454 Phil. 147
AZCUNA, J.:
That during the period of February to June 1993, in Valenzuela, Metro Manila and within the jurisdiction of this Honorable Court, the above-named accused, representing herself to have the capacity to contract, enlist and recruit workers for employment abroad, did then and there wil[l]fully and unlawfully, for a fee, recruit and promise employment/job placement in a large scale to ARISTON B. VILLANUEVA, MARY JANE AQUINO-VILLANUEVA, ALFRED BRYANT BERADOR, FRENNIE MAJARUCON and WILFREDO TUBALE, without said accused having secured first the necessary license or authority to engage in recruitment activity from the Philippine Overseas Employment Administration (POEA), in violation of the aforementioned provision of Law.The five informations for estafa, on the other hand, docketed as Criminal Cases Nos. 2861-V-93, 2862-V-93, 2863-V-93, 2864-V-93, and 2865-V-93, alleged that the appellant violated paragraph 2(a), Article 315 of the Revised Penal Code, thus:
Contrary to Law.[1]
That sometime in the month of February 1993 or thereabouts in Valenzuela, Metro Manila and within the jurisdiction of this Honorable Court, the above-named accused, defrauded and deceived one NAPOLEON APARICIO y CLEMENTE in the following manner to wit: said accused, by means of false manifestations and fraudulent representation made to the said complainant to the effect that she has the capacity and power to recruit and employ complainant abroad and facilitate the necessary amount to meet the requirements thereof, knowing said manifestations and representation to be false and fraudulent and made only to induce said complainant to give, as in fact, the latter did give and deliver to said accused cash money amounting to P40,000, but said accused, once in possession of the same, with intent to defraud 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 P40,000, said accused failed and refused and still fails and refuses to do so, to the damage and prejudice of the complainant in the aforementioned amount of P40,000.In Criminal Case No. 2862-V-93:
Contrary to Law.[2]
That sometime in May 1993 or thereabouts in Valenzuela, Metro Manila and within the jurisdiction of this Honorable Court, the above-named accused, defrauded and deceived one MARY JANE AQUINO-VILLANUEVA in the following manner to wit: said accused, by means of false manifestations and fraudulent representation made to the said complainant to the effect that she has the capacity and power to recruit and employ complainant abroad and facilitate the necessary amount to meet the requirements thereof knowing said manifestations and representation to be false and fraudulent and made only to induce said complainant to give, as in fact, the latter did give and deliver to said accused cash money amounting to P35,000, but said accused, once in possession of the same, with intent to defraud 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 P35,000, said accused failed and refused and still fails and refuses to do so, to the damage and prejudice of the complainant in the aforementioned amount of P35,000.In Criminal Case No. 2863-V-93:
Contrary to Law.[3]
That sometime in May and June 1993 or thereabouts in Valenzuela, Metro Manila and within the jurisdiction of this Honorable Court, the above-named accused, defrauded and deceived one ARISTON B. VILLANUEVA in the following manner to wit: said accused, by means of false manifestations and fraudulent representation made to the said complainant to the effect that she has the capacity and power to recruit and employ complainant abroad and facilitate the necessary amount to meet the requirement thereof, knowing said manifestations and representation to be false and fraudulent and made only to induce said complainant to give, as in fact, the latter did give and deliver to said accused cash money amounting to P35,000, but said accused, once in possession of the same, with the intent to defraud 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 P35,000, said accused failed and refused and still fails and refuses to do so, to the damage and prejudice of the complainant in the aforementioned amount of P35,000.In Criminal Case No. 2864-V-93:
Contrary to Law.[4]
That sometime in the month of March 1993 or thereabouts in Valenzuela, Metro Manila and within the jurisdiction of this Honorable Court, the above-named accused, defrauded and deceived one FRENNIE MAJARUCON y BACO in the following manner to wit: said accused, by means of false manifestations and fraudulent representation made to the said complainant to the effect that she has the capacity and power to recruit and employ complainant abroad and facilitate the necessary amount to meet the requirements thereof, knowing said manifestations and representation to be false and fraudulent and made only to induce said complainant to give, as in fact, the latter did give and deliver to said accused, cash money amounting to P20,000, but said accused, once in possession of the same, with intent to defraud 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, said accused failed and refused and still fails and refuses to do so, to the damage and prejudice of the complainant in the aforementioned amount of P20,000.In Criminal Case No. 2865-V-93:
