Clarification on section 9.42

[cubbyjg]

As i was reading the thread about the man stealing someone rims, i saw a post showing section 9.42. While i feel i have a fairly decent understanding of the law, anytime i have a question of how i am interrpreting it, i like to ask you guys for your input. Back to point, as i was reading the topic i started to wonder, what if this happened during the daytime. Looking at the code it seems to me that i would not be justified in using deadly force. Am i understanding this correctly?

Sec. 9.42. DEADLY FORCE TO PROTECT PROPERTY. A person is justified in using deadly force against another to protect land or tangible, movable property:
(1) if he would be justified in using force against the other under Section 9.41; and
(2) when and to the degree he reasonably believes the deadly force is immediately necessary:
(A) to prevent the other's imminent commission of arson, burglary, robbery, aggravated robbery, theft during the nighttime, or criminal mischief during the nighttime; or
(B) to prevent the other who is fleeing immediately after committing burglary, robbery, aggravated robbery, or theft during the nighttime from escaping with the property; and
(3) he reasonably believes that:
(A) the land or property cannot be protected or recovered by any other means; or
(B) the use of force other than deadly force to protect or recover the land or property would expose the actor or another to a substantial risk of death or serious bodily injury

[dicion]

The answer is: It Depends

If it was simple theft, as in, grabbed the rims and ran, no threats, no weapons, yes, the time of day does matter.
If the homeowner came out, and the guy lifted the tire iron he was using to remove the rims in a threatening manner, then no, it would not matter, as that would make it Robbery.

Theft = Taking stuff without force or threat of force against a person
Robbery = Theft + force or threat of force against a person. Notice, this does not even have to be Lethal force.

If someone comes up to you and punches you in the shoulder, and says 'give me your wallet or the next one hits your face'', you are now justified in using lethal force.
If that same person just came up to you, punched you, and called you a name, and asked what you were going to do about it, you are not justified in using deadly force.

Fun stuff, huh?

[mbw]

I think that you are focusing on the wrong parts of this statue. Read it like this-

Sec. 9.42. DEADLY FORCE TO PROTECT PROPERTY. A person is justified in using deadly force against another to protect land or tangible, movable property:
(1) if he would be justified in using force against the other under Section 9.41; and
(2) when and to the degree he reasonably believes the deadly force is immediately necessary:
(A) to prevent the other's imminent commission of arson, burglary, robbery, aggravated robbery, theft during the nighttime, or criminal mischief during the nighttime; or
(B) to prevent the other who is fleeing immediately after committing burglary, robbery, aggravated robbery, or theft during the nighttime from escaping with the property; and
(3) he reasonably believes that:
(A) the land or property cannot be protected or recovered by any other means; or
(B) the use of force other than deadly force to protect or recover the land or property would expose the actor or another to a substantial risk of death or serious bodily injury

First, is force justified under 9.41? If it meets that criteria then apply 9.42 to the situation.
Under 9.42 (2)A “Theft during the night time” is one of 6 instances when deadly force may be justified. Deadly force may also be justified under any of the other mentioned crimes and they have no reference to time of day.
Also note the “OR” at the end of 9.42 (2)A. That means if 2A does not apply to the situation then perhaps 2B does. The end of 2B has an “And”, that means that not only does 2B have to apply but also what follows 2B must also apply.
That leaves you with 2 choices under 9.42 (3) and there is an “Or” between the two which means that either case could apply.
But dicion has already given the real answer, It depends. But yeah, there are definitely cases where deadly force can be used in the daytime.

[cubbyjg]

Thanks guys. This helps alot.