Criminal Cases and Procedure,  Criminal Law

VIOLATION OF DOMICILE   (Art. 128 of REVISED PENAL CODE OF THE PHILIPPINES )

Q: What are the modes of committing this crime?
A:
1. First mode: Entering any dwelling against
the will of the owner thereof
Note: In the first mode, lack of consent
would not suffice as the law requires that
the offender’s entry must be over the
owner’s objection, express or implied.
2. Second mode: Searching papers or other
effects found therein without the
previous consent of such owner
Note: In the second mode, mere lack of
consent is sufficient.
3. Third mode: Refusing to leave the
premises after having surreptitiously
entered said dwelling and after having
been required to leave the same
Note: In the third mode, what is punished is
the refusal to leave, the entry having been
made surreptitiously.
Q: What are the common elements?
A:
1. Offender is public officer or employee;
2. He is not authorized by judicial order to
enter the dwelling and/or to make a
search for papers and for other effects.
Q: How is the crime of violation of domicile
committed?
A: Violation of domicile is committed by a public
officer authorized to implement a search warrant or
warrant of arrest but at the time of incident, he is
not armed with warrant.
Q: Suppose the public officer is not authorized to
execute search warrants and warrants of arrests,
what crime can he be liable for?
A: Qualified trespass to dwelling (Art. 280, RPC).
Q: Suppose the punishable acts under Art. 128 are
committed by a private person, what crime did he
commit?
A: Trespass to dwelling.
Q: If a public officer searches a person outside his
dwelling, not armed with a search warrant or a
warrant of arrest, are the provisions of Art. 128
applicable?
A: No, because the papers and other effects
mentioned in Art. 128 must be found in dwelling.
The crime committed is grave coercion, if violence
and intimidation are used (Art. 286), or unjust
vexation, if there is no violence or intimidation (Art.
287).
Q: Are the provisions under Art. 128 applicable if
the occupant of the premises is not the owner?
A: Yes, it would be sufficient if the inhabitant is
lawful occupant using the premises as his dwelling,
although he is not the property owner.
Q: What are the qualifying circumstances under
Art. 128?
A:
1. If committed at night time
2. If any papers or effects not constituting
evidence of a crime are not returned
immediately after the search is made by
the offender.
Q: What is the meaning of against the will of the
owner?
A: It presupposes opposition or prohibition by the
owner, whether express or implied, and not merely
the absence of consent.
Note: If the surreptitious entry had been made
through an opening not intended to that purpose, the
offender would be liable under the first mode since it
is entry over the implied objection of the inhabitant.

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