If the sun has risen on him, Ex. 22:2
In Exodus 22:1-2 we read,
אִם־בַּמַּחְתֶּרֶת יִמָּצֵא הַגַּנָּב וְהֻכָּה וָמֵת אֵין לוֹ דָּמִים׃
: אִם־זָרְחָה הַשֶּׁמֶשׁ עָלָיו דָּמִים לוֹ שַׁלֵּם יְשַׁלֵּם אִם־אֵין לוֹ וְנִמְכַּר בִּגְנֵבָתוֹ׃
“If the thief is seized while tunneling, and he is beaten to death, there is no bloodguilt in his case.
If the sun has risen on him, there is bloodguilt in that case. — He must make restitution; if he lacks the means, he shall be sold for his theft.”
Hayyim ben Yosef Tawil, in Leshoneinu 69, 1-2, claims that the meaning of the phrase “אִם־זָרְחָה הַשֶּׁמֶשׁ עָלָיו” (“If the sun has risen on him”) should be understood differently than the way in which it is interpreted by many modern scholars and some Medieval Jewish commentators, and its meaning is actually closer to that of R. Ishmael in the Mekhilta (Mishpatim, 13, p. 293; Lauterbach trans., vol. III, p. 102). Many modern scholars interpert the phrase as referring to the time of day. A thief who comes in the night not only has the intention of stealing, rather the killing of the homeowner is also an option. Therefore, if the homeowner kills the thief, they are exempt from any penalty. On the other hand, a thief who attempts to break into a house during the day, has no intention of killing the homeowner, therefore if the homeowner kills the thief, there is bloodguilt. Tawil claims that on the basis of Cuneiform and Ugaritic texts, we should understand the meaning of “אִם־זָרְחָה הַשֶּׁמֶשׁ עָלָיו” (“If the sun has risen on him”) to be, that if it is as clear as the sun that the homeowner is guilty, then there is a penalty.
In the subsequent volume of Leshoneinu 69, 3-4, David Henshke takes issue with Tawil’s claims. According to Henshke, Tawil’s proposed understanding should be rejected for a number of reasons. One is that the parallels sources which Tawil brings are very interesting, but in the opinion of Henshke, the interpretation that they would lead us to is unreasonable, that the thief has pure and just intentions. In addition,R. Ishmael’s opinion in the Mekhilta, is specifically brought as an exception to his usual method of interpreting the Biblical text literature in its plain meaning, so one cannot say that according to R. Ishmael this is the simple meaning of the verse. Henshke proposes to read the Biblical text as describing one incident, but two different stages of that same incident. If the thief is killed while they are still literally underground, one has no bloodguilt, but if they are killed after they have come above ground, into the sun, then there is bloodguilt. Henshke points out that this is the interpreation of Yosef Bechor Shor. From all of the people that I have read on these verses, I am not entirely satisfied with the explanations given as to why there is a distinction between the “tunneler”, and one who comes during the daytime. I guess that it why people keep writing about them.