable doubt all the essential elements of the recruitment activities without the necessary license or
crime of illegal recruitment in large scale. Furthermore, she authority from the POEA. Article 38 provides:
Article 38. Illegal Recruitment.—(a) Any recruitment activities, ers; and (3) the act is committed against three or more
including the prohibited practices enumerated under Article 34 of persons, individually or as a group. 23

this Code, to be undertaken by non-licensees or non-holders of All these three elements were proven by the prosecution
authority shall be deemed illegal and punishable under Article 39 beyond reasonable doubt. First, the complaining witnesses
of this Code. The Department of Labor and Employment or any
have satisfactorily established that appellant promised
law enforcement officer may initiate complaints under this
them employment and assured them of placement overseas.
Article.
(b) Illegal Recruitment when committed by a syndicate or in Appellant even had her services advertised in a newspaper,
large scale shall be considered an offense involving economic undoubtedly to reach more people seeking jobs
sabotage and shall be penalized in accordance with Article 39 abroad. Second,appellant did not have any license to recruit
hereof. persons for overseas work. The Licensing Division of the
Illegal recruitment is deemed committed by a syndicate if POEA issued a certification to this effect. Third,appellant
carried out by a group of three (3) or more persons conspiring undertook the recruitment of not less than three workers.
and/or confederating with one another in carrying out any The complainants herein were recruited individually on
unlawful or illegal transaction, enterprise or scheme defined different occasions. The law applies whether the workers
under the first paragraph hereof. Illegal recruitment is deemed were recruited individually or as a group.
committed in large scale if committed against three (3) or more
It is not material that complainants Mary Jane Aquino
persons individually or as a group, x x x.
Villanueva and Wilfredo Tubale were not presented in court
Article 39 of the Labor Code, in turn, provides:
to substantiate their claims against appellant. The law
Article 38. Illegal Recruitment.—(a) The penalty of life
imprisonment and a fine of One Hundred Thousand Pesos applies if appellant committed the illegal act against at least
(P100,000) shall be imposed if illegal recruitment constitutes three persons, individually or as a group. In the case at bar,
economic sabotage as defined herein; x x x. the prosecution proved beyond reasonable doubt that at
The elements of illegal recruitment in large scale are: (1) the least three persons were recruited by appellant: Ariston B.
person undertakes any recruitment activity defined under Villanueva, Alfred Bryant Berador and Frennie Majarucon.
Article 13, paragraph (b), or any prohibited practice With respect to the credibility of these witnesses, it is
enumerated under Article 34 of the Labor Code; (2) said settled that where the issue is on credibility, the findings of
person does not have a license or authority to engage in the the trial court will generally not be disturbed. The trial court
recruitment and placement of work- has the advantage of hearing the witnesses and observing
426 their conduct during the trial, circumstances that carry
426 SUPREME COURT REPORTS great weight in appreciating credibility. The trial court is
24

ANNOTATED thus in a better position to settle such an issue.


People vs. Olermo
Third Issue: Jurisdiction or Venue Furthermore, based on the prosecution’s evidence, the Court
Appellant argues that she cannot be convicted of illegal is sufficiently convinced that at least one element of the
recruitment in large scale because the alleged prohibited crime of illegal recruitment in large scale took place in
acts against complainants were committed beyond the Valenzuela. Where some acts material and essential to the
jurisdiction of the Regional Trial Court of Valenzuela. She crime and requisite to its consummation occur in one
points out that in complainant Villanueva’s affidavit, he province or city and some in another, the court of either
stated that he first met appellant in province or city has jurisdiction to try the case, it being
understood that the court first taking cognizance of the case
_______________
will exclude the others. 27

People v. Dulay, 348 SCRA 239, 248 (2000).


23
Fourth Issue: Right to Competent Counsel
Ibasco v. Court of Appeals, 261 SCRA 449 (1996).
24 Appellant, next maintains that the court a quogravely erred
427 in disregarding her right to a competent and independent
VOL. 406, JULY 17, 2003 427 counsel. Appellant notes that during the presentation of the
People vs. Olermo prosecution’s first witness on August 11, 1993, appellant
her residence in Quezon City. However, during complainant was represented by Atty. Hortensio Domingo, who was not
Villanueva’s testimony in court, he stated that he first met her retained counsel for the case. During the hearing, Atty.
appellant in her office in Valenzuela. Domingo manifested that appellant herself requested him to
The Rules of Court provide that in all criminal represent her in that day’s hearing since her counsel, Atty.
prosecutions, the action shall be instituted and tried in the Yuseco, was still in Cagayan. During the second, third,
court of the municipality or province wherein the offense fourth and fifth hearings, appellant was represented by
was committed or any of the essential ingredients thereof another counsel, a de oficio one, a certain Atty. Ricardo
took place. In the case at bar, the prosecution proved that
25 Perez,
the element of offering, promising, and advertising overseas
_______________
employment to the complainants took place in appellant’s
office in Valenzuela. Furthermore, it is elementary that 25 Rules of Criminal Procedure, Rule 110, Sec. 15 (a).
jurisdiction in criminal cases is determined by the 26 People v. Bayeng, G.R. No. 132064, September 7, 2001, 364 SCRA 667.
allegations in the information. In this case, the information
26
27 People v. Gorospe, 157 SCRA 154 (1988).

