Froilan Benavente, who  was engaged in  the business of sawing timber, employed several laborers in this work and used  to permit some  of them  to pass the night in a part of his house which he called the dining  room, which was separated by a partition from the rest of the house and could be entered through  a door  opened in the dividing wall.   Luciano Barberan was one of the said laborers and, prior to the occasion  of the crime prosecuted in this case, had also  slept in that part  of  the house, but about a week before had gone to his  mother's home in the sitio of Ygan, to sleep there.  It happened that on May 6,  1909, Froilan Benavente  had occasion to absent himself  from his house, and that on the  morning of that day Barberan had been in it.  That night  Benavente's  wife, and one of his daughters who was very young,  remained in the house, accompanied only by a nephew of his, named Celestino Basco, and at the customary  hour  they  retired for the night to the room which was separated, as aforesaid, from  the dining room, and  barred the door  communicating with  the latter, as well as all the windows of the house. At about 1  o'clock that night Basco, hearing a noise, awoke his aunt, saying that he  believed that  there  was  some stranger in the room. By the light which Basco had lit they saw a man  hiding  behind a column  who,  on being held by Benavente's wife,  gave her a push and escaped through the same window  by which he  had entered  and which had  been  left  partly open.   This  window, like  all the others of the room, was in  the outer wall of the house, about 8 varas from the ground.  The defendant, climbing over the fence which inclosed the lower part of the house, raised himself to the window, which  was fastened by a transverse piece of wood.

"It appears that  the  defendant made  use  of  a weapon to open  that window by applying it to  the  ends of both sections, which were joined, and, as the  window bolt was half  worn-out, he was  able to raise  it  and thus opened the window, breaking the bolt; that is to say, between the crack in the wall of the  house  and the edge of the window a mark was seen which  was left by some instrument used to raise the window catch (pp.  23 and 24 of the record)."

The preceding facts were proved.

The only argument offered  by the  defense is that the defendant did not forcibly enter a house  in which he was in the habit of sleeping and considered as his own home.

But the place through which  he entered  was not a proper entrance to the house, and he  did climb up into  the house as any stranger might have done who had  conceived the same purpose as did  the defendant.  Moreover, not because he had been authorized  to occasionally pass  the night in the dining room, was he also authorized stealthily to enter; not the dining room, but the apartment  reserved for the family, the  doors  and windows of which were  all closed that night.

"The fact that the defendant," concludes the trial judge, "entered in  this manner  at a late hour of the night, when all the inmates of that house were asleep, clearly establishes the fact that he entered against the will of the occupants."

The crime committed falls squarely within the provisions of article 491, paragraph 2, Penal Code.   It was perpetrated with violence, this word  being  understood in the sense already established in the reported cases.  (U. S. vs. Clauck, 6 Phil. Rep., 486,  and decisions  of the supreme court  of Spain of April 5, 1890, and February 8,1899.)

Two aggravating circumstances were taken into account by the trial court, to wit, that of the crime  having been executed  at  night, and by scaling a wall.  But  this last circumstance, in the present case, is the specific and essential element of the forcible entry itself, so that it  must not be considered as an additional  circumstance  of  the crime. However,  its omission does not modify the degree of the penalty imposed by the judgment.

Hence,  the  judgment  appealed  from, which sentences Luciano Barberan to four years nine  months  and eleven days of prision  correccional, to the payment of a  fine of 2,500 pesetas,  or, in case of insolvency, to  the equivalent subsidiary imprisonment, to the accessory penalties of article 61, Penal Code, and to pay the costs, is hereby affirmed. The appellant shall  also pay the  costs of  this  instance. So ordered.

Torres, Mapa, Johnson, Carson, and  Moreland, JJ., concur.