Contrary to Law.[5]
That sometime in the month of February 1993 or thereabouts in Valenzuela, Metro Manila and within the jurisdiction of this Honorable Court, the above-named accused, defrauded and deceived one ALFRED BRYANT BERADOR y OCHOA in the following manner to wit: said accused, by means of false manifestations and fraudulent representation made to the said complainant to the effect that she has the capacity and power to recruit and employ complainant abroad and facilitate the necessary amount to meet the requirements thereof, knowing said manifestations and representation to be false and fraudulent and made only to induce said complainant to give, as in fact, the latter did give and deliver to said accused cash money amounting to P25,350, but said accused, once in possession of the same, with intent to defraud 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 P25,350, said accused failed and refused and still fails and refuses to do so, to the damage and prejudice of the complainant in the aforementioned amount of P25,350.Complainant Napoleon C. Aparicio,[7] jobless, testified that he came to know appellant through his sister in February 1993. He allegedly talked with appellant Marlene Olermo a.k.a. Marlene Tolentino regarding the latter's offer to give him a job overseas. She informed complainant Aparicio that he needed to pay her P40,000 for a work permit and a plane ticket to Saipan where he is allegedly to be employed. Aparicio agreed to pay her the said amount. He made his first payment of P20,000 on March 30, 1993. Appellant allegedly called him up and instructed him to deliver the money, which he did, to a certain Jennifer Balduesa at Danding Building, Municipal Site, Valenzuela, Metro Manila where appellant's office, Jirk Manpower Services, is located. Complainant Aparicio made his second payment on April 21, 1993. Again, he delivered the amount of P20,000 to Jennifer Balduesa in appellant's office in Valenzuela upon the instructions of appellant. He was issued a cash voucher for each payment he made.[8] Appellant promised him that he would leave for Saipan on May 3, 1993 and she even showed him his plane ticket. However, he was not able to leave on said date. The date of his departure was moved several times by appellant until he began to suspect something was amiss. Hence, he reported the matter to the National Bureau of Investigation (NBI). Appellant thereafter pretended to refund the amounts he paid by issuing him a check, which, however, bounced when it was presented for payment.[9] He later learned that appellant was not a duly-licensed recruiter.
Contrary to Law.[6]
WHEREFORE, judgment is hereby rendered as follows:Appeal followed and the following are assigned as errors:
(1) In Crim. Case No. 2860-V-93, the Court finds accused Marlene Olermo @ Marlene Tolentino guilty beyond reasonable doubt and as principal of the crime of Illegal Recruitment in large scale as defined and penalized under Article 38 in relation to Article 39 (a) of the Labor Code, as amended by P.D. 2018, without any attending mitigating or aggravating circumstance and hereby sentences her to a penalty of life imprisonment and a fine of P100,000, without subsidiary imprisonment in case of insolvency;
(2) In Crim. Case No. 2861-V-93, the Court finds accused Marlene Olermo @ Marlene Tolentino guilty beyond reasonable doubt and as principal of the crime of Estafa as defined and penalized under paragraph 2(a) in relation to the first paragraph of Article 315 of the Revised Penal Code without any attending mitigating or aggravating circumstance and, applying the Indeterminate Sentence Law, hereby sentences her to a penalty of SIX (6) YEARS and TWO (2) MONTHS of prision mayor as minimum to TEN (10) YEARS and ONE (1) DAY of prision mayor as maximum. The accused is further sentenced to pay complaining witness Napoleon Aparicio the amount of P40,000, without subsidiary imprisonment in case of insolvency, plus the costs of suit;
(3) In Crim. Case No. 2862-V-93, the Court finds accused Marlene Olermo @ Marlene Tolentino guilty beyond reasonable doubt and as principal of the crime of Estafa as defined and penalized under paragraph 2(a) in relation to the first paragraph of Article 315 of the Revised Penal Code without any attending mitigating or aggravating circumstances and, applying the Indeterminate Sentence Law, hereby sentences her to a penalty of SIX (6) YEARS and TWO (2) MONTHS of prision mayor as minimum to TEN (10) YEARS and ONE (1) DAY of prision mayor as maximum. The accused is further sentenced to pay complaining witness Mary Jane Aquino-Villanueva the amount of P35,000, without subsidiary imprisonment in case of insolvency, plus the costs of suit;
