(1) If the thief is seized while tunneling*tunneling I.e., under a wall for housebreaking. and beaten to death, there is no bloodguilt in that case.(2) If the sun had already risen, there is bloodguilt in that case.—[The thief] must make restitution, and if lacking the means, shall be sold for the theft.

GEMARA:Rava says: What is the reason for this halakha concerning a burglar who breaks into a house? He explains: There is a presumption that a person does not restrain himself when faced with losing his money, and therefore this burglar must have said to himself: If I go in and the owner sees me, he will rise against me and not allow me to steal from him, and if he rises against me, I will kill him. And the Torah stated a principle: If someone comes to kill you, rise and kill him first.

§ Apropos a burglar who breaks into a house, the Sages taught in a baraita: The verses state: “If a burglar is found breaking in, and is smitten and dies, there shall not be blood shed on his account. If the sun is risen upon him, there shall be blood shed on his account” (Exodus 22:1–2). A question may be raised: But did the sun rise only upon him? Rather, these words must be understood in a metaphoric sense: If the matter is as clear to you as the sun that the burglar is not coming to you in peace, but rather his intention is to kill you, arise and kill him first. But if you are not sure about his intentions, do not kill him.It is taught in anotherbaraita: The verse states: “If the sun is risen upon him, there shall be blood shed on his account.” A question may be raised: But did the sun rise only upon him? Rather, these words must be understood as follows: If the matter is as clear to you as the sun that the burglar is coming to you in peace, do not kill him. But if you are not sure about his intentions, arise and kill him. The Gemara notes a difficulty: The halakha in the undetermined case as stated in the first baraitacontradicts the halakha in the undetermined case as stated in the second baraita. The first baraita indicates that if the homeowner is unsure about the burglar’s intentions, he is prohibited from killing the burglar, whereas the second baraita indicates that in such a case, he is permitted to kill the burglar.The Gemara answers: This is not difficult.

Here, where the baraita teaches that if one is unsure about the burglar’s intentions it is prohibited for him to kill him, it is referring to a father who comes to rob his son. A father has great compassion for his son, and therefore it may be presumed that he will not kill his son if he resists. Accordingly, the son is prohibited from killing his father unless he knows for certain that his father has the intention of killing him. There, where the baraita teaches that if one is unsure about the burglar’s intentions it is permitted for him to kill him, it is referring to a son who comes to rob his father. Since a son has less compassion for his father, it may be presumed that he would be ready to kill his father if he resists. Therefore, the father is permitted to kill his son unless he knows for certain that his son would never kill him.Rav says: With regard to anyone who breaks into my house, I would kill him, as I would presume that he is ready to kill me, except for Rav Ḥanina bar Sheila, whom I would not kill. The Gemara asks: What is the reason that Rav excludes Rabbi Ḥanina bar Sheila? If we say that Rav trusts him because he is a righteous person, this is difficult, as the case is one where he broke into his house, which indicates that he is not a righteous person. Rather, it is because he would say: I am certain that he would have mercy upon me just like a father would have mercy on a son.

(1) אם במחתרת means when he was breaking in into the house (i. e. in the very act of forcing an entry, but at no other moment).(2) אין לו דמים THERE SHALL NO GUILT OF BLOOD BE INCURRED FOR HIM — This is not regarded as a murder; it is as though he (the thief) has been dead from the beginning of his criminal act (אין לו דמים is taken to mean: he, the thief, had no blood — no vitality). Here the Torah teaches you the rule: “If one comes with the intention of killing you, be quick and kill him”. — And this burglar actually came with the intention of killing you, for he knew full well that no one can hold himself in check, looking on whilst people are stealing his property before his eyes and doing nothing. He (the thief) therefore obviously came with this purpose in view — that in case the owner of the property would resist him, he would kill him (Sanhedrin 72a).

(1) אם זרחה השמש עליו IF THE SUN SHONE UPON HIM — This is only a metaphorical expression signifying: if the fact is clear to you that he is peaceably disposed towards you. The simile is: just as the sun brings peace (happiness) to the world so if it is evident to you that he did not come with the intention of killing, even if the owner of the property would resist him (Sanhedrin 72a), as, for instance, when a father breaks in to steal the money of his son, for it is certain that the father cherishes feelings of pity for his child and the matter of taking human life is not in his thoughts at all, — then(2) דמים לו, then he is to be regarded as a living man (cf. Rashi’s explanation of אין לו דמים v. 1.), and it is murder if the householder kills him.(3) שלם ישלם means the thief shall only restore the money he has stolen but is not subject to the death penalty. Onkelos who renders אם זרחה השמש עליו by, “If the eye of witnesses fall upon him” chose a different way of explaining the verse, namely, that if witnesses surprise him before the householder appears, and when the householder is going towards him they warn him not to kill him (the thief), then דמים לו, he is punishable if he kills him; for since there are people watching him the thief surely has no thought of taking human life and will not kill the owner of the property.