Makkot

MISHNAH. IF TWO PERSONS SEE THE MALEFACTOR FROM ONE WINDOW AND TWO OTHER PERSONS SEE HIM FROM ANOTHER WINDOW AND ONE STANDING MIDWAY UTTERS THE PRE-ADMONITION TO HIM, THEN, IF SOME ON ONE SIDE AND SOME ON THE OTHER SIDE CAN SEE ONE ANOTHER,1 THEY CONSTITUTE TOGETHER ONE BODY OF EVIDENCE, BUT IF THEY CANNOT [PARTLY SEE ONE ANOTHER], THEY ARE TWO BODIES OF EVIDENCE. CONSEQUENTLY, IF ONE OF THESE [BODIES] IS FOUND ZOMEMIM, BOTH HE AND THEY2 ARE PUT TO DEATH, WHILE THE PARTY THAT CAME SECOND IS DISCHARGED. R. JOSE OBSERVES THAT A MALEFACTOR IS NEVER PUT TO DEATH UNLESS TWO WITNESSES HAD DULY PRE-ADMONISHED HIM, AS HOLY WRIT PRESCRIBES, AT THE MOUTH OF TWO WITNESSES OR THREE WITNESSES SHALL HE THAT IS WORTHY OF DEATH BE PUT TO DEATH; BUT AT THE MOUTH OF ONE WITNESS HE SHALL NOT BE PUT TO DEATH.3 ANOTHER INTERPRETATION OF THE WORDS, AT THE MOUTH OF TWO WITNESSES . . . IS THAT THE SANHEDRIN SHALL NOT HEAR THE EVIDENCE FROM THE MOUTH OF AN INTERPRETER. GEMARA. R. Zutra b. Tobiah reported that Rab said: How can it be shown that ‘disjoined’ testimony4 is disqualified? Because, Holy Writ prescribes that at the mouth of one witness he shall not be put to death.3 Now, what is [the import of this special admonition here against] one witness? If it be taken literally as one sole witness, is not this already implied in the earlier context, at the mouth of two witnesses or three witnesses shall he that is worthy of death be put to death? What, then, is the meaning of one witness? One by one.5 The same is also taught, thus: Holy Writ prescribes [especially], at the mouth of one witness he shall not be put to death to cover instances where two persons see the malefactor, one from a window here and the other from a window there, without, however, seeing each other, [in which case] such evidence cannot be conjoined. Nay, furthermore, even if they both witnessed the offence from the same window, first one and then the other, their testimony cannot be conjoined. R. Papa remarked to Abaye: Now, if, [in the first instance above,] where one saw the offence from one window and another from another window [simultaneously], one having witnessed the whole act and the other having witnessed the whole act, you say that such testimony cannot be conjoined; is there any occasion at all to give [the second instance], where two witnesses saw the act [albeit from the same window], only consecutively, and where consequently this one only saw but half the act, and the other but half the act? — Abaye replied: The second might seem unnecessary, but for such an instance as incest.6 Raba said: If they both saw the admonitor, or he saw them both, they can be conjoined in the testimony as a whole, Raba further said in reference to the requisite admonition, that if it was uttered even by the victim himself, or even if it came from some [invisible] demon7 [it was sufficient]. R. Nahman8 stated that in monetary suits ‘disjoined’ testimony is admissible, since Holy Writ prescribes, ‘by the mouth of one witness he shall not be put to death’. It is only in a capital charge that ‘disjoined’ testimony is inadmissible; but in monetary suits it is admissible. R. Zutra9 demurred to this [and argued,] if so, why not put this forward as a plea for ‘deliverance’10 [in a capital charge]? Why, then, does the Mishnah state that BOTH HE [THE ACCUSED] AND THEY [THE ZOMEMIM] ARE PUT TO DEATH?11 — This is a difficult point. R. JOSE12 OBSERVES THAT A MALEFACTOR IS NEVER PUT TO DEATH UNLESS TWO WITNESSES HAD DULY PRE-ADMONISHED HIM . . . Said R. Papa to Abaye: Is this really R. Jose's view? Do we not learn: R. Jose says, An [avowed] enemy is executed, because he is, as it were, attested and already pre-admonished?13 — To this Abaye replied that the authority of that cited Mishnah was R. Jose b. Judah, as it is taught [explicitly elsewhere]: R. Jose b. Judah says, a scholar14 needs no pre-admonition, because pre-admonition was introduced only as a means for discriminating between the inadvertent and deliberate offender. ANOTHER INTERPRETATION OF THE WORDS, AT THE MOUTH OF TWO WITNESSES.....IS THAT THE SANHEDRIN SHALL NOT HEAR THE EVIDENCE FROM THE MOUTH OF AN INTERPRETER. Certain foreigners came [with a suit] before Raba and he appointed an interpreter. How could he do that? Do we not learn that THE SANHEDRIN SHALL NOT HEAR THE EVIDENCE FROM THE MOUTH OF AN INTERPRETER? — Raba understood well enough what they said, only he did not know how to reply. intriguers who, out of enmity to him, supported the charge against him, although by an attested alibi, they could not possibly have been eye-witnesses. ‘This is a unique instance in the jurisdiction of Sanhedrin.’ J. Makk. I, 14. testimony is not admissible. punishment on any and every pretext, then why not advance this argument: just as you stressed the verse, by . . . one witness he shall not be put to death, to mean, not a fit witness to effect a capital sentence, yet fit enough among others in a monetary suit; you might just as well stress it to mean, not fit to effect a capital sentence, yet fit enough to effect a deliverance (discharge) on the ground that, as a witness of ‘disjoined’ evidence (disqualified in a capital charge), he disqualifies by his presence all the other witnesses.