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Sanhedrin, 81

1) TWO DEATH SENTENCES

QUESTION: The Mishnah states that when a person transgresses two separate sins for which he is convicted to death with two different types of death, he receives the harsher of the two death penalties. The Gemara asks that this is obvious; after all, one should not be given an easier death as a result of doing more severe sins! Rava answers that the case of the Mishnah is when the transgressor commits the less severe sin *first*, and then, only after being sentenced to death for that sin, he commits the second, more severe sin. We might have thought that after the conviction for his first sin he is already considered dead, and thus whatever he does afterwards does not change his death. The Mishnah teaches that this is not correct and, indeed, he can still make things worse for himself.

TOSFOS cites a Halachic principle that seems to be in conflict with the teaching of our Mishnah. The Gemara in Makos (5a) and in other places states that testimony given by witnesses who cannot become Edim Zomemim is not acceptable. In the case of our Mishnah, before the person commits his second crime he is already considered to be dead. Since the witnesses who testify about his second sin are not attempting to have him put to death (since he is already condemned to die), they will not receive that punishment if they are shown to be Edim Zomemim. The Gemara in Makos states explicitly that when witnesses are found to be Edim Zomemim for testifying against a person who had already been sentenced to death, they do not receive the punishment they attempted to give the defendant, because he was already considered dead. Why, then, does our Mishnah say that we accept the testimony of the witnesses about the second sin, which causes him to endure a harsher death? Their testimony should not be acceptable, since they cannot be made into Edim Zomemim!

ANSWERS:

(a) TOSFOS answers that there is a precedent from an earlier Gemara (78a) to accept the witnesses' testimony about second sin -- in a case in which he does the sin in front of Beis Din. The Gemara there states that a person whose death is imminent can be convicted of killing only if he did so in front of Beis Din. He is not sentenced to death if he killed in a different manner, because of the reason mentioned above -- the witnesses cannot be made into Edim Zomemim, since he is already considered dead. However, the verse (Devarim 19:19) states that Beis Din has an obligation to "remove the evil from your midst." This obligation requires the Beis Din -- which sees a sin committed in front of them -- to remove the evildoer. Hence, when that sin done in front of Beis Din was the second, more severe sin that a person did, he must receive the harsher punishment.

(b) Tosfos answers further that since the first verdict still may be overturned (such if other witnesses come forward in his defense, or if they make the first set into Edim Zomemim, which is permitted until he is executed), the witnesses to the second act are not considered witnesses who cannot be made into Edim Zomemim. (The Gemara in Makos, in contrast, is referring to a case in which two witnesses testify that a person -- who was convicted of killing on Sunday -- killed on Monday, and then those two witnesses are found to be Edim Zomemim. They are *not* punished, because the man about whom they were testifying was already considered dead. We do not apply the reasoning that he *might* be exonerated in order to *kill* witnesses who are not deserving of death. See MAHARSHA.)

The ARUCH LA'NER asks that Tosfos omits a seemingly obvious answer. We can answer that the witnesses for the first and second transgressions are the same witnesses, and the sins happened one after the other. If the witnesses were found to be Edim Zomemim regarding the second act, then they will also not be believed with regard to the first. The Aruch la'Ner answers that Tosfos did not give this answer, because the Gemara cannot be interpreted in such a manner. Rava clearly states that the person sinned, was convicted and sentenced, and then he sinned again. Since the sentencing to death can only be done the day after the hearing, it is not possible that the Gemara is dealing with a case in which both sins occurred on the same day.

The MARGOLIYOS HA'YAM quotes a source that asks a different question on Tosfos' second answer. As long as the witnesses (when found to be Edim Zomemim) can claim that they came *not* to kill the man but only to inflict a more painful death, they should not be punished with death regardless of whether or not the testimony of the first witnesses is overturned (see Insights to Sanhedrin 9b)! He answers that it must be that the second group of witnesses did not know that the defendant was already condemned to death. Therefore, they cannot claim that they came just to give a more painful death, as they did not know that he was supposed to die in the first place. (However, it does not seem from the wording of Tosfos that this is his intent.) (Y. Montrose)

81b

OPINIONS: The Mishnah describes some unusual forms of punishment for various types of transgressions. For example, if a person repeatedly commits sins which are punishable with lashes, he may eventually be punished by being placed in a Kipah, a small confining structure, in which he is fed barley until his stomach ruptures. A similar punishment is given to a person who killed intentionally but there is no proper testimony of witnesses. A person caught stealing a vessel used in the Beis ha'Mikdash is liable to "Kana'im Pog'in Bo" -- if a zealous, righteous person catches him then he may kill him. What is the source for all of these punishments which are not mentioned in the Torah?

