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Sanhedrin, 79

1) DEFINING A "HASRA'AS SAFEK"

QUESTION: The Gemara discusses an argument between Rebbi Shimon and the Rabanan regarding what we learn from the verse, "v'Arav Lo v'Kam Alav" -- "and he ambushes him and rises up against him" (Devarim 19:11). Rebbi Shimon says that this verse teaches that in order for a person to be liable to punishment for murder, he must have intention to kill his victim; if he has intention to kill one person but instead kills another, he is Chayav Misah as a murderer. The Rabanan argue and say that the verse teaches that if a person throws a rock into a crowd of Jews and Nochrim, and the rock kills a Jew, the perpetrator is not put to death by Beis Din.

The Gemara says that the Rabanan are not referring to a case in which there were nine Nochrim and one Jew in the crowd; in such a case we certainly would not execute the murderer for this act of killing, because there were mostly Nochrim in the crowd. The principle of Rov dictates that since there was a majority of Nochrim in the crowd, it is considered as though he intended to kill a Nochri when he threw the rock into the crowd, for which he is not Chayav Misah. The case also cannot be one in which there were five Jews and five Nochrim, because the principle of "Safek Nefashos l'Hakel" tells us to be lenient in such a case as well and assume, out of doubt, that he intended to kill a Nochri and not a Jew. Rather, the Gemara explains that the Rabanan are referring to a case in which there were nine Jews and only one Nochri. Since the Nochri is "Kavu'a" ("in his place" and not separated from the others in the group), he gives the crowd a status of half-Jews and half-Nochrim because of the principle of "Kol Kavu'a k'Mechetzeh Al Mechetzeh Dami." The verse is teaching that whenever there is a single item which is a Kavu'a in a group, it is considered "k'Mechetzeh Al Mechetzeh" and consequently, in the case of a murderer, we must be lenient because of "Safek Nefashos l'Hakel."

Why does the Gemara say that the case of the Rabanan cannot be one in which there are five Jews and five Nochrim, because in such a case we apply the principle of "Safek Nefashos l'Hakel" and do not kill the perpetrator? Even if we do not apply the principle of "Safek Nefashos l'Hakel," we should not be able to kill the perpetrator, because the warning (Hasra'ah) that he received was not valid, as it was a "Hasra'as Safek!" A Hasra'as Safek is a warning given when there remains a doubt at the time of the Hasra'ah whether the prohibited act will result in punishment by Beis Din. For example, when a person hits two people and he is not sure which one is his father, he is not Chayav Misah because the Hasra'ah that he receives is a Hasra'as Safek. That is, even if he is warned not to hit the first person "because if you hit the second one you will definitely have hit your father and you will be Chayav Misah," he is still not Chayav, because at the time of the first act it was not clear that the act would result in the death penalty. Since the Hasra'ah in the case of our Gemara is only a Hasra'as Safek and is not valid, Beis Din cannot put the perpetrator to death!

We cannot answer that the Gemara is following the opinion that maintains that a Hasra'as Safek *is* a valid Hasra'ah (Makos 15b), because according to that opinion, why is the killer *not* guilty in this case? According to that opinion, the Hasra'ah that a person receives before he hits two people (where it is not known which one of the two is his father) *is* a valid Hasra'ah. If the perpetrator is liable to punishment in a case in which he hits two people and we are not sure which one is his father, then certainly the warning that he receives before throwing the rock into the crowd should be a valid Hasra'ah! (TOSFOS DH Iy Nami)

ANSWERS:

(a) TOSFOS answers that our Gemara is indeed following the opinion which maintains that a Hasra'as Safek *is* a valid Hasra'ah. The reason why the killer is exempt in our case is because at the time that he threw the rock into the crowd (and received Hasra'ah), there was no way that he could ensure that his act would make him Chayav Misah. Thus, the Hasra'ah in this case is not even a Hasra'as Safek. In contrast, in the case in which a person hits the first of two people, it is within his control to make sure that he will be Chayav Misah -- all he has to do is hit the second person. Hence, the Hasra'ah in that case is considered a valid Hasra'ah, even though at the time that he performs the first act, it is not certain that he will be Chayav Misah (since it is not certain that he will perform the second act).

(b) The SHITAH MEKUBETZES in Kesuvos (15a) answers in the name of RABEINU ELIEZER MI'GURMAIZA (Worms) that the Gemara is following the opinion that a Hasra'as Safek is a valid Hasra'ah (like Tosfos), and that the Hasra'ah in the case of our Gemara *is* a valid warning (not like Tosfos says), and the thrower should be Chayav Misah. The Gemara does not mean to say that we should be lenient and spare the life of the perpetrator (as Tosfos understands the Gemara to be saying). Rather, the Gemara is saying that once the perpetrator has been warned that he *might* kill a Jew through his action, should he not take into account the possibility of killing a Jew and be lenient with that Jew's life? (That is, the Gemara is not making a statement, but asking a rhetorical question.) It is obviously a good Hasra'ah, and therefore it cannot be the case that the verse is excluding according to the Rabanan. (Y. Montrose)

(c) The YAD RAMAH explains that when the stone landed and killed one of the people in the group, it was not possible to determine whether it was a Jew or Nochri that was killed. The Gemara's question is that if half of the people in the group were Jews and half were Nochrim, then why should the thrower be Chayav Misah? It is obvious that he cannot be killed, since there is an equal chance that the victim is not a Jew. Rather, it must be that most of those present were Jews, and that is why we might have thought that the thrower is Chayav even though we could not determine the identity of the dead man. The Gemara concludes that the thrower is nevertheless exempt because of the rule of "Kavu'a."

