סנהדרין 78

78:1

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. R. Johanan said: Both derive [their rulings] from the same verse, And he that killeth kol nefesh [lit., 'all life'] of man shall surely be put to death. The Rabbis maintain that kol nefesh implies the whole life; but R. Judah b. Bathyra holds that kol nefesh implies whatever there is of life. Raba said: Both agree that if he killed a terefah, he is exempt; if he slew one who was dying through an act of God, he is liable; their dispute refers only to one who was dying through man's act: the one likens him to a terefah, 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, but this one has not. 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. But if not, he is exempt, because the law of confuted testimony is inapplicable, and testimony which cannot be so confuted is inadmissible. 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. Raba also said: if witnesses testified [to murder] against a terefah and were then confuted, they are not executed. 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. 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; 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,' 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. 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. 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 EVIDENCE [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

—

78:2

[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; 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. 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; 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; 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. Our Rabbis taught: If a man smite his neighbour and the blow was assessed to be fatal, yet he survived, he is dismissed. If the injury was declared fatal, but subsequently lightened, a second assessment of the financial damage is made. If thereafter he grew Another [Baraitha] taught: If his injuries were declared fatal, they may subsequently be declared non-fatal. But once his injuries are declared non-fatal, they cannot subsequently be declared fatal. 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.] to the heirs. From when must compensation be made? — From when he smote him. And thus this anonymous [Baraitha] agrees with R. Nehemiah. 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. 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,

—