Babylonian Talmud: Tractate Sanhedrin

Folio 78a

Our Rabbis taught: If ten men smote a man with ten staves, whether simultaneously or successively, and he died, they are exempt. R. Judah b. Bathyra said: If successively, the last is liable, because he struck the actual death blow.³  R. Johanan said: Both derive [their rulings] from the same verse, And he that killeth kol nefesh⁴  [lit., 'all life'] of man shall surely be put to death.⁵  The Rabbis maintain that kol nefesh implies the whole life;⁶   but R. Judah b. Bathyra holds that kol nefesh implies whatever there is of life.⁷

Raba said: Both agree that if he killed a terefah,⁸   he is exempt; if he slew one who was dying through an act of God,⁹  he is liable; their dispute refers only to one who was dying through man's act:¹⁰  the one likens him to a terefah,¹¹  the other to a person dying naturally. Now, he who likens him to a terefah, why does he not liken him to a person dying naturally? — Because no injury has been done to the latter; but an injury has been done to this one. Whilst he who likens him to a person dying naturally, why does he not liken him to a terefah? — A terefah has his vital organs affected,¹²  but this one has not.¹³

Raba said: If one kills a terefah, he is exempt; whilst if a terefah committed murder: if in the presence of a Beth din, he is liable; otherwise he is exempt. Why is he liable if in the presence of a Beth din? — Because it is written, so shalt thou put away the evil from the midst of thee.¹⁵  But if not, he is exempt, because the law of confuted testimony is inapplicable, and testimony which cannot be so confuted is inadmissible.¹⁶

Raba also said: He who commits pederasty with a terefah is liable to punishment; but if a terefah committed it, if in the presence of a Beth din, he is liable; otherwise he is not. 'If in the presence of a Beth din, he is liable', because it is written, So shalt thou put the evil away from the midst of thee. 'Otherwise he is not', because the law of confuted testimony is inapplicable. Why state this second [law]; is it not identical with the first? — It is necessary to teach concerning one who commits pederasty with a terefah: for I might think that he is as one who abuses a dead person, and hence exempt. Therefore he teaches that [punishment is generally imposed] because of the [forbidden] pleasure derived, and in this case too pleasure is derived.¹⁷

Raba also said: if witnesses testified [to murder] against a terefah and were then confuted,¹⁸  they are not executed.¹⁹  But if witnesses, themselves terefah, were confuted, they are executed. R. Ashi said: Even these are not slain, because those who disprove their evidence are not liable if their own is subsequently confuted.²⁰

Raba also said: If an ox, a terefah, killed [a man], it is liable [to be stoned]; but if an ox belonging to a terefah [person] killed, it is exempt. Why so? — Because the Writ saith, The ox shall be stoned, and his owner shall also be put to death;²¹  wherever it is possible to read, 'and his owner shall also be put to death,' we also read, 'the ox shall be stoned;' but where we cannot apply, 'and his owner shall also be put to death,'²²  we do not read, 'the ox shall be stoned.' R. Ashi said: Even an ox, a terefah is exempt. Why so? — Since the owner in a similar condition would be exempt, the ox too is exempt.²³

IF HE SET ON A DOG OR A SNAKE AGAINST HIM, etc.

R. Aha b. Jacob said: If you will investigate [the grounds of the dispute, you will learn that] in R. Judah's opinion the snake's poison is lodged in its fangs, therefore, one who causes it to bite [by placing its fangs against the victim's flesh] is decapitated, whilst the snake itself is exempt. But in the view of the Sages the snake emits the poison of its own accord; therefore the snake is stoned, whilst he who caused it to bite is exempt.²⁴

MISHNAH. IF A MAN SMOTE HIS FELLOW, WHETHER WITH A STONE OR WITH HIS FIST, AND THEY [THE EXPERTS] DECLARED THAT DEATH WOULD ENSUE; BUT THEN ITS EFFECT LESSENED [SO THAT IT WAS THOUGHT THAT HE WOULD LIVE], ONLY TO INCREASE SUBSEQUENTLY, SO THAT HE DIED. — HE IS LIABLE. R. NEHEMIAH SAID THAT HE IS EXEMPT, SINCE THERE IS EVIDENCE²⁵  [THAT HE DID NOT DIE AS A RESULT OF HIS INJURIES, AS HE HAD ALREADY BEEN ON THE MEND.]