428
filed against appellant for illegal recruitment in large scale
clearly placed the locus criminis in Valenzuela. As stated 428 SUPREME COURT REPORTS
earlier, it was in Valenzuela where the complainants were ANNOTATED
offered or promised overseas employment by appellant. People vs. Olermo
again because counsel for appellant was not around. “That sometime in the month of February 1993 or thereabouts in
Because of these instances, appellant claims that she was Valenzuela, Metro Manila and within the jurisdiction of this
deprived of her right to competent counsel because the Honorable Court, the above-named accused, defrauded and
lawyers who represented her in the abovementioned deceived one NAPOLEON APARICIO y CLEMENTE in the
following manner to wit: said accused by means of false
hearings were not familiar with her case and, hence, were
manifestations and fraudulent representation made to the said
not able adequately to protect her interests.
complainant to the effect that she has the capacity and power to
Article III, Section 12, paragraph (1) of the Constitution recruit and employ complainant abroad and facilitate the
provides: necessary amount to meet the requirements thereof, knowing said
“Any person under investigation for the commission of an offense manifestations and representation to be false and fraudulent and
shall have the right x x x to have competent and independent made only to induce said complainant to give, as in fact, the latter
counsel preferably of his own choice, x x x.” did give and deliver to said
The right to counsel is intended to preclude the slightest
coercion as would lead the appellant to admit something _______________
false. Moreover, the words “preferably of his own choice” do
28
28 People v. Enanoria, 209 SCRA 577 (1992).
not mean that the choice of a lawyer by appellant is 429
exclusive as to preclude other equally competent and VOL. 406, JULY 17, 2003 429
independent attorneys from handling the defense. If this People vs. Olermo
were so, the tempo of justice would be solely within the appellant cash money amounting to P40,00, but said accused,
control of appellant who could choose to impede the judicial once in possession of the same, with intent to defraud and deceive
process by simply selecting a lawyer who, for one reason or the herein complainant, did then and there wilfully, unlawfully
another, is not available to defend her. and feloniously mis-apply, misappropriate and convert [the same]
Fifth and Sixth Issues: Proof Beyond Reasonable Doubt in to her own personal use and benefit, [and] despite demands made
the upon her to return the said amount of P40,000, said accused failed
Charges of Estafa, and the Order of Payment and refused and still fails and refuses to do so, to the damage and
Five separate informations were filed against appellant prejudice of the complainant in the aforementioned amount of
charging her of violating subdivision 2(a) of Article 315 of P40,000.
Contrary to Law.”
the Revised Penal Code. Except for the names of the
29

Except in Criminal Case No. 2862-V-93, the prosecution was


offended parties, the dates of the commission of the crime,
able to prove beyond reasonable doubt appellant’s guilt in
and the amounts involved, all informations were similarly
the cases of estafa.
worded:
Subdivision 2(a) of Article 315 of the Revised Penal Code Rollo, p. 22.
29

430
lists ways by which estafamay be committed:
2. By means of any of the following pretenses or fraudulent acts 430 SUPREME COURT REPORTS
executed prior to or simultaneously with the commission of the ANNOTATED
fraud: People vs. Olermo
(a) By using fictitious name, or falsely pretending to possess power, personally and by way of the advertisement in the
influence, qualifications, property, credit, agency, business or imaginary
newspaper, that she can provide complainants with work
transactions; or by means of other similar deceits.
abroad. Hence, relying on her representations, complainants
There are three ways of committing estafaunder this
parted with their money and delivered the same to
provision: (1) by using a fictitious name; (2) by falsely
appellant. The truth, however, was that appellant never had
pretending to possess power, influence, qualifications,
the license from the POEA to recruit persons for overseas
property, credit, agency, business or imaginary
employment. Complainants were never given any
transactions; and (3) by means of other similar deceits.
employment abroad and thus they suffered damage by
Under this class of estafa, the element of deceit is
reason of appellant’s illegal acts.
indispensable. Such deceit consists of the false statement or
We note, however, that in Criminal Case No. 2863-V-93,
fraudulent representation of the appellant, which was made
the trial court only ordered appellant to pay complainant
prior to, or at least simultaneously with, the delivery of the
Ariston B. Villanueva a total amount of P35,000 in actual
thing by the complainant, it being essential that such false
damages. The fundamental principle of the law on damages
statement or fraudulent representation constitutes the very
is that one injured by a breach of contract or by a wrongful
cause or the only motive that induces the complainant to
or negligent act or omission shall have a fair and just
part with the thing of value. If there is no prior or
compensation, commensurate with the loss sustained as a
simultaneous false statement or fraudulent representation,
consequence of the defendant’s acts. Actual damages are
any subsequent act of appellant, however fraudulent and
such compensation or damages for an injury that will put
suspicious it may appear, cannot serve as a basis for
the injured party in the position in which he had been before
prosecution for this class of estafa.
he was injured. These pertain to such injuries or losses that
The Solicitor General, correctly states in the appellee’s
are actually sustained and susceptible of measurement. To
30