(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 of Estafa as defined and penalized under paragraph 2(a) in relation to the first paragraph of Article 315 of the Revised Penal Code without any attending mitigating or aggravating circumstances and, applying the Indeterminate Sentence Law, hereby sentences her to a penalty of SIX (6) YEARS and TWO (2) MONTHS of prision mayor as minimum to TEN (10) YEARS and ONE (1) DAY of prision mayor as maximum. The accused is further sentenced to pay complaining witness Ariston B. Villanueva the amount of P35,000, without subsidiary imprisonment in case of insolvency, plus the costs of suit;
(5) In Crim. Case No. 2864-V-93, the Court finds accused Marlene Olermo @ Marlene Tolentino guilty beyond reasonable doubt and as principal of the crime of Estafa as defined and penalized under paragraph 2(a) in relation to the first paragraph of Article 315 of the Revised Penal Code without any attending mitigating or aggravating circumstances and, applying the Indeterminate Sentence Law, hereby sentences her to a penalty of TWO (2) YEARS, FOUR (4) MONTHS and ONE (1) DAY of prision correccional as minimum to SIX (6) YEARS and ONE (1) DAY of prision mayor as 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.
(6) In Crim. Case No. 2865-V-93, the Court finds accused Marlene Olermo @ Marlene Tolentino guilty beyond reasonable doubt and as principal of the crime of Estafa as defined and penalized under paragraph 2(a) in relation to the first paragraph of Article 315 of the Revised Penal Code without any attending mitigating or aggravating circumstance, and, applying the Indeterminate Sentence Law, hereby sentences her to a penalty of FOUR (4) YEARS and TWO (2) MONTHS of prision correccional as minimum to EIGHT (8) YEARS of prision mayor as maximum. The accused is further sentenced to pay complaining witness Alfred Bryant Berador y Ochoa the amount of P25,350, without subsidiary imprisonment in case of insolvency, plus the costs of suit.
SO ORDERED.[21]
The trial court gravely erred in giving full weight and credence to the testimonies of the prosecution witnesses and in not considering the defense interposed by the accused-appellant.II
The court a quo gravely erred in convicting accused-appellant of the crimes charged despite failure of the prosecution to prove her guilt beyond reasonable doubt.III
The court a quo gravely erred in finding the accused-appellant guilty beyond reasonable doubt of the crime of large-scale recruitment despite its lack of jurisdiction.IV
The court a quo gravely erred in disregarding the right of the appellant to have a competent and independent counsel.V
The court a quo gravely erred in finding the accused-appellant guilty beyond reasonable doubt for the crime of estafa.VI
The court a quo gravely erred in ordering the payment of P35,000, to complainant Mary Jane Aquino Villanueva; P35,000, to complainant Napoleon Aparicio; P20,000, to complainant Frennie Majarucon and P35,000, [sic] to complainant Alfred Bryant Berador.[22]
(b) `Recruitment and placement' refer to any act of canvassing, enlisting, contracting, transporting, utilizing, hiring, or procuring workers, and includes referrals, contract services, promising or advertising for employment, locally or abroad, whether for profit or not: Provided, That any person or entity which, in any manner, offers or promises for a fee employment to two or more persons shall be deemed engaged in recruitment and placement.Appellant's acts of promising, offering and assuring employment overseas to complainants fall squarely within the ambit of recruitment and placement as defined above. The fact that she did not sign nor issue some of the receipts for amounts received from complainants has no bearing on her culpability. The complainants have shown through their respective testimonies and evidence that she was indeed involved in the prohibited recruitment. In fact, it was even proven that appellant advertised her services in a newspaper.
Article 38. Illegal Recruitment. --- (a) Any recruitment activities, including the prohibited practices enumerated under Article 34 of this Code, to be undertaken by non-licensees or non-holders of authority shall be deemed illegal and punishable under Article 39 of this Code. The Department of Labor and Employment or any law enforcement officer may initiate complaints under this Article.Article 39 of the Labor Code, in turn, provides:
(b) Illegal Recruitment when committed by a syndicate or in large scale shall be considered an offense involving economic sabotage and shall be penalized in accordance with Article 39 hereof.
