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, a 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. The offender is a 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 the incident, he is not armed with a 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 of the papers and other effects mentioned in Art. 128 must be found in the 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.
