סנהדרין 40 — Soncino English Talmud

¹MISHNAH. THEY [THE JUDGES] USED TO EXAMINE THEM WITH SEVEN [HAKIROTH] SEARCHING QUERIES: IN WHAT SEPTENNATE? IN WHAT YEAR? IN WHAT MONTH? ON WHICH DAY OF THE MONTH? ON WHAT DAY? AT WHAT HOUR [OF THE DAY]? AND, AT WHAT PLACE? R. JOSE SAID: [THEY WERE ONLY ASKED:] ON WHICH DAY [OF THE WEEK]? AT WHAT HOUR? AND, AT WHAT PLACE? [THEY WERE FURTHER ASKED:] DID YE KNOW HIM? AND, DID YE WARN HIM? WHERE ONE COMMITS IDOLATRY, [THE WITNESSES ARE ALSO ASKED] WHAT DID HE WORSHIP? AND, HOW DID HE WORSHIP? THE MORE EXHAUSTIVE THE CROSS-EXAMINATION [BEDIKOTH] THE MORE PRAISEWORTHY THE JUDGE. IT ONCE HAPPENED THAT BEN ZAKKAI CROSS-EXAMINED [THE WITNESSES] EVEN AS TO THE STALKS OF THE FIGS. WHAT IS THE DIFFERENCE BETWEEN HAKIROTH AND BEDIKOTH? — IN HAKIROTH, IF ONE [OF THE WITNESSES] ANSWERS: 'I DO NOT KNOW,' THEIR EVIDENCE IS VOID. WITH RESPECT TO BEDIKOTH, HOWEVER, IF ONE ANSWERS: I DO NOT KNOW,' OR EVEN IF BOTH SAY: 'WE DO NOT KNOW, THEIR EVIDENCE IS VALID. BUT IF THEY [THE WITNESSES] CONTRADICT EACH OTHER, WHETHER IN THE HAKIROTH OR THE BEDIKOTH, THEIR EVIDENCE IS VOID. IF ONE [WITNESS] TESTIFIES, '[IT HAPPENED] ON THE SECOND OF THE MONTH,' AND THE OTHER, 'ON THE THIRD OF THE MONTH:' THEIR EVIDENCE IS VALID, FOR ONE MAY HAVE BEEN AWARE OF THE INTERCALATION OF THE MONTH AND THE OTHER MAY NOT HAVE BEEN AWARE OF IT. IF, HOWEVER, ONE SAYS, 'ON THE THIRD,' AND THE OTHER, 'ON THE FIFTH, THEIR EVIDENCE IS INVALID. SIMILARLY, IF ONE TESTIFIES, 'DURING THE SECOND HOUR [OF THE DAY]' AND THE OTHER 'DURING THE THIRD HOUR:' THEIR EVIDENCE IS VALID. BUT IF ONE SAYS, AT THREE,' AND ANOTHER, 'AT FIVE,' THEIR EVIDENCE IS INVALID. R. JUDAH SAID: [EVEN THEN, THEIR EVIDENCE IS] VALID. BUT IF ONE SAYS, 'AT FIVE,' AND THE OTHER, 'AT SEVEN,' THEIR EVIDENCE IS INVALID, FOR AT FIVE THE SUN IS TO THE EAST, WHILE AT SEVEN, THE SUN IS TO THE WEST. AFTER THIS, THE SECOND [WITNESS] IS ADMITTED AND [LIKEWISE] EXAMINED. IF THEIR EVIDENCE TALLIES, THEY [THE JUDGES] COMMENCE [THE PROCEEDINGS] IN FAVOUR [OF THE ACCUSED]. SHOULD ONE OF THE WITNESSES DECLARE, 'I HAVE SOMETHING TO SAY IN HIS FAVOUR'; OR ONE OF THE DISCIPLES, 'I HAVE AN ARGUMENT IN HIS DISFAVOUR', HE IS SILENCED. BUT IF A DISCIPLE SAYS, 'I HAVE SOMETHING TO PLEAD IN HIS FAVOUR', HE IS BROUGHT UP AND SEATED WITH THEM, AND DOES NOT DESCEND FROM THERE ALL THAT DAY. IF THERE IS SUBSTANCE IN HIS STATEMENT HE IS HEARD. AND EVEN IF HE [THE ACCUSED] HIMSELF SAYS,' I AM IN A POSITION TO PLEAD IN MY OWN DEFENCE, HE IS HEARD, PROVIDED THERE IS SUBSTANCE IN HIS STATEMENT. IF THEY FIND HIM NOT GUILTY, HE IS DISCHARGED, IF NOT, IT [THE TRIAL] IS ADJOURNED TILL THE FOLLOWING DAY, WHILST THEY [THE JUDGES] GO ABOUT IN PAIRS, PRACTISE MODERATION IN FOOD, DRINK NO WINE THE WHOLE DAY, AND DISCUSS THE CASE THROUGHOUT THE NIGHT. EARLY NEXT MORNING THEY REASSEMBLE IN COURT. HE WHO IS IN FAVOUR OF ACQUITTAL STATES, 'I DECLARED HIM INNOCENT AND STAND BY MY OPINION.' WHILE HE WHO IS IN FAVOUR OF CONDEMNATION SHALL SAY: 'I DECLARE HIM GUILTY AND STAND BY MY OPINION.' ONE