GEMARA. Our Rabbis taught: R. Nehemiah gave the following exposition: If he rise again, and walk abroad

1. Not in a slanting direction.
2. I.e., most of the force with which he threw it was already expended, but sufficient was left to impel it in the direction in which it fell.
3. Lit., 'brought his death near'; v. B.K. 26b.
4. [H].
5. Lev. XXIV, 17.
6. Hence, if ten men assailed him successively, he was already nearly dead when the last smote him: therefore the last too is exempt.
7. I.e., however little life the man has, even if he is nearly dead, the man who actually kills him is liable.
8. V. Glos. When used of a person, it means that he was suffering from some fatal organic disease, recovery from which is impossible.
9. l.e., naturally, through age or weakness, but without an organic disease or wound.
10. As here: nine men had smitten him, and though not actually a trefah, he was already at the point of death.
11. Hence his slayer is exempt.
12. Lit., 'cut'.
13. Although suffering very much from the successive blows, and on the point of death, no vital organ, e.g., the heart or lungs, is injured, as in the case of a trefah.
14. That the last of the ten is liable for hastening his death, though the cumulative effect of the preceding nine would have caused his death in any case, if not so soon.
15. Deut. XIII, 6.
16. Ibid. XIX, 16-19. Since the murder was not committed in the presence of a Beth din, witnesses must testify thereto. But should they subsequently be proved false (Zomemim, v. Glos.) they could not be executed in accordance with Deut. XIX, 16-19, because they had sought the execution of one who is already regarded as dead, a terefah being thus considered, and testimony to which this law is inapplicable is not valid. But if the murder was committed in the presence of a Beth din, so that no testimony at all is required, the ordinary law of a murderer applies.
17. Whereas there is no sexual gratification in abusing the dead.
18. It being proved they they were absent from the scene of the alleged murder.
19. V. p. 523, n. 3.
20. If A and B's testimony is disproved by C and D, who testify that they were with them elsewhere than at the scene of the alleged crime, and then the latter themselves are similarly refuted, the law of Deut. XIX, 16-19 is applicable to C and D, since they had sought to impose punishment upon the first two. But if A and B were terefah, this law would not apply to C and D; consequently, the entire law does not apply, and hence they are not executed.
21. Ex. XXI, 29.
22. As here, since the owner, being a terefah, is regarded as already dead.
23. For this verse puts the two on an equal basis. It should be observed that in practice the owner was never killed, but ransomed, in accordance with Ex. XXI, 30 (v. supra 2a).
24. On R. Judah's view, the fangs themselves are poisonous. Consequently, the snake does nothing, the murder being committed by the person. But the Sages maintain that even when its fangs are embedded in the flesh, they are not poisonous, unless it voluntarily emits poison. Consequently the murder is committed by the snake, not the man. The law of Ex. XXI, 30 applies to all animals and reptiles.
25. Lit., 'there are feet', 'there is a basis, a reason for it'.

[The preceding discussion agrees with what] has been taught: Moses knew that the 'gatherer' was to be executed, for it is written, Every one that defileth it shall surely be put to death;⁸  but he did not know by which death, as it is written, [And they put him in ward,] because it was not declared what should be done to him.⁹  But in the case of the blasphemer, it is only said, [And they put him in ward,] that the mind of the Lord might be shewed them;¹⁰  implying that Moses did not know whether he was at all liable to death or not.