79b

QUESTIONS: The Mishnah states that "a murderer who became mixed with others" exempts everyone in the crowd from punishment (as the Gemara will explain). Rebbi Yehudah argues and says that all of the people are placed into a "Kipah." RASHI explains that a Kipah is a place of confinement where the criminals are held and fed barley until their stomachs blow up (as the Gemara explains on 81b). The Gemara inquires as to the identity of these other people. The Mishnah certainly is not referring to a group of innocent people, for then it would be obvious that, according to the Rabanan, they are exempt from punishment. Similarly, according to Rebbi Yehudah it is obvious that innocent people would not be placed in a Kipah and caused to suffer a terrible death.

Rebbi Avahu answers that the Mishnah is discussing a murderer who escaped from his trial before being sentenced, and he became mixed in a crowd of other murderers *who were already sentenced to death*. The Rabanan maintain that since Beis Din may sentence a person to death only in that person's presence, Beis Din cannot sentence to death the runaway murderer in absentia. Consequently, the entire crowd is permitted to go free out of doubt which one is the one who is exempt. Rebbi Yehudah says that even though we cannot administer the death penalty that they deserve, we may still execute them the manner of the Kipah.

(a) Does this Halachah apply to all cases of uncertain identity involving people who are supposed to be killed, and not just to a case involving murderers?

(b) Is there a difference between a case in which only one person was not sentenced to death, and a case in which a majority of the people in the crowd were not sentenced? In addition, according to the Rabanan, are all of the murderers in the group entitled to go home as free men?

ANSWERS:

(a) The TORAS CHAIM states that the Mishnah is specifically referring to a case involving a murderer who became lost in a crowd of other murderers, and not to a case involving a person who was going to be sentenced to death for another violation, such as for desecrating Shabbos. Only when the others in the crowd are murderers does Rebbi Yehudah maintain that we administer the punishment of Kipah. In order for the Mishnah to express the opinion of Rebbi Yehudah, it is discussing a case of murderers where his opinion applies.

(b) The ME'IRI quotes two opinions regarding the Halachah in a case in which only a minority of the people in the crowd was sentenced to death, and a majority was not sentenced to death. One opinion maintains that the Halachah is the same. Another opinion maintains that in such a case Rebbi Yehudah would agree that we do not put them all into a Kipah, and that only when *most* of them are convicted murderers do we put them into a Kipah.

The MARGOLIYOS HA'YAM cites an opinion which infers from the wording of the RAMBAM that he is of the latter opinion. The Rambam (Hilchos Rotze'ach 4:7) rules like the Rabanan who say that we do not kill the people in the crowd. However, the Rambam states, we keep them incarcerated. The Rambam elsewhere (Hilchos Sanhedrin 14:7) discusses a similar case involving two people, in which one person was sentenced and the other was not. The Rambam, there, too, rules like the Rabanan and does *not* say that both people are put to death. However, he omits his ruling about incarcerating them! It must be that the Rambam understands that the Rabanan only require that the entire group be kept in confinement when a *majority* were convicted. When a minority, or half, of the people in the group were convicted, then the law does not require incarceration. (Presumably the Rambam would explain the opinion of Rebbi Yehudah in the same manner, and say that in a case in which there are only two murderers, Rebbi Yehudah does not require that they be placed in a Kipah.)

The Acharonim discuss the source for the Rambam's ruling of incarcerating all of the people in the crowd. The KESEF MISHNEH explains that the Rambam derived this requirement from a law in the Torah. The Torah teaches that we are to jail a person who hit another person with a potentially fatal blow until it becomes clear that the victim will survive (Kesuvos 33b, based on Shemos 21:19). Similarly, we are to jail murderers who cannot be executed due to a technicality.

The ARUCH LA'NER questions the Kesef Mishneh's explanation of the Rambam's source. The law that we jail a person who hit another person until it becomes clear that the victim will survive is not related to the case of our Gemara that the Rambam is discussing. In the Torah's case, we must jail the perpetrator temporarily, until the doubt that we have resolves itself (by the victim either recovering or dying). In the case of our Gemara, though, the identity of the murderer who was not sentenced to death might never be clarified, and thus perhaps in such a situation the Torah does not advocate imprisonment.

The Aruch la'Ner, therefore, says that the Rambam's source is a Yerushalmi in which Rebbi Yochanan says that the case of our Mishnah is dealing with ordinary people (and not murderers). The Rambam understood that according to that opinion, if the case involved criminals, then even the Rabanan would agree to place them in a Kipah.

The Aruch la'Ner also learns that the Rambam is arguing with Rashi about the definition of "Kipah" in our Mishnah. He does not agree that it is a small confinement area in which the criminals are fed barley that eventually kills them, but rather that it is a jail, a place to keep the criminals imprisoned. (Y. Montrose)