brief, that all the elements of the abovementioned crime


justify an award of actual damages, there must be
have been established beyond reasonable doubt. Appellant
competent proof of the actual amount of loss. Credence can
represented herself,
be given only to claims that are duly supported by
_______________ receipts. In this case, it was duly proven by the receipts
31

presented by complainant Villanueva and his testimony


during trial that he handed appellant a total amount of Hence, applying the Indeterminate Sentence Law, the
P70,000 and only got back P19,000. Hence, correction of the accused in Criminal Case No. 2863-V-93 should be
trial court’s award is called for. Appellant should be ordered sentenced to a penalty of FOUR (4) YEARS and TWO (2)
to pay complainant Ariston B. Villanueva the total amount MONTHS of prision correccional as minimum to TEN (10)
of P51,000 in actual damages in Criminal Case No. 2863-V- YEARS of prision mayor as maximum.
93. With respect to Criminal Case No. 2862-V-93, the
Correction of the trial court’s penalty imposed upon prosecution failed to fulfill its duty to produce evidence
appellant in Criminal Case No. 2863-V-93 is therefore showing appellant’s guilt beyond reasonable doubt of the
likewise called for. Article 315 of the Revised Penal Code charges of estafa committed against Mary Jane Aquino-
provides: Villanueva. Absolute certainty of guilt is not demanded by
Article 38. Swindling (estafa).—Any person who shall defraud the law to convict of any criminal charge but moral certainty
another by any of the means mentioned hereinbelow shall be is required, and this certainty is required as to every
punished by: proposition of proof requisite to constitute the offense. In
32

1st. The penalty of prision correccional in its maximum period the said criminal case for estafa, no proof whatsoever was
to prision mayor in its minimum period, if the amount of the fraud
adduced by the prosecution. The offended party, Mary Jane
is over P12,000 but does not exceed P22,000; and if such amount
Aquino-Villanueva, was not even asked to testify in open
exceeds the latter sum, the penalty provided in this paragraph
shall be imposed in its court.
WHEREFORE, judgment is hereby rendered as follows:
_______________
1. I.The judgment of the trial court in Criminal Case No.
Ong v. Court of Appeals, 301 SCRA 387 (1999).
2860-V-93 finding appellant Marlene Olermo a.k.a.
30

31 People v. Guillermo, 302 SCRA 257 (1999).

431 Marlene Tolentino guilty of Illegal Recruitment in


VOL. 406, JULY 17, 2003 431 Large Scale and sentencing her to life imprisonment,
People vs. Olermo as well as to pay a fine of One Hundred Thousand
maximum period, adding one year for each additional P10,000; Pesos (P100,000) is AFFIRMED.
but the total penalty which may be imposed shall not exceed 2. II.The judgments in Criminal Cases Nos. 2861-V-93,
twenty years. In such cases, and in connection with the accessory 2864-V-93 and 2865-V-93, finding appellant guilty
penalties which may be imposed and for the purpose of the other beyond reasonable doubt of four separate offenses
provisions of this Code, the penalty shall be termed prision of estafa are AFFIRMED in toto.
mayor or reclusion temporal, as the case may be; x x x. 3. III.The judgment in Criminal Case No. 2863-V-93
finding appellant guilty beyond reasonable doubt
of estafa is MODIFIED, and appellant is hereby Notes.—Recruitment of persons for overseas
sentenced to FOUR (4) YEARS and TWO (2) employment without the necessary recruiting permit or
MONTHS of prision correccional as minimum to authority from the POEA constitutes illegal recruitment and
TEN (10) YEARS of prision mayor as maximum and where some other crimes or felonies are committed in the
appellant is further ordered to pay complainant process, conviction under the Labor Code does not preclude
Ariston the punishment under other statutes. (People vs.
Calonzo, 262 SCRA 534[1996])
_______________ The acts of the accused consisting of his promise of
employment to certain persons and of transporting them
People v. Gabilan, 115 SCRA 1 (1982).
32

432 abroad fall squarely within the ambit of recruitment and


432 SUPREME COURT REPORTS placement as defined by law. (People vs. Ganaden, 299
ANNOTATED SCRA 433 [1998])
People vs. Olermo
——o0o——
1. B. Villanueva the amount of P51,000, without
subsidiary imprisonment in case of insolvency, plus
costs of suit.
2. IV.The judgment in Criminal Case No. 2862-V-93 is
REVERSED and appellant is ACQUITTED from the
charge of estafa.

Costs de oficio.
SO ORDERED.
Davide, Jr. (C.J., Chairman), Vitug, Ynares-
Santiago and Carpio, JJ., concur.
Judgment in Criminal Case No. 2860-V-93 affirmed;
Judgments in Criminal Cases Nos. 2861-V-93, 2864-V-93
and 2865-V-93 affirmed in toto; Judgment in Criminal Case
No. 2863-V-93 modified, and judgment in Criminal Case No.
2862-V-93 reversed, accused-appellant acquitted.