(a) The RAN suggests that all of these laws were given to Moshe Rabeinu at Har Sinai (as a Halachah l'Moshe mi'Sinai). He proves this from the Gemara later which states that Pinchas asked Moshe, "Did you not teach us when you came down from Har Sinai that a person may strike such a sinner (i.e. one who is having relations with a Nochri woman)?" Moreover, the Gemara asks with regard to the punishment given to a repeat sinner, and the punishment given to one who steals a vessel from the Beis ha'Mikdash, where these laws are alluded to in the Torah ("Heicha Remiza?"). If these were merely punishments mid'Rabanan, the Gemara would not ask for the allusion in the Torah for these laws. RASHI apparently agrees with this proof, since he comments (DH k'Vala Es ha'Kodesh) that the Gemara is merely seeking a slight hint to the law, as the law itself was given to Moshe at Sinai.

The Ran explains that the Gemara does not ask this question with regard to someone who kills intentionally without witnesses, simply because it already understands the source for this law. The verse states, "And the land will not have atonement for the blood that was spilled upon it, except with the blood of the murderer" (Bamidbar 33:35). It is obvious, therefore, that we should see to it that a killer does not live, even if -- due to a technicality -- we cannot actively execute him.

The Ran questions his explanation from the Gemara later (82b). The Gemara asks whether it is possible to find a case in which Beis Din kills a person whom the Torah says is free of punishment. The Gemara answers that this is the type of case in all of the aforementioned Mishnayos, which discuss placing a person in a Kipah, and "Kana'in Pog'in Bo." If these punishments were taught at Sinai as the Ran suggested, then why does the Gemara imply that they are *not* Torah law?

The Ran quotes an opinion which answers that the Gemara is asking a different question. The Gemara is asking whether there exists such a case in which a Beis Din would find a person innocent, and yet we can preemptively punish him outside of Beis Din. That does not mean that those preemptive punishments are *not* mid'Oraisa, and thus there is no contradiction from the cases of our Mishnah to the question of the Gemara.

The Ran himself gives a different answer to his question. He explains that the Gemara is asking how can there be a case in which we kill someone based on Torah law if there is no hint to that law in the Torah. When the Gemara then asks about each particular case in the Mishnayos, it answers that each case is hinted to in the Torah, or has a logical, Torah-based reason behind it.

(b) The YAD RAMAH suggests that these laws are mid'Rabanan. This also seems to be the view of the RIVASH (#251) who discusses these laws as forms of a stringency that the Chachamim established. The MARGOLIYOS HA'YAM brings proof to this assertion from the Gemara in Kesuvos (33b), which deals with jailing an assailant while the victim is in critical condition, until the victim either recovers or dies. The Gemara inquires about the circumstances of the case: if the assailant was not warned with Hasra'ah, then why do we jail him in order to kill him if his victim dies? What, though, is the Gemara's question there? If the law of Kipah of our Mishnah is mid'Oraisa, then it is obvious why we put the assailant in jail even though there was no Hasra'ah; if his victim dies, then we will need to put him into a Kipah as his punishment! It must be that the Gemara there took it for granted that the law of Kipah is mid'Rabanan, and that is why it asks how we can jail a person who did not receive Hasra'ah, since, mid'Oraisa, there is no punishment that can be given to him.

The ARUCH LA'NER says that the Gemara entertains the possibility that these laws are mid'Rabanan. The Gemara asks, "Just because a person sinned and was deserving of lashes multiple times, he must be put to death?" If the Gemara at this stage knows that this law is a Halachah l'Moshe mi'Sinai, then there would be no question, just as we do not question any other punishment in the Torah. However, after the Gemara answers and shows how this law is hinted to in the Torah, it might be holding like Rashi and the Ran who say that these laws are indeed Torah punishments. (Y. Montrose)