Now, on R. Nehemiah's view, it is right that two phrases bearing on judicial assessment are written;¹¹  one teaching that if his injury was declared to be fatal, but yet he survived; the other, that if it was judged that he would die, and then the effect of the blow was lightened, [yet he subsequently died — that in both cases he is quit]. But according to the Rabbis [who maintain that in the latter case he is executed], why are two such clauses necessary? — One teaches that if his injuries were declared fatal, yet he survived, and the other, that if they were declared non-fatal, yet he died, — [that in both cases the assailant is free]. But R. Nehemiah maintains that no verse is necessary for the latter case, since he left Beth din a free man.¹²

Our Rabbis taught: If a man smite his neighbour and the blow was assessed to be fatal, yet he survived, he is dismissed.¹³  If the injury was declared fatal, but subsequently lightened, a second assessment of the financial damage is made.¹⁴  If thereafter he grew

Another [Baraitha] taught: If his injuries were declared fatal, they may subsequently be declared non-fatal.¹⁷  But once his injuries are declared non-fatal, they cannot subsequently be declared fatal.¹⁸  If the blow was assessed to be fatal, but then he became better, a second assessment of the financial damage is made, and if he subsequently died, he must make compensation for the damage, pain [etc.]¹⁹  to the heirs. From when must compensation be made? — From when he smote him.²⁰  And thus this anonymous [Baraitha] agrees with R. Nehemiah.²¹

MISHNAH. IF HE INTENDED KILLING AN ANIMAL BUT SLEW A MAN, OR A HEATHEN AND HE KILLED AN ISRAELITE, OR A PREMATURELY BORN AND HE KILLED A VIABLE CHILD, HE IS NOT LIABLE.²²  IF HE INTENDED TO STRIKE HIM ON HIS LOINS, WHERE THE BLOW WAS INSUFFICIENT TO KILL, BUT SMOTE THE HEART INSTEAD, WHERE IT WAS SUFFICIENT TO KILL, AND HE DIED; OR IF HE INTENDED SMITING HIM ON THE HEART,

1. Ex. XXI, 19.
2. The representatives of the anonymous opinion in the Mishnah.
3. V. Num. XV, 32-36. Pending a decision, 'they put him in ward'.
4. Hence it is obvious that he had to be incarcerated. On this view, Moses knew that he had to be executed. This is discussed below.
5. I.e., this case could not be deduced from the other.
6. Lev. XXIV, 10-14.
7. Lit., 'a decision for the moment'. For, death not having been previously prescribed for blasphemy, there was no reason for his incarceration, but that it seemed expedient. But a special ad hoc decision cannot be taken as precedent for normal procedure.
8. Ex. XXXI, 14.
9. Num. XV, 34.
10. Lev. XXIV, 12. This implies that the entire law was unknown, whilst 'what should be done to him' indicates that only the details, i.e. mode of death, were unknown.
11. V. Ex. XXI, 18f: And if men strive together, and one smite another with a stone, or with his fist, and he die not, but keepeth his bed: If he rise again, and walk abroad upon his staff, then shall he that smote him be quit: only he shall pay for the loss of his time, and shall cause him to be thoroughly healed. Two phrases are superfluous, viz., 'and he die not', and 'If he rise again and walk abroad upon his staff', for it is self-evident that the assailant cannot be executed under such circumstances: hence they must refer to a judicial calculation that he would not die, which was, however, subsequently falsified.
12. A favourable verdict cannot be reversed (v. supra 33b). Therefore in the latter case it is obvious that 'he is quit'.
13. [I.e., exempt from death, but liable to pay damages.]
14. I.e., the probable period that he would be incapacitated and the cost of medical assistance, for both of which he is liable.
15. I.e., he is liable for the financial damage, as it was computed, but not to death.
16. I.e., since on the first computation the injuries were declared fatal, when he subsequently grew better, and financial damages were awarded, we do not regard him as having left Beth din a free man (in respect of the capital penalty), but judge him according to the ultimate issue, and hence he is executed.
17. If he grew better, and the assailant is thus freed from death.
18. If he grew worse and died, the culprit is not executed.
19. [On the payments for injuries, v. B.K. VIII, 1.]
20. In assessing the victim's worth, his value before being smitten is taken. But we do not say, since his injuries were first declared fatal, and then not fatal, subsequent to which he died, his value should be assessed on the basis of his health at the time of the second computation.
21. That financial compensation must be made, but there is no liability to death.
22. [A prematurely born child for the first thirty days is not considered viable.]