(dissenting). Respectfully, I dissent.
The majority opinion correctly holds that the case law of this state impliedly recognizes the right of a police officer to use deadly force to prevent the escape of a felon who has committed a crime against property only.
In People v Gonsler, 251 Mich 443; 232 NW 365 (1930), the decedent was attempting to steal a portion of the defendant’s illegal moonshine whiskey when he was shot by the defendant. The Court noted that, according to the decedent’s dying declaration, "The defense of life or limb or of defendant’s habitation was not involved * * *”. Id., 445. *756Likewise, in this Court’s recent opinion in People v Whitty 96 Mich App 403; 292 NW2d 214 (1980), the defendant claimed that he killed the decedent while attempting to arrest him for the earlier robbery of his store.
The right of a police officer to use deadly force to effectuate the arrest of a fleeing felon is probably more persuasive in view of the fact that both of these cases involved the use of deadly force by a person who was not a police officer. Nonetheless, the precise question before us here, whether deadly force should be permitted when the escaping felon has committed only a minor crime against property, was not addressed by either of those cases.
The common-law rule relied upon by the majority opinion was recognized by this Court in Whitty as "developed in an era when the large majority of felonies were punishable by death, so that the killing of a fleeing felon tended only to hasten the ultimate result”. 96 Mich App 403, 415. As early as the late 19th century, this rationale for the common-law rule was questioned in United States v Clark, 31 F 710, 713 (ED Mich, 1887):
"I doubt, however, whether this law would be strictly applicable at the present day. Suppose, for example, a person were arrested for petit larceny, which is a felony at the common law, might an officer under any circumstances be justified in killing him? I think not. The punishment is altogether too disproportioned to the magnitude of the offense.”
In the present case, defendant’s actions violated the statute defining the offense of larceny from a motor vehicle, a felony:
"Any person who shall commit the offense of larceny *757by stealing or unlawfully removing or taking any wheel, tire, radio, heater or clock in or on any motor vehicle, house trailer, trailer or semi-trailer, shall be guilty of a felony, punishable by a fine not to exceed $1,000.00, or by imprisonment in the state prison not more than 5 years.
"Any person who shall enter or break into any motor vehicle, house trailer, trailer or semi-trailer, for the purpose of stealing or unlawfully removing therefrom any goods, chattels or property of the value of not less than $5.00, or who shall break or enter into any motor vehicle, house trailer, trailer or semi-trailer, for the purpose of stealing or unlawfully removing therefrom any goods, chattels or property regardless of the value thereof if in so doing such person breaks, tears, cuts or otherwise damages any part of such motor vehicle, house trailer, trailer or semi-trailer, shall be guilty of a felony, punishable by a fine not to exceed $1,000.00, or by imprisonment in the state prison not more than 5 years.” MCL 500.356a; MSA 28.588(1).
The trivial nature of the great number of crimes covered under this statute shows how unwise it is to rely on the common law in this case. As was noted by a Pennsylvania court in Commonwealth v Chermansky, 430 Pa 170; 242 A2d 237, 240 (1968), in a case analogous to the one before us:
"The common law principle that a killing necessary to prevent the escape of a felon is justifiable developed at a time when the distinction between felony and misdemeanor was very different than it is today. Statutory expansion of the class of felonies has made the common law rule manifestly inadequate for modern law. Hence, the need for a change or limitation in the rule is indicated.” (Footnotes omitted.)
Continuing, the Chermansky court developed the following rule:
"We therefore hold that from this date forward the *758use of deadly force by a private person in order to prevent the escape of one who has committed a felony or has joined or assisted in the commission of a felony is justified only if the felony committed is treason, murder, voluntary manslaughter, mayhem, arson, robbery, common law rape, common law burglary, kidnapping, assault with intent to murder, rape or rob, or a felony which normally causes or threatens death or great bodily harm.” (Footnote omitted.)
This rule reflects a reasoned approach to this problem. Why shouldn’t a person who is attempting to evade arrest after stealing an article worth at least $5 from an automobile be shot by the police? Simply stated, the reason is that the magnitude of the crime does not warrant the use of deadly force. The Pennsylvania courts correctly limit the use of deadly force to those situations where the fleeing felon has committed or threatens a significant act of violence involving great bodily harm.
By not paying sufficient deference to the change that the concept of felony has undergone since the common-law rule permitting use of deadly force against escaping felons was formulated, the majority does not do justice to that rule. That rule was never intended to apply to arrests of persons who have committed minor property crimes. Thus, a rule that was once based upon the common sense of its time is now applied senselessly.
I would reverse and remand for a new trial.