WHO [PREVIOUSLY] ARGUED FOR CONVICTION MAY NOW ARGUE FOR ACQUITTAL, BUT NOT VICE VERSA. IF THEY HAVE MADE ANY MISTAKE, THE TWO JUDGES' CLERKS ARE TO REMIND THEM THEREOF. IF THEY FIND HIM NOT GUILTY, THEY DISCHARGE HIM. IF NOT, THEY TAKE A VOTE. IF TWELVE ACQUIT AND ELEVEN CONDEMN, HE IS ACQUITTED. IF TWELVE CONDEMN AND ELEVEN ACQUIT, OR IF ELEVEN CONDEMN AND ELEVEN ACQUIT AND ONE SAYS, 'I DO NOT KNOW,' OR EVEN IF TWENTY-TWO ACQUIT OR CONDEMN AND A SINGLE ONE SAYS, 'I DO NOT KNOW,' THEY ADD TO THE JUDGES. UP TO WHAT NUMBER IS THE COURT INCREASED? — BY TWOS UP TO THE LIMIT OF SEVENTY-ONE. IF THIRTY-SIX ACQUIT AND THIRTY-FIVE CONDEMN, HE IS ACQUITTED. BUT IF THIRTY-SIX CONDEMN AND THIRTY-FIVE ACQUIT, THE TWO SIDES DEBATE THE CASE TOGETHER UNTIL ONE OF THOSE WHO CONDEMN AGREES WITH THE VIEW OF THOSE WHO ARE FOR ACQUITTAL. GEMARA. 'Whence is this inferred? — Rab Judah said: Scripture states, Then shalt thou inquire and make search and ask diligently; and it says, And [if] it be told thee and thou hear it, then shalt thou inquire diligently; again it says, And the judges shall inquire diligently.^ᵃ^ᵇ^ᶜ^ᵈ^ᵉ^ᶠ^ᵍ^ʰ^ⁱ^ʲ^ᵏ^ˡ^ᵐ^ⁿ^ᵒ^ᵖ^ᵠ^ʳ^ˢ^ᵗ^ᵘ^ᵛ^ʷ^ˣ^ʸ^ᶻ^ᵃᵃ^ᵃᵇ^ᵃᶜ^ᵃᵈ^ᵃᵉ^ᵃᶠ^ᵃᵍ

^ᵃnote:The witnesses, in a capital charge, after admonition. Other versions read 'him', i.e., the witness, since the witnesses were separately examined.
^ᵇnote:Of the Jubilee, was the murder committed?
^ᶜnote:Of the week. This latter inquiry is necessary because witnesses who might come to refute their evidence, might not remember the date while knowing on what day of the week it took place. (Rashi).
^ᵈnote:Rashi, the murderer; Maim. and others: the accused: R. Hananel: the murderer and the accused.
^ᵉnote:That murder is forbidden on pain of death? These two questions, according to Maimonides (Yad 'Eduth, I, 4-5) belong to the specific category of [H] (inquiry) which is on the one hand treated like [H] (investigation) in that the evidence is invalid if one of the witnesses cannot answer them; and on the other like [H], (cross-examination) in this respect that the witnesses are not amenable to the law of retaliation in case of refutation.
^ᶠnote:I.e., which idol?
^ᵍnote:Lit., 'with what?'
^ʰnote:Cf. infra 41a.
^ⁱnote:Of the tree under which a murder was alleged to have been committed.
^ʲnote:HAKIROTH refers to the questions on date, hour and place: BEDIKOTH to cross examination on the accompanying circumstances.
^ᵏnote:I.e., that of both witnesses.
^ˡnote:I.e., one knew that the previous month had consisted of thirty days whilst the other thought that it had consisted only of twenty-nine days provided they agree as to the day of the week. Cf. Kesef Mishneh, on Yad'Eduth II, 4, and Tosaf. 41b s.v. [H].
^ᵐnote:The length of the day was counted from sunrise to sunset, and having regard to the variation of that period, an hour lasted anywhere between 49 and 71 minutes.
^ⁿnote:For people are liable to error in matters of the exact time in the hour.
^ᵒnote:An error in two hours is improbable.
^ᵖnote:Mishnah supra pp. 175-6.
^ᵠnote:V. supra 32b.
