WHOM IT WAS INSUFFICIENT TO KILL, BUT CAUGHT A CHILD,1 WHOM IT WAS ENOUGH TO KILL, AND HE DIED, HE IS NOT LIABLE. IF HE STRUCK AT A CHILD WITH SUFFICIENT FORCE TO KILL HIM, BUT IT CAUGHT AN ADULT, FOR WHOM IT WAS INSUFFICIENT, AND YET HE DIED, HE IS NOT LIABLE. BUT IF HE INTENDED TO STRIKE HIS LOINS WITH SUFFICIENT FORCE TO KILL, BUT CAUGHT THE HEART INSTEAD, HE IS LIABLE. IF HE AIMED A BLOW AT AN ADULT HARD ENOUGH TO KILL, BUT STRUCK A CHILD INSTEAD, AND HE DIED, HE IS LIABLE.R. SIMEON SAID: EVEN IF HE INTENDED KILLING ONE BUT KILLED ANOTHER, HE IS NOT LIABLE.
GEMARA. To which clause does R. Simeon refer? Shall we say to the last? In that case, the Mishnah should state, R. Simeon declares him not liable.2 But he refers to the first clause: IF HE INTENDED KILLING AN ANIMAL, BUT SLEW A MAN, OR A HEATHEN AND HE SLEW AN ISRAELITE, OR A PREMATURELY BORN AND HE SLEW A VIABLE CHILD, HE IS NOT LIABLE. This implies, that if he intended killing one [Israelite] and killed another, he is liable. [Thereupon] R. SIMEON SAID: EVEN IF HE INTENDED KILLING ONE BUT KILLED ANOTHER, HE IS NOT LIABLE.
Now, it is obvious that if Reuben and Simeon were standing, and the murderer said, 'I intended killing Reuben, not Simeon [whom he did actually kill] — that is the case wherein they differ. But what if he said, 'I intended killing any of then,';3 or [again], if he thought that this victim was Reuben, but then found him to be Simeon? — Come and hear! For it has been taught: R. Simeon said: [He is not liable] unless he declares, 'My intention was to kill so and so' [whom he did kill].4
What is R. Simeon's reason? — The Writ saith, [But if any man
hate his neighbour,] and lie in wait for him, and rise up against him:5 teaching that his intention must be against him. But the Rabbis?6 — The disciples of R. Jannai said: This excludes the case of one who threw a stone into the midst of a company [of Israelites and heathens]. How is this? Shall we say that the company consisted of nine heathens and one Israelite? Then his non-liability can be inferred from the fact that the majority were heathens. And even if half and half, when there is a doubt in a capital charge, a lenient attitude must be taken!7 — The verse is necessary only if there were nine Jews and one heathen, so that the heathen [though in a minority] is 'settled' there, and every 'settled' [minority] is as half and half.8
All is well according to the Rabbis, who maintain that if he intended killing one man and killed another, he is liable. For it is written, If men strive, and hurt a woman with child;9 whereupon R. Eleazar observed: The verse refers to attempted murder,10 because It is written, And if any mischief follow, then thou shalt give life for life.11 But how does R. Simeon interpret, 'thou shalt give life for life'?12 — It refers to monetary compensation, in harmony with Rabbi's [interpretation]. For it has been taught: Rabbi said: Then thou shalt give life for life: this refers to monetary compensation.13 You say, monetary compensation: but perhaps this is not so, life being literally meant? 'Giving' is stated below;14 and 'giving' is also stated
Sanhedrin 79babove:1 just as the latter refers to money, so the former too.
Raba said: The following Tanna of the School of Hezekiah differs from both Rabbi and the Rabbis — For a Tanna of the School of Hezekiah taught: And he that killeth a beast [shall pay for it:] and he that killeth a man, [he shall be put to death].2 Just as in the case of one who kills an animal, you draw no distinction between an unwitting or a deliberate act, an intentional or unintentional blow, a downward blow or an upward one,3 not acquitting him thereof, but imposing monetary liability; so in the case of killing a man,4 you must draw no distinction between an unwitting or a deliberate act, an intentional or unintentional blow, a downward or an upward thrust, not imposing a monetary liability. but acquitting him thereof.5 Now, what is meant 'unintentional'? Shall we say, entirely unintentional? But then it is identical with 'unwitting'. Hence it obviously means not intending to slay this one, but another: and for such a case it is taught, 'not imposing monetary liability', but acquitting him thereof'. But if he is liable to death, it is surely unnecessary to teach that he is not liable to make compensation?6 Hence it follows that he is liable neither to execution nor to make compensation.7
MISHNAH. IF A MURDERER BECAME MIXED UP WITH OTHERS, THEY ARE ALL EXEMPTED [FROM THE PENALTY]. R. JUDAH SAID: THEY ARE PLACED IN A CELL.8 IF A NUMBER OF CONDEMNED PERSONS DIFFERING IN THEIR DEATH SENTENCES BECAME MIXED UP WITH ONE ANOTHER, THEY ARE EXECUTED BY THE MOST LENIENT [DEATH]. IF CRIMINALS CONDEMNED TO STONING [BECAME MIXED UP] WITH OTHERS CONDEMNED TO BURNING, — R. SIMEON SAID: THEY ARE STONED, BECAUSE BURNING IS SEVERER; BUT THE SAGES SAY THEY ARE BURNED, BECAUSE STONING IS MORE SEVERE. R. SIMEON SAID TO THEM: WERE NOT BURNING SEVERER, IT WOULD NOT BE DECREED FOR A PRIEST'S ADULTEROUS DAUGHTER. THEY REPLIED: WERE NOT STONING MORE SEVERE, IT WOULD NOT BE THE PENALTY OF A BLASPHEMER AND AN IDOLATER. IF MEN CONDEMNED TO DECAPITATION BECAME MIXED UP WITH OTHERS CONDEMNED TO STRANGLING, — R. SIMEON SAID: THEY ARE [ALL] DECAPITATED; THE SAGES SAY: THEY ARE STRANGLED.
GEMARA. Who are meant by 'others'?9 Shall we say, other innocent men: is it not obvious?10 Moreover, could R. Judah say in such a case that 'they are placed in a cell'? (Mnemonic Besh rak)11 — R. Abbahu said in Samuel's name: The Mishnah treats of an unsentenced murderer who became mixed up with other murderers already sentenced, the Rabbis holding that no man can be condemned save12 in his presence; therefore they are all freed;13 while R. Judah maintains that they cannot all be exempted, since they are murderers: therefore they are placed in a cell.
Resh Lakish said: If this happened to human beings, all agree that they are exempt. But here the reference is to an ox [that had gored] but was as yet uncondemned, which was mixed up with other oxen already condemned. The Rabbis maintain: As the death penalty of its owner, so is that of the ox; therefore an ox [too] can be sentenced only in its presence, hence they are all exempt. But R. Judah rules that they are placed in a cell.14 Raba demurred:
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