Illegal recruitment is deemed committed by a syndicate if carried out by a group of three (3) or more persons conspiring and/or confederating with one another in carrying out any unlawful or illegal transaction, enterprise or scheme defined under the first paragraph hereof. Illegal recruitment is deemed committed in large scale if committed against three (3) or more persons individually or as a group. x x x.
Article 38. Illegal Recruitment. --- (a) The penalty of life imprisonment and a fine of One Hundred Thousand Pesos (P100,000) shall be imposed if illegal recruitment constitutes economic sabotage as defined herein; x x x.The elements of illegal recruitment in large scale are: (1) the person undertakes any recruitment activity defined under Article 13, paragraph (b), or any prohibited practice enumerated under Article 34 of the Labor Code; (2) said person does not have a license or authority to engage in the recruitment and placement of workers; and (3) the act is committed against three or more persons, individually or as a group.[23]
"Any person under investigation for the commission of an offense shall have the right x x x to have competent and independent counsel preferably of his own choice. x x x."The right to counsel is intended to preclude the slightest coercion as would lead the appellant to admit something false.[28] Moreover, the words "preferably of his own choice" do not mean that the choice of a lawyer by appellant is exclusive as to preclude other equally competent and independent attorneys from handling the defense. If this were so, the tempo of justice would be solely within the control of appellant who could choose to impede the judicial process by simply selecting a lawyer who, for one reason or another, is not available to defend her.
That sometime in the month of February 1993 or thereabouts in Valenzuela, Metro Manila and within the jurisdiction of this Honorable Court, the above-named accused, defrauded and deceived one NAPOLEON APARICIO y CLEMENTE in the following manner to wit: said accused by means of false manifestations and fraudulent representation made to the said complainant to the effect that she has the capacity and power to recruit and employ complainant abroad and facilitate the necessary amount to meet the requirements thereof, knowing said manifestations and representation to be false and fraudulent and made only to induce said complainant to give, as in fact, the latter did give and deliver to said appellant cash money amounting to P40,000, but said accused, once in possession of the same, with intent to defraud and deceive the herein complainant, did then and there wilfully, 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 P40,000, said accused failed and refused and still fails and refuses to do so, to the damage and prejudice of the complainant in the aforementioned amount of P40,000.Except in Criminal Case No. 2862-V093, the prosecution was able to prove beyond reasonable doubt appellant's guilt in the cases of estafa.
Contrary to Law.[29]
There are three ways of committing estafa under this provision: (1) by using a fictitious name; (2) by falsely pretending to possess power, influence, qualifications, property, credit, agency, business or imaginary transactions; and (3) by means of other similar deceits. Under this class of estafa, the element of deceit is indispensable. Such deceit consists of the false statement or fraudulent representation of the appellant, which was made prior to, or at least simultaneously with, the delivery of the thing by the complainant, it being essential that such false statement or fraudulent representation constitutes the very cause or the only motive which induces the complainant to part with the thing of value. If there is no prior or simultaneous false statement or fraudulent representation, any subsequent act of appellant, however fraudulent and suspicious it may appear, cannot serve as a basis for prosecution for this class of estafa.(a) By using fictitious name, or falsely pretending to possess power, influence, qualifications, property, credit, agency, business or imaginary transactions; or by means of other similar deceits.
- By means of any of the following pretenses or fraudulent acts executed prior to or simultaneously with the commission of the fraud:
Article 38. Swindling (estafa). ---Any person who shall defraud another by any of the means mentioned hereinbelow shall be punished by:Hence, applying the Indeterminate Sentence Law, the accused in Criminal Case No. 2863-V-93 shall be sentenced to a penalty of four (4) years and two (2) months of prision correccional as minimum to ten (10) years of prision mayor as maximum.
1st. The penalty of prision correccional in its maximum period to prision mayor in its minimum period, if the amount of the fraud is over P12,000 but does not exceed P22,000; and if such amount exceeds the latter sum, the penalty provided in this paragraph shall be imposed in its maximum period, adding one year for each additional P10,000; but the total penalty which may be imposed shall not exceed twenty years. In such cases, and in connection with the accessory penalties which may be imposed and for the purpose of the other provisions of this Code, the penalty shall be termed prision mayor or reclusion temporal, as the case may be; x x x.