^ʳnote:Cf. supra 34a. Witnesses after having given their testimony, are not allowed to make any further statements, even for acquittal, as they might do so with a view to avoiding any possible charge of collusion arising out of their first evidence.
^ˢnote:The judges. It follows that the judges sat on raised seats faced by the disciples. V. supra p. 230, n. 10.
^ᵗnote:Cf. supra 32a, and note.
^ᵘnote:During the adjournment, to discuss the matter.
^ᵛnote:Another precautionary measure in capital cases
^ʷnote:[V. Yad Ramah.]
^ˣnote:Cf. supra 36b.
^ʸnote:Lit., 'they stand to vote.'
^ᶻnote:So that there is no majority of two for conviction. cf. supra 2a.
^ᵃᵃnote:The member who is doubtful is regarded as non-existent (cf. supra 17a), whilst capital cases may not be tried by less than twenty-three.
^ᵃᵇnote:If there is a division of opinion amongst the newly co-opted members.
^ᵃᶜnote:When the court has been increased to the extreme limit.
^ᵃᵈnote:The seven questions of time and place.
^ᵃᵉnote:Deut. XIII, 15. In reference to a condemned city. The three expressions for investigation indicate three questions. It should be observed, however, that the Talmud does not regard the word 'ask' by itself as teaching that a formal question must be put to the witnesses but that here it is coupled with 'diligently'.
^ᵃᶠnote:Ibid. XVII, 4, in connection with the trial of an idolater. The words thou shalt inquire denote one question, and the emphasis, diligently, a second.
^ᵃᵍnote:Ibid. XIX, 18, with reference to witnesses proved Zomemim (v. Glos). Here also two questions are implied. Hence seven questions in all are necessary.

²Now, we infer [the same requirement for charges punishable by] strangulation a minori from cases punishable by stoning or decapitation. Again, the same is deduced for cases of burning a minori from those of stoning. This [however] is right on the view of the Rabbis that stoning is severer [than burning]. But what is to be said on the view of R. Simeon that burning is the severer? — Rab Judah therefore said: [Scripture states,] Behold if it be truth and the thing certain, [and again] Behold if it be truth and the thing certain: this gives eleven [expressions implying inquiry]. Seven [are employed] to indicate the seven queries: then subtracting the three needed for the gezerah shawah, one still remains, whose purpose according to R. Simeon, is to include the cases of burning, whereas according to the Rabbis, [the necessary explanation is that] Scripture [sometimes] takes the trouble of stating a fact which can be deduced a minori. R. Abbahu ridiculed this [explanation]: Perhaps it [the eleventh expression] indicates an eighth query! But are eight queries [hakiroth] conceivable? Why not? Surely, What part of the hour, may be added [as the eighth question]! And indeed, it has been taught even so: 'They examined him with eight queries.' Now, that is correct according to Abaye on R. Meir's ruling, viz., A man is [to be treated as] not liable to make even the slightest error. And even according to the version which states, A man is liable to make a slight error: it is also right. But according to Abaye on R. Judah's ruling, viz., A man is liable to err to the extent of half an hour, and according to Raba, who said, People are liable to err to even a greater extent, what can you say? — Well then, [the eleventh expression] may be intended to add, 'Which year of the Jubilee' as a query. But that is identical with: 'In what septennate?'! — Rather this is the additional question: 'In what Jubilee? And the other Tanna? — Since he [the witness] tells us in which septennate, it is necessary to ask: 'In which Jubilee?' R. JOSE SAID etc. it has been taught: R. Jose said to the Sages: According to your view, one who comes and testifies, 'He killed him last night,' must be asked: 'In which septennate? In what year? In what month? On what day of the month?' They retorted: And according to your view, one who comes and declares, 'He killed him just now,' is to be asked: 'On what day? At what hour? And where?' But [you too must answer that] even though the questions may be unnecessary, they are put to them [the witnesses], in accordance with the view of R. Simeon b. Eleazar; so here too, even if they are unnecessary, they are put to them [the witnesses], in accordance with R. Simeon b. Eleazar's view. And R. Jose? — 'He killed him last night,' is a frequent testimony; whereas, 'He has killed him just now,' is rare. DID YE KNOW HIM? Our Rabbis taught: [The following questions are asked]: Do ye know him? Did he kill a heathen? Did he kill an Israelite? Did ye warn him? Did he accept your warning? Did he admit his liability to death? Did he commit the murder within the time needed for an utterance? Where he committed idolatry, [the witness is asked:] Which [idol] did he worship? Did he worship Peor? Did he worship Merkolis? How did he worship? By sacrifice, offering incense, libations, or prostration? 'Ulla said: Where is the need of warning intimated in the Torah? — In the verse, And if a man shall take his sister, his father's daughter, or his mother's daughter, and see her nakedness. Does guilt then depend upon [mere] seeing? Hence it must mean [that he is liable to punishment] only if he 'sees' the reasonableness thereof. And since this is inapplicable to Kareth, ^ᵃʰ^ᵃⁱ^ᵃʲ^ᵃᵏ^ᵃˡ^ᵃᵐ^ᵃⁿ^ᵃᵒ^ᵃᵖ^ᵃᵠ^ᵃʳ^ᵃˢ^ᵃᵗ^ᵃᵘ^ᵃᵛ^ᵃʷ^ᵃˣ^ᵃʸ^ᵃᶻ^ᵇᵃ^ᵇᵇ^ᵇᶜ^ᵇᵈ^ᵇᵉ^ᵇᶠ^ᵇᵍ^ᵇʰ^ᵇⁱ

^ᵃʰnote:Since the need of the seven questions has been established in cases punishable by stoning or decapitation, viz., idolatry and witnesses proved Zomemim.
^ᵃⁱnote:Strangulation is regarded as a milder form of death than the former two, hence the seven questions are certainly necessary there. (V. p. 259, n. 2).
^ᵃʲnote:Stoning is severer than burning, and decapitation milder.
^ᵃᵏnote:I.e., how then can we deduce a seven-fold inquiry from cases involving a milder to those involving a severer punishment?
^ᵃˡnote:Deut XIII, 15, with reference to the condemned city.
^ᵃᵐnote:Ibid. XVII, 4, with reference to the idolater.
^ᵃⁿnote:For 'if it be truth' implies that a question is put to ascertain it; likewise,'and (if) the thing (be) certain' implies another question; hence the two sentences imply another four questions, in addition to the seven.
^ᵃᵒnote:Sc. concerning the word 'diligently' in the cases of idolatry, Zomemim, and the condemned city.
^ᵃᵖnote:That there too the witnesses must be examined with the seven queries of time and place.
^ᵃᵠnote:For, as stated above, they declared the need of seven queries in the cases of charges punishable by burning a minori from stoning. What need then of the eleventh expression, which likewise indicates the case of burning? Hence this assumption must be made.
^ᵃʳnote:How can it be taken for certain that its purpose is to extend the law of seven queries to charges of burning?
^ᵃˢnote:I.e., can one ask a further question through which false witnesses may be declared Zomemim?
^ᵃᵗnote:I.e., that eight queries are conceivable, each of which may serve the purpose of refuting the witnesses.
^ᵃᵘnote:In regard to the exact time (Pes. 11b). So that, should the witnesses be refuted over a matter of half an hour, e.g., if they stated that they witnessed a murder at 4:30, and other witnesses testify that they were elsewhere, we do not assume that they might have witnessed the murder at 4 or 5, and erred in half an hour, but declare them Zomemim. Hence a purpose is served by questioning them on the precise part of the hour.
^ᵃᵛnote:To add another query as regards the precise part of the hour.
^ᵃʷnote:Since it is highly improbable that evidence would be postponed from one Jubilee to another (Rashi) (Or. one includes the other, v. Yad Ramah]. — It may be observed that owing to the discussion on the possibility or need of eight questions, R. Abbahu's objection remains unanswered, unless it be assumed that R. Simeon who maintains that burning is severer than stoning also agrees with the Tanna of the Mishnah that only seven questions are put.
^ᵃˣnote:Cf. supra. 32b. 'They shall take the witnesses from one place to another in order to confuse them.'
^ᵃʸnote:I.e., to defend our view.
^ᵃᶻnote:How does he maintain his objection, seeing that it may rightly be raised against his own view too?
^ᵇᵃnote:Therefore R. Jose maintains that the latter possibility may be disregarded.
^ᵇᵇnote:By saying, e.g., 'I know that I am warned not to do so.'
^ᵇᶜnote:By answering you, e.g., 'Even though I shall be punished by such and such a death, yet I will commit this crime.'
^ᵇᵈnote:Such as a greeting from a disciple to teacher, e.g., 'Peace be unto thee, my Master and Teacher'. V. B.K. 73b; Mak. 6a. If the murder was delayed longer, the plea that he forgot the warning might be accepted. (Rashi)
^ᵇᵉnote:Num. XXV, 1-9. Worshipped by obscene rites. V. infra 60a, and Rashi, on Num. loc. cit., also p. 410, n. 1.
^ᵇᶠnote:[H], Roman, Mercurius, Greek, Hermes, the patron deity of wayfarers. V. p. 410, n. 2.
^ᵇᵍnote:Lev. XX, 17.
^ᵇʰnote:I.e., if the witnesses previously warn him that his proposed action is forbidden on pain of kareth.
^ᵇⁱnote:[H]; excision — punishment by Heaven, where no warning is needed, since God knows whether the culprit was aware of the forbidden nature of his action or not.